-Recovery of charas--It is by now well settled that since provisions of Control of Narcotic Substances Act, 1997 provide stringent punishments, therefore, their proof has to be construed strictly and benefit of any doubt in prosecution case must be extended to accused-

 PLJ 2021 Cr.C. (Lahore) 228 (DB)

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9(c)--Conviction and sentence--Challenge to--Benefit of doubt--Recovery of charas--It is by now well settled that since provisions of Control of Narcotic Substances Act, 1997 provide stringent punishments, therefore, their proof has to be construed strictly and benefit of any doubt in prosecution case must be extended to accused--Harder sentence, stricter standard of proof--Seeking guidance from abovementioned judgments of august Supreme Court of Pakistan, we proceed to decide instant case--Although he stated that on 03.08.2015, one sealed parcel said to contain Charas weighing 1430-grams was handed over to him and he kept same in Mall-Khana of police station for safe custody but said prosecution witness did not mention name of person, who handed over to him parcel of contraband material--Safe custody of parcel of case property has not been proved in this case, which has created serious doubt in prosecution case--Undisputedly, it is settled by now that any report failing to describe in it, details of full protocols and tests applied will be inconclusive, unreliable suspicious and untrustworthy and will not meet evidentiary presumption attached to a Report of Government Analyst under Section 36(2) of Act ibid--In report it is simply mentioned that certain tests were conducted and contraband material recovered in this case found to be Charas instead of mentioning details of tests applied on recovered material and their protocols as required by law--evidentiary value of above said report has been evaluated by us in light of Control of Narcotic Substances (Government Analysts) Rules, 2001--Rule 6 of said Rules makes it imperative on an analyst to mention result of material analyzed with full protocols applied thereon along with other details in report issued for test/Analysis by Laboratory--Above said view has been further fortified in recent case law titled as "Khair-ul-Bashar vs. State" (2019 SCMR 930)--Court have also requisitioned attested copy of FIR in case of "Khair-ul-Basher" supra i.e., FIR No. 18, dated 15.01.2016, offence under Section 9(c) of Control of Narcotic Substances Act, 1997, registered at police station Westridge, District Rawalpindi, as well as, attested copy of report of Punjab Forensic Science Agency, Lahore, exhibited as in said case before concerned trial Court--report of Punjab Forensic Science Agency, Lahore, produced in evidence in case of "Khair-ul-Basher" supra is identical with report of Punjab Forensic Science Agency, Lahore, produced in evidence of present case before learned trial Court--As identical report in case of "Khair-ul-Basher" supra has not been relied upon by august Supreme Court of Pakistan, therefore, identical report of Punjab Forensic Science Agency produced in evidence of this case by prosecution is also not worthy of reliance--Although learned Deputy Prosecutor General has argued that appellant cannot be acquitted on abovementioned sole ground of non-mentioning of protocols/full details of test applied, in report of Punjab Forensic Science Agency, Lahore but as mentioned earlier, prosecution has also failed to prove safe custody of parcel of case property--Even otherwise, august Supreme Court of Pakistan in case of "Khair-ul-Bashar" supra, acquitted accused of said case on abovementioned sole ground of non-mentioning of protocols/full details of tests applied in report of Punjab Forensic Science Agency, Lahore.  [Pp. 231, 232, 233 & 234] A, B, C, D & E

 

M/s. Naila Mushtaq Ahmed Dhoon, Advocate and M. Mushtaq Ahmed Dhoon, Advocate for Appellant.

Mr. Muhammad Waqas Anwar, Deputy Prosecutor General for State.

Date of hearing: 14.10.2020.

 PLJ 2021 Cr.C. (Lahore) 228 (DB)
Present: Malik Shahzad Ahmad Khan and Ch. Mushtaq Ahmad, JJ.
MUHAMMAD SHAHZAD alias BILLA--Appellant
versus
STATE and another--Respondents
Crl. A. No. 185329 of 2018, heard on 14.10.2020.

