-Report is not on the prescribed paper. It is also not admitted by the prosecution that it had a seal/stamp over it. It appears that this report is prepared on the black and white photocopy of the format paper but signed by the Chemical Examiner, therefore, it is full of doubt--

 PLJ 2022 Cr.C. 913 (DB)

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9(c)--Conviction and sentence--Challenge to--Produced 20 packets of heroin concealed behind the rear seat of the car and in this way, he produced 30 packets of heroin in toto. The packets were wrapped in yellow plastic tape, which were weighed and weight of each packet was found of 500 grams and in this way, the total quantity of the recovered heroin was found 15 kg out of which 10 grams was separated from each packet for chemical analysis--Heroin is either in the powder form or in the crystal form and that it has three colours; i.e. white, off-white and light brown but in the present case he has not mentioned the colour of the heroin--The case property was de-sealed in the Court and some of the packets were found of white colour, some of off-white colour and some were dark colour--Prosecutor, therefore, requested the Court to summon Forensic Scientist, hence Forensic Scientist was produced as PW-5--He went on to admit that if 1 gram heroin is mixed in 100 grams other white colour powder even then the result of the laboratory would have been the same as in this report--Heroin is mixture of different chemicals and was the salt of morphine derived from the poppy plant. According to him, any material containing 0.2% morphine can cause intoxication and that in the said report no percentage of the morphine was mentioned--If some quantity of heroin is mixed in other chalk powder of white colour our result would be the same as mentioned in the report and we will not mention any separate quantity of white colour powder or any other material nor it will come in our analysis. In other words, he had not given the intoxicating effect of heroin in the report--There is no cavil to the proposition that a report of Chemical Examiner being an expert report has to be accepted as a whole but if it not prepared and written according to the prescribed procedure and law, it can discarded by High Court--Report is not on the prescribed paper. It is also not admitted by the prosecution that it had a seal/stamp over it. It appears that this report is prepared on the black and white photocopy of the format paper but signed by the Chemical Examiner, therefore, it is full of doubt--This report is not the original report which could not be even tendered in evidence--Appeal is allowed and the appellant is acquitted of the charge.

                                                        [Pp. 916 & 917] A, B, C, D, E, & F

Sardar Khurram Latif Khan Khosa and Mr. Bilawal Ali Nawaz, Advocates for Appellant.

Malik Muhammad Irfan, Special Prosecutor for ANF for State.

Date of hearing: 13.12.2021.

 PLJ 2022 Cr.C. 913 (DB)
[Lahore High Court, Lahore]
Present: Ali Baqar Najafi and Sardar Muhammad Sarfraz Dogar, JJ.
PACHA KHAN--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 1503 of 2015, heard on 13.12.2021.

Judgment

Ali Baqar Najafi, J.--Through this appeal under Section 48 of Control of Narcotic Substances Act, 1997, the judgment dated 23.07.2015 passed by the learned Sessions Judge/Judge Special Court, (CNSA), Mianwali, in case FIR No. 06/2012, dated 11.06.2012, under Section 9(c) of CNSA, 1997 registered at Police Station ANF, Mianwali has been challenged whereby the appellant was convicted under Section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced to life imprisonment with fine of Rs. 3,00,000/- in default whereof to undergo further simple imprisonment for one year. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.

