PLJ 2021 Cr.C. (Lahore) 675 (DB)
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Recovery of "charas and heroin"--Marginal witness--Jurisprudence on these issues is very well settled by now--Section 25 of Control of Narcotic Substances Act, 1997 excludes applicability of Section 103, Cr.P.C. therefore, association of witnesses from public is not mandatory in narcotic cases--As regards argument of counsel for appellant that there was a delay in sending samples to Punjab Forensic Science Agency, we again point out that law on this issue is settled--Rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, are directory (and not mandatory) in nature--Mere fact that samples were sent beyond prescribed period of 72 hours would not be fatal unless accused shows that samples were tampered or he was otherwise prejudiced by delay--Counsel for appellant has also challenged report of Punjab Forensic Science Agency (Exh.PG) as per his argument, said report cannot be read into an evidence as same was not clear with respect to test conducted to identify and analyze recovered narcotics--He submitted that it was necessary for Punjab Forensic Science Agency to have appended results of each and every test conducted by them in order to establish identity of narcotics--Report of Punjab Forensic Science Agency--A perusal of same reveals that it mentioned test which were performed on received items of evidence and results and conclusions--As per said report after analysis received items were found to contain “Heroin” and “Charas”, respectively--Report of Punjab Forensic Science Agency is in line with principles enunciated by august Supreme Court of Pakistan--Appeal was dismissed. [Pp. 679, 680] A, D & E
2008 SCMR 649 and 2003 SCMR 1237.
Testimony of police officials--
----Testimony of police officials is as good as evidence of any other witness unless accused is able to establish that police witness who appeared against him had personal motive/mala fides to falsely implicate him in offence. [P. 680] B
2008 SCMR 825, 2013 SCMR 547, 2004 SCMR 988, 2004 SCMR 1361, 2001 SCMR 36, PLD 1996 SC 67 and 1992 SCMR 1617.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 29--Section 29 of Control of Narcotic Substances Act, 1997, which provides that once prosecution is able to bring on record evidence to discharge initial onus of proof then burden shifts upon accused to prove otherwise which he failed to do so in this case. [P. 680] C
Syed Muzamil Hussain Shah Bukhari, Advocate for Appellant.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor-General for State.
Date of hearing: 10.4.2019.
PLJ 2021 Cr.C. (Lahore) 675 (DB)
[Multan Bench, Multan]
Present: Anwaarul Haq Pannun and Sadiq Mahmud Khurram, JJ.
versus
STATE and another--Respondents
Crl. A. No. 436 of 2018, decided on 10.4.2019.
Judgment
Sadiq Mahmud Khurram, J.--The appellant Shah Muhammad alias Shahu son of Shah Nawaz was tried by the learned Additional Sessions Judge, Layyah, in case FIR No. 383 of 2016, dated 22.08.2016 registered at Police Station City Layyah, District Layyah, in respect of an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997. The learned trial Court vide judgment dated 14.03.2018 convicted Shah Muhammad alias Shahu son of Shah Nawaz and sentenced him as infra:
Shah Muhammad alias Shahu son of Shah Nawaz
Rigorous imprisonment for six years under Section 9(c) of the Control of Narcotic Substances Act, 1997 and ordered to pay fine of Rs. 33,000/- and in default thereof to further undergo simple imprisonment for a period of nine months.
The appellant was extended the benefit provided under Section 382-B of the Code of Criminal Procedure, 1898.
2. Feeling aggrieved, Shah Muhammad alias Shahu son of Shah Nawaz (convict) lodged Criminal Appeal No. 436 of 2018 against his conviction and sentence.