Judgment

Malik Shahzad Ahmad Khan J.--This appeal is directed against judgment dated 26.02.2018, passed by the learned Additional Sessions Judge/Special Judge CNSA Court, Sialkot, whereby, in case F.I.R No. 671/2015 dated 03.08.2015, registered at Police Station Muradpur, District Sialkot, under Section 9(c) of the Control of Narcotic Substances Act, 1997, the learned trial Court convicted Muhammad Shahzad alias Billa appellant and sentenced him as under:

Under Section 9(c) of Control of Narcotic Substances Act 1997--to four years and six months R.I with fine of Rs. 20,000/- and in default of payment thereof the appellant was directed to further undergo S.I for five months. The benefit of Section 382-B, Cr.P.C. was also extended to the appellant.

2. Briefly, the accusation levelled in the FIR against the appellant is that on 03.08.2015, Ghulam Murtaza ASI (complainant/PW-2), along with other police officials was present at Pulli Palkhu Naala, Head Marala Road, Sialkot. In the meanwhile, a person came from the side of Maachi Khokhar, who on seeing the police party tried to turn back but he was overpowered by the police. The said person disclosed his name as Muhammad Shahzad alias Billa (appellant). On checking, 1430-grams Charas was recovered from the shopping bag, which the appellant was holding in his right hand. A parcel of whole the recovered Charas was prepared for Chemical Analysis. The appellant was interrogated and challaned to face the trial. The charge was framed against the appellant on 06.10.2015, to which he pleaded not guilty so the prosecution was directed to produce its evidence. The prosecution produced seven witnesses to prove its case. The learned Additional Sessions Judge/Special Judge CNSA Court, Sialkot, after recording the statement of the appellant under Section 342 Cr.P.C and hearing the arguments, passed the impugned judgment, whereby, the appellant was convicted and sentenced as mentioned and detailed above.

3. Feeling aggrieved of the impugned judgment, the instant appeal has been preferred by the appellant.

4. Learned counsel for the appellant in support of this appeal contends that there are material contradictions in the statements of the prosecution witnesses, which have not been properly appreciated by the learned trial Court while passing the impugned judgment; that the safe custody of parcel of case property could not be established in this case; that full protocols were not mentioned by the office of Punjab Forensic Science Agency while preparing the report (Ex.PE); that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, the appellant may be acquitted from the charge while setting aside the impugned judgment.

5. On the other hand, the learned Deputy Prosecutor General has supported the impugned judgment of the learned trial Court by contending that the prosecution has proved its case against the appellant beyond the shadow of any doubt, therefore, the appellant was rightly convicted and sentenced by the learned trial Court; that the appellant cannot be acquitted on the sole ground that full protocols have not been mentioned in the report of Punjab Forensic Science Agency; that there is no substance in the present appeal, therefore, the same may be dismissed.

6. Arguments heard. Record perused.

7. It is by now well settled that since the provisions of The Control of Narcotic Substances Act, 1997 provide stringent punishments, therefore, their proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused. Reference in this respect may be made to the case of "Muhammad Hashim vs. The State" (PLD 2004 Supreme Court 856). Dealing with the same proposition, the Hon'ble Supreme Court of Pakistan held in the case of "Ameer Zeb vs. The State" (PLD 2012 Supreme Court 380) that harder the sentence, stricter the standard of proof. Seeking guidance from the abovementioned judgments of the august Supreme Court of Pakistan, we proceed to decide the instant case. We have noted that Mehmood Ahmad 785/MHC, appeared in the witness box as PW-1. Although he stated that on 03.08.2015, one sealed parcel said to contain Charas weighing 1430-grams was handed over to him and he kept the same in the Mall-Khana of police station for safe custody but the said prosecution witness did not mention the name of the person, who handed over to him the parcel of contraband material. Keeping in view the abovementioned facts, the safe custody of parcel of case property has not been proved in this case, which has created serious doubt in the prosecution case. Reliance in this respect is placed on the judgments passed by the August Supreme Court of Pakistan in the cases reported as "Amjad Ali vs. The State" (2012 SCMR 577) and "Ikramullah and others vs. The State" (2015 SCMR 1002).

8. We have further observed that the report of Punjab Forensic Science Agency (Ex.PE), tendered in evidence by the prosecution in this case does not give the details of the full protocols and the test applied at the time of analysis of narcotics allegedly recovered from the possession of the appellant.

