2006 PLP 401 (YLR)

SHAHZAD AKBAR KHAN, J.--The appellant Mamoor Shah was tried by the learned Special Judge/Sessions Judge, Peshawar for an offence under section 9 of the Control of Narcotic Substances Act,1997. He was found guilty and was convicted under section 9(b) of the afore-mentioned Act. He was sentenced to undergo two years rigrous imprisonment and to pay a fine of Rs.1,000 or in default of payment of fine he was to further undergo one months S.I. The instant appeal has been filed calling in question the conviction and sentence of the appellant.

2. On 15-8-2004 Muhammad Anwarullah Khan, S.I., S.H.O,, P.S. Railway Peshawar Cantt. made a report in the form of Murasila stating therein that he along with other police functionaries was checking Bogy No.16. The appellant was found present there in a suspected condition. His person was searched through Zarif Khan LHC (P.W.3) and was found possessive of Charas weighing 650 grams which was concealed in his Chapels.5 gram out of the recovered substance was separated and sent for chemical analysis duly sealed. The recovery memo. was also prepared attested by the police officials. The Murasila culminated into the registration of case No.140. The appellant was arrested and on the completion of investigation he was put on trial.

3. In order to prove its case the prosecution examined Muhammad Anwarullah Khan complainant and the investigator of the case while Zarif Khan (P.W.3) deposed as a witness to the recovery memo. Exh.P.B. The report of the F.S.L. was also received in positive. The learned trial Court believed the evidence of the prosecution and recorded the impugned conviction and sentence.

4. The learned counsel appearing on behalf of the appellant has emphatically argued that the report of the F.S.L. is wholly incomplete as the same does not bear the signatures of the Chemical Examiner and the Chief Chemical Examiner in spite of the fact that their designations have duly been recorded which mean that such a report has to be signed by both these persons. He bitterly assailed the report on the arguments that the same is not prepared on Form II prescribed by rule 6 C.N.S. (Government Analysts) Rules, 2001. He urged that the impugned report is on a plain paper consisting of only two lines and does not bear the necessary particulars of the case. He further urged that the sample was not sent to the F.S.L. within 72 hours as required by the rules apart from the fact that no public witness was associated with the recovery proceedings. He also contended that the appellant does not bear any antecedent of his involvement in business of narcotics.

5. On the other hand the learned Deputy Attorney General endeavoured to defend the impugned judgment. He contended that the report of F.S.L., though not on the prescribed form but is in positive and it is not essential that such a report should be given on Form II prescribed by rule 6 referred above. He contended that the recovery of the narcotic from the possession of the appellant has been duly proved as one of the attesting witness, i.e., P.W. Zarif Khan has recorded his statement.

6. We have heard and considered the arguments of the learned counsel for the parties and have gone through the record. In case of narcotics the prosecution is under a heavy legal obligation to prove that the material recovered from the possession of an accused person was narcotic in any form recognized by the Control of Narcotic Substances Act, 1997. For this purpose the report of the Forensic Science Laboratory assumes great importance as the nature of the substance can be determined only on the Chemical Examination. We have seen the report of the Chemical Laboratory which is not only not prepared on the requisite pro forma but also does not bear the signatures of Chemical Examiner and Chief Chemical Examiner despite the fact that the designation of both the authorized officers is provided at the bottom of the report. The requisite form, i.e., Form II meant for the result of the chemical analysis is requirement of rule 6 of C.N.S. (Government Analysts) Rules, 2001. Owing to its relevancy the same is reproduced below:-- "Report of result of test or analysis.

After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II."

7. Non-preparation of the F.S.L. report on the prescribed form is in fact violation of the statutory rules and such a legal infirmity would render the report of the chemical analysts nullity in the eyes of law. A bare reading of the form indicates that it contains columns for a comprehensive description about the sample including the case F.I.R. Number to which the sample relates. From the impugned report it is patently clear that it is short of the requisite descriptions, therefore, it cannot be said that the report in question is related to the instant case.

8. On the above stated facts and circumstances we hold that the F.S.L. report of the instant case does not comply with the legal requirements and as such it cannot be used against the appellant leading us to the conclusion that the prosecution has not been able to prove that the material recovered from the possession of the appellant was in fact Charas.

9. Resultantly this appeal is allowed. The conviction and sentence of the appellant is set aside. He was ordered to be released from jail forthwith on 11-11-2005 if not required in any other case. These are the reasons for our short order dated 11-11-2005. H.B.T./583/P?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.