3. Precisely the facts necessary, as divulged in the statement of Muhammad Riaz, SI (PW-4), the complainant of the case, are as under:
“Stated that on 22.8.2016, I was posted at Police Station City Layyah. On the same day, I along with Muhammad Akmal 607/HC, Hafeez Ahmad 76/C, Irshad Hussain 348/C while riding on an official vehicle having Registration No. 21/LYB, driven by Rafaqat Ali constable in connection with patrol duty, was present at Gulraiz Hotel Layyah when spy information was received that notorious drug peddler Shah Muhammad while riding over a motorcycle for selling narcotics was coming towards Layyah and upon an immediate action, he can be arrested. Upon this information, I along with other police personnel reached at Sugar Mills Layyah, put barricade there on Karor road and from Karor side, the accused Shah Muhammad, present in the Court, while riding on a motorcycle came there who after viewing the police party, tried to escape, however, I along with other police personnel caught hold him. A shopping bag of blue colour was fastened with the safe guard of the motorcycle and upon search of the aforesaid shopping bag, charas was recovered, weight of which upon weighing was found 1250 grams. Upon personnal search of the accused Shah Muhammad, from his right flank pocket, heroin wrapped in a plastic shopping bag was recovered, weight of which upon weighing was found 400 grams. Charas and heroin were sealed in separate parcels and I took charas P.1 into my possession vide recovery memo. Exh.PC in presence of witnesses, who attested the recovery memo. I also took recovered heroin P.2 into my possession vide recovery memo. Exh.PD in presence of witnesses, who also attested the recovery memo. I also took motorcycle having Registration No. 3473/LYK P.3 (present outside the Court) into my possession vide recovery memo. Exh.PE in presence of the witnesses and recovery memo. Exh.PE was attested by the witnesses. I also drafted the complaint Exh.PA and sent the same to police station through Muhammad Akmal 607/HC for registration of criminal case. In the meanwhile, Muhammad Akbar SI, the Investigating Officer of the case also arrived there. I handed over the recoveries Charas and heroin and motorcycle as well as the arrested accused to the said Muhammad Akbar SI.
On 27.9.2016, I also recorded the statement of Muhammad Hanif ASI and Zafar Iqbal 106/HC of Police Station regarding the safe custody of parcel and for its onward transmission to the office of Punjab Forensic Science Agency, Lahore.”
4. On the above stated facts, FIR No. 383 of 2016 (Exh.PB) dated 22.08.2016 was registered at Police Station City Layyah, District Layyah.
5. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellant was sent to face trial. The learned trial Court framed the charge against the accused on 29.10.2016 under Section 9(c) of the Control of Narcotic Substances Act, 1997. The appellant pleaded not guilty and claimed trial.
6. In order to prove the facts in issue the prosecution examined as many as six witnesses in total. Irshad Hussain 348/C, the marginal witness of recovery memos. (Exh.PC and Exh.PD) appeared as (PW-5) and Muhammad Riaz, S.I appeared as (PW-4) who both narrated the facts leading to the recovery of “Charas” weighing 1250 grams (Exh.P1) and “Heroin” weighing 400-grams (Exh.P2) and made their detailed statements before the learned trial Court. Zafar Iqbal ASI (PW-1) recorded the formal FIR Exh.PB on 22.08.2016. Muhammad Hanif ASI (PW-2) who stated that on 26.09.2016 Zafar Iqbal 106/HC (PW-3) handed over to him two sealed parcels said to contain “Charas” and “Heroin” for their onward transmission to Punjab Forensic Science Agency which he deposited there intact. Zafar Iqbal 106/HC (PW-3) stated that on 22.08.2016, he received two sealed parcels said to contain “Charas” and “Heroin” and on 26.09.2016 he handed over two sealed parcels to Muhammad Hanif ASI (PW-2) for their onward transmission to Punjab Forensic Science Agency. Muhammad Akbar S.I (PW-6) investigated the case from 22.08.2016 till 04.09.2016 and detailed the facts of the investigation in his statement before the learned trial Court.
7. On 27.10.2017, the learned ADPP gave up Ghulam Jillani 681/C, PW being unnecessary and closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency (Exh.PG).
8. After closing of prosecution evidence the statement of appellant was recorded under Section 342 of the Code of Criminal Procedure, 1898 and the appellant pleaded his innocence and in reply to as to why the prosecution witnesses had deposed against him, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution case, being subordinates of the Investigating Officer and the complainant. The appellant opted not to appear in terms of Section 340(2) of the Code of Criminal Procedure, 1898, however, tendered the original passport Bearing No. E215646097 as Exh.DA in his defence and closed the defence evidence on 17.11.2017.
9. After completion of evidence and hearing both the parties the learned trial Court held the appellant guilty of offence and sentenced the appellant as referred to above.
10. The learned counsel for the appellant argued that the appellant is innocent and he has been falsely implicated in the instant case. The learned counsel contended that all the witnesses in this case are from the police and the prosecution has not produced even a single independent/private witness who could corroborate their testimony. The learned counsel contended that this was a violation of Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 and as such, the report of the Punjab Forensic Science Agency (Ex.PG) has no legal value and cannot be read against the appellant. Lastly, the learned counsel argued that the prosecution evidence is discrepant and incoherent. The learned counsel contended that there is at least one contradiction in the testimony of the PWs that has spoiled it altogether and has made it untrustworthy.
