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Criminal Revision No. 167 of 1983, decided on 21st February, 1984.

‑‑‑Art. 4‑‑Criminal Procedure Code (V of 1898), 5.439‑‑Intoxicant, possession of‑‑Only five grams of substance out of quantity recovered from possession of accused sent to Chemical Examiner who without giving reasons saying that substance. was Charas‑‑Chemical Examiner's report without giving details of tests applied by him for coming to that conclusion, held, on such report amounted to delegation of judicial functions of criminal Court to Chemical Examiner which could not be permitted‑‑No reliance, held further, could be placed on such report which was meagre and cryptrical.

Mst. Gajrani and another v. Emperor A I R 1933 All. 394; Happu v. Emperor A I R 1933 All. 837; Behram Sheriar Irani v. Emperor A I R 1944 Bom. 321; Sunity Kumar Roy v. Chairman, Jessore Municipality and another P L D 1971 Dacca. 5 and Ali Haider v. The State 1981 P Cr. L J 97 ref.

‑‑‑Art. 4‑‑Criminal Procedure Code (V of 1898), S.439‑‑Intoxicant, possession of‑‑One line report of Chemical Examiner stating that packet contained Charas, held, could not satisfy judicial conscience of Court and could not prove on record that sample of substance recovered from accused was Charas.

‑‑‑Art. 4‑‑Criminal Prawedure Code (V of 1898), 5.439‑‑Intoxicant, possession of‑‑Report of Chemical Examiner meagre and cryptical and comprising of only one line that sample of substance was Charas‑‑No reliance, held, could be placed on such report‑‑Conviction and sentence set aside.

Muhammad Ilyas Siddiqui for Petitioner.

S.M. Naeem for the State.

Dates of hearing: 31st January; 4th and 5th February, 1984.

This is a, revision against the order dated 20‑11‑1983 of the Addl. Sessions Judge II, Rawalpindi, whereby he dismissed the appeal of the petitioner against his conviction and sentence under Article 4 of P.O. No. 4 of 1979, as awarded by the learned Magistrate by his judgment dated 16‑8‑1983.

2. The facts of the case are that on a secret information, raiding party consisting of members of Excise Intelligence Bureau, Excise Department and police was formed. It raided Koila Centre and arrested the petitioner. On his personal search 70 grams of Charas was recovered from him. It was taken into possession. Out of 70 grams of Charas, 5 grams was taken out and made into a sealed parcel and sent to the Chemical Examiner. His report states that the said packet contained Charas.

3. At the trial Muhammad Anwar Inspector Excise Intelligence Bureau as P.W.1, Mushtaq Ahmad Janjua Assistant Excise Officer as P.W.5 and Allah Dad Khan Inspector Police Station Cantt., Rawalpindi as P.W.6, proved the said recovery.

4. The learned Magistrate convicted the petitioner under Article 4 of P.O. No.4 of 1979 and sentenced him to undergo one year's R.I. and a fine of Rs. 500 or in default to undergo further R.I. for three months.

The petitioner filed an appeal which was dismissed by the Additional Sessions Judge II, Rawalpindi, by his order dated 20‑11‑1983.

5. Learned counsel for the petitioner has raised the following points in this revision:‑

(i) That the report of the Chemical Examiner certifying that the parcel sent to him contained Charas is cryptical and incomplete and does not give the grounds of his opinion and was not sufficient for conviction.

(ii) That the recovery of Charas took place from the petitioner in a thickly populated place but no person from the locality was produced in support of the alleged recovery.

(iii) That the two other accused arrested for offences brought to light in the same transaction have been acquitted on the basis of evidence of same set of witnesses.

6. I need not decide all the three points its in my opinion, the case can be decided on the first point raised in this petition.

7. The case of the prosecution is that out of the quantity recovered from the petitioner, a sample of 5 grams of Charas was sent to the Chemical Examiner. I have seen the Chemical Examiner's report. It is a one line report which states that the above packet contains Charas. The conviction of the petitioner solely depends on the report that the sample taken from the substance recovered from the petitioner was Charas. Therefore, the fate of the case of the petitioner hinges on the proof of the circumstance that the report of the Chemical Examiner was sufficient for the conviction of the petitioner. It is, however, not possible to place aboslute reliance on the report of the Chemical Examiner, as, it is too meagre and cryptical a report to allow this Court to place absolute faith on the same. Convicting the petitioner merely on the ground that 5 grams of substance out of quantity recovered from the petitioner was found by the Chemical Examiner to be Charas without any reason having been given by the said Chemical Examiner and without; his having given the details of the tests applied by him for coming to' that conclusion amounts to delegation of the judicial functions of the criminal Court to the Chemical Examiner. This cannot be permitted. I am supported in this view of mine by a chain of authorities on the point. In Mst. Gajrani and another v. Emperor A I R 1933 All. 394, it was laid down that it is not enough for the Chemical Examiner merely to state his opinion. He must state the grounds on which he arrives at that opinion. As the Chemical Examiner merely tenders a report and he does not appear to give evidence. It is extremely desirable that his report should be full and complete and take the place of evidence which he would give if he were called to court as a witness. Again in Happu v. Emperor A I R 1933 All. 837, it was laid down that no person ought to be put in peril of capital or any punishment on a written report of a Chemical Examiner not given on oath and untested by cross‑examination and to accept such a report, whatsoever it may contain, as a proof of anything is an impossible proposition of law. Again in Behram Sheriar Irani v. Emperor A I R 1944 Boo. 321, it was held that the weight to be attached to a report of a chemical analyser depends to a considerable extent on the reasons which the chemical analyser gives for the conclusion which he has arrived at, and in some cases, where the matter is to be reported on is the presence of certain substances in the article submitted for examination, much would turn on the quantity of the incriminating substance found in the article. If the chemical analyser's report alone is to be considered sufficient, it should contain all the information which that officer himself would have been able to furnish if he had been examined as a witness. Again in Sunity Kamar Roy v. Chairman, Jessore Municipality and another PLD 1971 Dacca. 5, it was held that the report of food analyser must be full and complete so as to contain the grounds of opinion. It was further held that one line report of the analyser is not enough and it is unsafe to rely solely on such a report and that no person should be put in the peril of conviction and sentence on the basis of a report which is untested by cross‑examination. Again in Ali Haider v. The State 1981 P Cr. L J 97, it was held by a Division Bench of Lahore High Court in a case in which the report of fire‑arm expert merely stated his opinion unsupported by any reason, that such a report cannot satisfy conscience of court particularly where guilt or innocence of accused turns almost entirely on its analysis. It was further held that in the anxiety to expedite the disposal of cases the interests of justice cannot be sacrificed and the court can refuse to place any reliance on the opinion of an expert which is unsupported by any reason.

8. One line report of the Chemical Examiner stating that the packet contained Charas does not satisfy judicial conscience of this Court and as such it is not proved on the record that the sample substance recovered from the petitioner was Charas or that therefore the substance weighing 70 grams recovered from the petitioner was Charas.

9. For the above reasons, I accept this revision petition, set aside the conviction and sentence of the petitioner and acquit him. He shall be set at liberty forthwith if not required in any other case.

M. Y. H. Petition accepted.

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