Relevant/operative part of the report of the Punjab Forensic Science Agency tendered in evidence by the prosecution as (Ex.PE), reads as under:

Item No.        Description of Evidence

01.                    One sealed parcel containing approximately 1430-grams of suspected Charas.

Tests Performed on Received Item(s) of Evidence

1.       Top Load Balance was used for weighing.

2.       Chemical Spot Tests were used for Presumptive testing.

3.       Gas Chromatograph-Mass spectrometry was used for confirmation.

Results and Conclusion:-

Items #01    1404 grams of blackish brown resinous material in sealed parcel contains Charas.

Undisputedly, it is settled by now that any report failing to describe in it, the details of the full protocols and the tests applied will be inconclusive, unreliable suspicious and untrustworthy and will not meet the evidentiary presumption attached to a Report of the Government Analyst under Section 36(2) of the Act ibid. In the report Ex.PE, it is simply mentioned that certain tests were conducted and contraband material recovered in this case found to be Charas instead of mentioning the details of tests applied on the recovered material and their protocols as required by law. The evidentiary value of above said report has been evaluated by us in the light of Control of Narcotic Substances (Government Analysts) Rules, 2001. Rule 6 of the said Rules makes it imperative on an analyst to mention result of material analyzed with full protocols applied thereon along with other details in the report issued for test/Analysis by the Laboratory.

9. We also find that the report (Ex.PE), of the Punjab Forensic Science Agency is not in line with the principles enunciated by the august Supreme Court of Pakistan in the case of "The State through Resional Director ANF vs. Imam Bakhsh and others" (2018 SCMR 2039). The relevant portion of the said judgment is reproduced as under:

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 irxonclusive, 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)".

The above said view has been further fortified in the recent case law titled as "Khair-ul-Bashar vs. The State" (2019 SCMR 930). We have also requisitioned the attested copy of FIR in case of "Khair-ul-Basher" supra i.e., FIR No. 18, dated 15.01.2016, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at police station Westridge, District Rawalpindi, as well as, attested copy of the report of the Punjab Forensic Science Agency, Lahore, exhibited as Ex.PH, in the said case before the concerned trial Court. The report of the Punjab Forensic Science Agency, Lahore, produced in evidence as Ex.PH, in the case of "Khair-ul-Basher" supra is identical with the report of the Punjab Forensic Science Agency, Lahore, produced in the evidence of the present case before the learned trial Court as Ex.PE. As identical report in the case of "Khair-ul-Basher" supra has not been relied upon by the august Supreme Court of Pakistan, therefore, the

identical report of the Punjab Forensic Science Agency produced in evidence of this case by the prosecution as Ex.PE, is also not worthy of reliance.

10. Although learned Deputy Prosecutor General has argued that the appellant cannot be acquitted on the abovementioned sole ground of non-mentioning of protocols/full details of test applied, in the report of the Punjab Forensic Science Agency, Lahore but as mentioned earlier, the prosecution has also failed to prove the safe custody of parcel of case property. Even otherwise, the august Supreme Court of Pakistan in the case of "Khair-ul-Bashar" supra, acquitted the accused of the said case on the abovementioned sole ground of non-mentioning of protocols/full details of the tests applied in the report of the Punjab Forensic Science Agency, Lahore.

11. It is by now well settled that a single circumstance creating reasonable doubt would be sufficient to cast doubt about the veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right. Reliance in this regard is placed upon the cases of "Tariq Pervez vs. The State" (1995 SCMR 1345), "Akhtar All and others vs. The State" (2008 SCMR 06) and "Muhammad Zaman vs. The State and others" (2014 SCMR 749).

12. In the light of above discussion, the instant appeal (Crl. Appeal No. 185329 of 2018), is allowed, impugned judgment dated 26.02.2018, passed by the learned Additional Sessions Judge/Special Judge CNSA Court, Sialkot is hereby set aside and Muhammad Shahzad alias Billa (appellant) is acquitted of the charge by extending him the benefit of doubt. The appellant is in custody, he be released forthwith, if not required in any other case.

(A.A.K.)          Appeal allowed