11. On the contrary, the learned Deputy Prosecutor General representing the State supported the impugned judgment and argued that the prosecution has proved its case against the appellant beyond any shadow of doubt. He further submitted that the appellant himself got the contraband recovered. He contended that the appellant has failed to prove the motive for false implication that he had pleaded in his defence. The learned Deputy Prosecutor General further submitted that all the witnesses have corroborated each other. He requested that the appeal be dismissed.
12. We have heard the learned counsel for the parties and have perused the record.
13. The case of the prosecution hinges on the evidence of Irshad Hussain 348/C, the marginal witness of recovery memos. (Exh.PC and Exh.PD) who appeared as (PW-5) and Muhammad Riaz, S.I who appeared as (PW-4) and both narrated the facts leading to the recovery of “Charas” weighing 1250 grams (Exh.P1) and “Heroin” weighing 400-grams (Exh.P2). We have observed that their statements are coherent and inspire confidence. These PWs have corroborated each other on all material points, including date, time and place of occurrence, the quantity of the recovered narcotics and the manner in which recovery was effected. We have noted that the main recovery witnesses, namely, Irshad Hussain 348/C, the marginal witness of recovery memos. (Exh.PC and Exh.PD) who appeared as (PW-5) and Muhammad Riaz, S.I who appeared as (PW-4) are consistent on all facts and their version is vouched by the report of the Punjab Forensic Science Agency (Exh.PG).
“Rule 6 on the other hand stands on a different statutory footing. It provides that the Report of the Government Analyst, after the test and analysis, is to furnish the result together with full protocols of the test applied. The accuracy of test and analysis and the correct application of the full protocols alone can determine if the recovered substance is a narcotic drug or a psychotropic or controlled substance. “Protocol” means an explicit, detailed plan of an experiment, procedure or test or a precise step-by-step description of a test, including the listing of all necessary reagents and all criteria and procedures for the evaluation of the test data. Rule 6 requires that full protocols of the test applied be part of the Report of the Government Analyst. Every test has its protocols, which are internationally recognized and a test without the observance of its protocols has no sanctity. “Full Protocols” include a description of each and every step employed by the Government Analyst through the course of conducting a test. Hence, the Report under Rule 6 must specify every test applied for the determination of the seized substances with the full protocols adopted to conduct such tests.
16. 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). Resultantly, it will hopelessly fail to support conviction of the accused. This Court has already emphasized the importance of protocols in Ikramullah’s case (supra).
17. Rule 6 also requires the issuance of quadruplicate copies of the Report and the requirement of two signatures on the Report of the Government Analyst in Form-II. Section 36 states that the Report shall be signed by the Government Analyst only, therefore the requirement of two signatures and the issuance of quadruplicate copies, are at best, a good practice, but are merely directory provisions, as their non-compliance does not offend the Act. At this stage it is important to point out that this Court, in a series of judgments, has considered the scope of Rule 4(2) of the Rules, which provides that the samples be dispatched to the Government Analyst not later than 72 hours of its seizure and has held it to be a directory provision. Reliance is placed on Muhammad Sarfraz v. State (2017 SCMR 1874), Gul Alam v. The State (2011 SCMR 624) and Tariq Mehmood v. The State (PLD 2009 SC 39). In Taimoor Khan v. State (2016 SCMR 621) this Court has additionally held that Rules 3, 4 and 6 are mandatory. Deeper examination of this judgment reveals that reference was only being made to Rule 4(1), whereas, Rule 4(2) was not discussed, separately. This understanding falls in line with the consistent view of this Court regarding Rule 4(2) as referred to above.
18. It is important to underline that even if a rule is directory, its substantial compliance as opposed to strict compliance is required. Non-compliance of such a rule might not invalidate the act but as it provides a legislative process based on public interest, transparency and good governance, its substantial compliance is necessary.”
17. For the above reasons, we hold that the prosecution has proved its case against the appellant beyond reasonable doubt. Accordingly, we dismiss this appeal and uphold the impugned judgment of the learned Additional Sessions Judge, Layyah.
18. The case property shall be dealt with as directed by the learned trial Court. The record of the learned trial Court be sent down immediately.
(A.A.K.) Appeal dismissed
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