IKRAMULLAH Versus State

ASIF SAEED KHAN KHOSA, J.---

Criminal Miscellaneous Application No.413 of 2007

For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of Criminal Appeal No. 70 of 2009 is condoned. Disposed of.

Criminal Appeal No.70 of 2009

2. Ikram Ullah and Hashim Khan appellants were booked and tried in case FIR No.1177 registered at Police Station Gulbahar, Peshawar on 28-10-2005 for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and vide judgment dated 9-12-2006 handed down by the learned Additional Sessions Judge-XI, Peshawar they were convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and were sentenced to imprisonment for life each and to pay a fine of Rs. 1,00,000 each or in default of payment thereof to undergo simple imprisonment for one year each. The benefit under section 382-B, Cr.P.C. was extended to them. The appellants challenged their convictions and sentences before the Peshawar High Court, Peshawar through Criminal Appeal No. 778 of 2006 which was heard and dismissed by a learned Division Bench of the said Court vide judgment dated 20-9-2007. Hence, the present appeal by leave of this Court granted on 11-3-2009.

3. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance.

4. According to the prosecution Ikram Ullah appellant was driving a motorcar and Hashim Khan appellant was sitting on the front seat of that motorcar when it was intercepted by a raiding party and upon search of the vehicle different cartons were recovered which contained forty-eight separate packets of charas. According to the prosecution a sample was taken from each and every recovered packet for its onward transmission to the office of the Chemical Examiner and subsequently the Chemical Examiner had submitted a report maintaining that the samples so sent contained charas. We have particularly noticed that the report submitted by the Chemical Examiner (Exhibit-P.W.2/5) completely failed to mention the basis upon which the Chemical Examiner had come to a conclusion that the samples sent to him for examination contained charas. According to Rules 5 and 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 a complete mechanism is to be adopted by the Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to the necessary protocols and mentioning the tests applied and their results but in the case in hand we note that no protocol whatsoever was mentioned in the report submitted by the Chemical Examiner and no test was referred to on the basis of which the Chemical Examiner had concluded that the samples sent to him for examination contained charas. In the context of the present case Rule 6 is of paramount importance and the same is reproduced below:

"6. 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."

A bare look at the report submitted by the Chemical Examiner in the present case shows that the entire page which was to refer to the relevant protocols and tests was not only substantially kept blank but the same had also been scored off by crossing it from top to bottom. This surely was a complete failure of compliance of the relevant rule and such failure reacted against reliability of the report produced by the prosecution before the learned trial Court. 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 deliver 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.

5. In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the investigating officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit.

6. Apart from what has been observed above Hashim Khan appellant was merely a passenger in the vehicle in issue and the prosecution had failed to bring on the record any piece of evidence whatsoever establishing his conscious possession of the substance recovered from the vehicle. The law is quite entrenched by now that in order to bring home the guilt of a passenger travelling in a vehicle in a case like this it is incumbent upon the prosecution to establish that such passenger knew or was conscious of availability of narcotic substance in the vehicle and still he had opted to travel in that vehicle. In the absence of any such proof having been adduced by the prosecution before the learned trial Court it was legally not possible to record a conviction against Hashim Khan appellant for an alleged possession of narcotic substance.

7. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the learned courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case.

Criminal Miscellaneous Application No. 414 of 2007

8. For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of Criminal Appeal No.354 of 2012 is condoned. Disposed of.

Criminal Appeal No. 354 of 2012

9. A report dated 11-12-2014 has been received from the Superintendent, Central Prison, Bannu informing that Adil Nawab appellant had escaped from the said jail during the night between 14/15-4-2012 and he has become a fugitive from law eversince. The law is settled by now that a fugitive from law loses his right of audience before a court. This appeal is, therefore, dismissed on account of the above mentioned conduct of the appellant with a clarification that if the appellant is recaptured by the authorities or he surrenders to custody then he may apply before this Court seeking resurrection of this appeal.

MH/I-8/SC Order accordingly.