PLJ 2021 Cr.C. 1401 (DB)
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Recovery of charas--Benefit of doubt--In narcotic cases it prime duty of prosecution to establish, by producing on record a confirmatory report issued by Chemical Examiner, compiled by following requisite tests in line with Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, that alleged recovered material was in fact contraband--In instant case report issued by Chemical Examiner, Government of Punjab, has not been prepared by following Rule 6 ibid--Prosecution has miserably failed to bring home charge against appellant--Held: It is well settled principle of law that a single instance causing a reasonable doubt in mind of Court entities accused to benefit of doubt not as a matter of grace but “matter of right--Appeal was allowed with benefit of doubt.
[Pp. 1402 & 1403] A & B
2018 SCMR 2039, PLD 2020 SC 57, 2009 SCMR 230 and
2014 SCMR 749.
Mr. Ghulam Abbas Tarar, Advocate for Appellant.
Mr. Shahid Aleem, Additional Prosecutor General for State.
Date of hearing: 27.10.2020.
PLJ 2021 Cr.C. 1401 (DB)
[Lahore High Court, Multan Bench]
Present: tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ.
MUHAMMAD SHAHZAD alias TIKKA--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 379 of 2015, heard on 27.10.2020.
Judgment
Anwaarul Haq Pannun, J.--The appellant Muhammad Shahzad alias Tikka was tried in case F.I.R No. 267/2013 dated 06.05.2013 under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Mumtazabad, Multan, as allegedly recovery of heroin weighing 2077 grams along with sale money of Rs. 2830/- was effected from his possession at the time of his arrest by the police party. On conclusion of trial, the learned trial Court, vide its judgment dated 02.07.2015, has convicted the appellant under Section 9(c) of C.N.S.A, 1997 and sentenced him to Six Years R.I. with a fine of Rs. 800,000/- and in default thereof to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. has been given to the appellant.
2. After framing of formal charge against the accused/ appellant, to which he pleaded not guilty and claimed trial, the prosecution examined five witnesses to prove charge against the appellant. PW-1 Muhammad Kamran No. 1069/C deposited the sealed parcel said to contain heroin in the office of Chemical Examiner. PW-2 Khadim Hussain, ASI, chalked out the formal FIR in this case. PW-3 Zia Akhtar, SI, is complainant of this case. PW-4 Ghulam Muhammad, SI, is recovery witness of the recovery memo of heroin and sale money (Ex.PB) and PW-5 Haider Ali, Inspector, is Investigating Officer of this case. Statement of the accused under Section 342, Cr.P.C. was recorded, wherein he while professing his innocence and false involvement in this case, had refuted all the allegations levelled against him. The accused/appellant did not opt to appear as his own witness under Section 340(2), Cr.P.C., however, in his defence he has produced DW-1 Bashir Ahmad and DW-2 Muhammad Nawaz and also tendered the documents (Mark-A to Mark-D).
3. Arguments heard. Record perused.
4. Leaving aside the verbosity revolving around the demeanor of statements of the PWs, it is straightaway observed that in narcotic cases it is the prime duty of the prosecution to establish, by producing on record a confirmatory report issued by the Chemical Examiner, compiled by following the requisite tests in line with Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, that the alleged recovered material was in fact the contraband. We have noticed that in the instant case the report (Ex.PD) issued by the Chemical Examiner, Government of the Punjab, Multan has not been prepared by following Rule 6 ibid. The Hon’ble Supreme Court of Pakistan in the dictum reported as The State through Regional Director ANF vs. Imam Bakhsh and others (2018 SCMR 2039) has held as under:
“Non-compliance of Rule 6 can frustrate the purpose and object of the Act, i.e. control of production, processing and trafficking of narcotic drugs and psychotropic substances, as conviction cannot be sustained on a Report that is inconclusive or unreliable. The evidentiary assumption attached to a Report of the Government Analyst under Section 36(2) of the Act underlines the statutory significance of the Report, therefore details of the test and analysis in the shape of the protocols applied for the test become fundamental and go to the root of the statutory scheme. Rule 6 is, therefore, in the public interest and safeguards the rights of the parties. Any Report (Form-II) failing to give details of the full protocols of the test applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a Report of the Government Analyst under Section 36(2), “
The above view of the Apex Court has been reiterated in a recently delivered judgment reported as Qaiser Javed Khan vs. The State through Prosecutor General Punjab, Lahore and another (PLD 2020 SC 57).
5. Thus, following the law laid down by the Hon’ble Supreme Court of Pakistan in the dictums supra, which is binding on all Courts, we are of the view that prosecution has miserably failed to bring home charge against the appellant. It is well settled principle of law that a single instance causing a reasonable doubt in the mind of the Court entities the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance in this regard is placed upon the judgments reported as Muhammad Akram vs. The State (2009 SCMR 230) and Muhammad Zaman v. The State and others (2014 SCMR 749).
6. Resultantly, this appeal is allowed, the conviction and sentence recorded by the learned trial Court against the appellant through the impugned judgment dated 02.07.2015 is set aside and he is acquitted of the charge. The appellant is on bail, so his surety is discharged from the liability of bail bond.
(A.A.K.) Appeal allowed
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