2. Brief facts of the prosecution case against the appellant as narrated in the complaint (Exh.PE) by Nazim Shehzad Virk SI/PW-4 is that on 11.06.2012 the high ups of the ANF received spy information that one person, namely, Pacha Khan resident of Sawabi would pass from Mianwali along with huge quantity of narcotics in Toyota Car GLI No. ASF-716 Sindh as he used to bring the narcotics from Sawabi to Punjab for supply in different cities. Upon the said information, a raiding party was constituted comprising of complainant and other officials of ANF. The raiding party along with the informer arranged a picket (Nakka) near Nammal College, Tala Gang Road, District Mianwali under the supervision of Abdul Kabeer Khan, Assistant Director PS ANF Mianwali. At about 3.30 p.m., the said vehicle was seen coming towards Mianwali which was stopped. The complainant encircled the car and apprehended the driver who told his name as Pacha Khan/appellant. When asked about narcotics after some hesitation, he produced 05 packets containing heroin concealed under the driving seat. Thereafter, he also produced 5 packets of heroin concealed under the front seat of the car. Thereafter he produced 20 packets of heroin concealed behind the rear seat of the car and in this way, he produced 30 packets of heroin in toto. The packets were wrapped in yellow plastic tape, which were weighed and weight of each packet was found of 500 grams and in this way, the total quantity of the recovered heroin was found 15 kg out of which 10 grams was separated from each packet for chemical analysis. The recovered narcotics as well as sample were taken into possession vide recovery memo. (Exh.PB). He drafted the complaint (Exh.PE) on the basis of which formal FIR (Exh.PA) was registered.

3. After completion of investigation by Nazim Shehzad SI/  PW-4 he submitted challan against the appellant before the trial Court. On indictment, the appellant pleaded not guilty and claimed trial. The prosecution produced five witnesses, namely, Tauseef Aslam Constable/PW-1, Taqqi Abbas Inspector/SHO/PW-2, Nusrat Ali Constable/PW-3, Nazim Shehzad Virk SI/PW-4 and Qasim Zafar Forensic Scientist/PW-5. Thereafter, the accused/appellant was examined under Section 342, Cr.P.C., wherein he professed his innocence, denied all the allegations levelled against him and claimed trial. He did not opt to depose within the scope of Section 340(2), Cr.P.C. nor adduced evidence in defence. In reply to the question “Why this case had been lodged against you and why the PWs had deposed against you”, he stated as under:-

“Nazim Shehzad PW-4 is the complainant, recovery witness and as well as the I.O. of this case. The PWs are subordinate to the I.O. PW-4. They deposed against me just to strengthen the fake case. The ANF officials booked me in this case just to grab money worth Rs. 85000/- from me.”

4. Imtiaz Ahmad Inspector appeared as CW-1 whose statement was cross-examined by the defence counsel but was not cross-examined by the Special Prosecutor for ANF.

5. After conclusion of the trial, the learned trial Court pronounced its verdict against the appellant and awarded him aforesaid punishment.

6. We have heard learned counsel for the parties and perused the record with their able assistance.

7. Scanning the prosecution evidence, we have noted that Tauseef Aslam Constable/PW-1 stated that Moharrir, namely, Taqqi Abbas ASI/PW-2 handed over to him 30 sealed parcels of heroin weighing 10 grams each for their onward transmission to the office of PFSA, Lahore which he deposed in the said office the same day. PW-2 Taqqi Abbas stated that he received 30 sealed sample parcels of heroin weighing 10 grams each and 03 sealed parcels of remaining bulk of heroin containing seal as “AA” sent by Nazim Shehzad Virk SI/PW-4 through Muhammad Afzal constable (not produced). Nazim Shehzad Virk SI/PW-4 stated that he being the complainant as well as investigating officer of this case weighed all the 05 packets recovered underneath the driving seat, 05 packets recovered underneath the front seat and 20 packets recovered from the rear seat, all total 30 packets with the weight of 15 kg, since each packet contained 500 grams of heroin. He statedly made 30 sealed parcels of samples and 03 sealed parcels of remaining bulk. He then stated that he lodged Pacha Khan/appellant in the lock up and handed over the sealed parcels as well as other case property to the Moharrir of the police station. He did not mention the name of Muhammad Afzal Constable (not produced) against the statement of Taqqi Abbas/PW-2. He admitted that he did not record any statement of Assistant Director, namely, Kabeer Khan who supervised the raid nor cited him as a witness. He also admitted that he firstly submitted the incomplete challan as the report of Chemical Examiner was awaited and then subsequently on 17.09.2012 he submitted the complete challan along with the report. He also admitted that during this tenure, he did not receive any correspondence from the office of Chemical Examiner regarding the loss of the report. He also admitted that Pacha Khan/appellant was not the owner of the vehicle/car (P-9) and that he had no previous record of any involvement in the criminal case, therefore, the prosecution case regarding his previous conduct as known inter-provincial drug-dealer has not been supported. According to him, one Farid Ullah was the owner of the substance who was not interrogated. He admitted that he had conducted several investigations of heroin cases and he has noticed that the heroin is either in the powder form or in the crystal form and that it has three colours; i.e. white, off-white and light brown but in the present case he has not mentioned the colour of the heroin allegedly recovered from the appellant. Besides, the case property was de-sealed in the Court and some of the packets were found of white colour, some of off-white colour and some were dark colour. He also admitted that he did not state that after taking the sample from each packet he again wrapped the packets with the tape. Nusrat Ali Constable/PW-3 another recovery witness while supporting the statement of complainant, further narrated that the colour of the heroin was not mentioned in the recovery memo. (Exh.PB) and that he has seen the case property present in the Court and according to him it was off white colour in all 30 packets.

8. When the report of the Chemical Examiner was being tendered in evidence, before the trial Court the learned defence counsel had raised objection that it was not an original report, therefore, could not be tendered in evidence. Learned Prosecutor, therefore, requested the Court to summon Forensic Scientist, hence Qasim Zafar Forensic Scientist was produced as PW-5 who stated that no colour, aroma or any other description of case property is mentioned in report (Exh.PG). He also stated that the possibility of causing intoxication in the substance was also not mentioned. He went on to admit that if 1 gram heroin is mixed in 100 grams other white colour powder even then the result of the laboratory would have been the same as in this report. He also stated that heroin is mixture of different chemicals and was the salt of morphine derived from the poppy plant. According to him, any material containing 0.2% morphine can cause intoxication and that in the said report no percentage of the morphine was mentioned. Importantly, he admitted that the paper used for the written report in the office of PFSA is always a special type of paper having printed insignia/monogram and every such report bears PFSA serial number and a stamp but this practice was adopted since October, 2012. He admitted that on the report (Exh.PG) neither any monogram nor any serial number was mentioned. On re-examination the witness again stated that if some quantity of heroin is mixed in other chalk powder of white colour our result would be the same as mentioned in the report (Exh.PG) and we will not mention any separate quantity of white colour powder or any other material nor it will come in our analysis. In other words, he had not given the intoxicating effect of heroin in the report.

9. Learned Prosecutor submits that in case titled “Taimoor Khan and another vs. The State and another” reported as 2016 SCMR 621, the report has to be accepted and it cannot be questioned. With reference to this argument, there is no cavil to the proposition that a report of Chemical Examiner being an expert report has to be accepted as a whole but if it not prepared and written according to the prescribed procedure and law, it can discarded by this Court. In the present case, it is not denied by the prosecution that the report is not on the prescribed paper. It is also not admitted by the prosecution that it had a seal/stamp over it. It appears that this report is prepared on the black and white photocopy of the format paper but signed by the

Chemical Examiner, therefore, it is full of doubt. By relying upon case titled “Ikram Ullah and others vs. The State” reported as 2015 SCMR 1002, we hold that this report is not the original report which could not be even tendered in evidence. Obviously, if a report is not there, the narcotics cannot be proved. Relevant extract of para 4 is reproduced as under:

“Section 36 of the Control of Narcotic Substances Act, 1997 requires a Government Analyst to whom a sample of the recovered substance is sent for examination to the person submitting the sample a signed report in quadruplicate in “the prescribed form” and, thus, if the report prepared by him is not prepared in the prescribed manner then it may not qualify to be called a report in the context of Section 36 of the Control of Narcotic Substances Act, 1997 so as to be treated as a “conclusive” proof of recovery of narcotic substance from an accused person.”

10. In this view of the matter, this appeal is allowed and the appellant is acquitted of the charge. He is behind the bars, therefore, he be released forthwith if not required in any other criminal case.

(A.A.K.)          Appeal allowed