PLJ 2022 Cr.C. (Note) 15
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Pakistan Penal Code, (XLV of 1860), Ss. 353, 186, 420, 468 & 471--Arms Ordinance, 1965, S. 13--Conviction and sentence--Challenge to--Allegation of--Recovery of charas--Prosecution has not established safe custody of recovered substance--There are contradictions in case of prosecution as to deposit of samples and case property in "Malkhana"--It is prosecution case that S.I the complainant, got recovered from left Nafa of shalwar of accused (Appellant No. 1) one packet of charas one packet of charas from Nafa of shalwar of accused (Appellant No. 2); 118 packets of charas and ten packets of opium from beneath seats as well as dickey of vehicle, total 120 kilograms of charas and 10 kilograms of opium was recovered from possession of appellants--Report of Chemical Examiner containing., his opinion must, therefore, disclose procedure on which his opinion is based and reason in support of opinion--Opinion rendered by Chemical Examiner is no evidence unless same is supported by reasons--Chemical Examiner report except an opinion that samples contain "Charas" and "Opium" there is no other data as prescribed in law--Patent infirmity has been noticed in report which is found to be fatal to prosecution case--In such eventuality it is not possible to uphold and sustain judgment of conviction and sentence against the appellants--Accordingly appellants deserve to be given benefit of doubt and findings in this regard are required to be set aside and same are set aside.
[Para 9, 12 & 13] A, C & D
2015 SCMR 1002.
Burden of Proof--
----In a criminal case trial, initial burden of proof is always on prosecution and said burden is quite heavy--Prosecution has to prove its case beyond reasonable doubt. [Para 10] B
M/s. Raza Abbas Alvi and Malik Muhammad Aslam, Advocates for Appellants.
Mr. Muhammad Waqas Anwar, Deputy Prosecutor General for State.
Date of hearing: 25.3.2019.
PLJ 2022 Cr.C. (Note) 15
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ.
MANIAR KHAN alias MALIAR KHAN and another--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 186-J of 2015, heard on 25.3.2019.
Judgment
Miss Aalia Neelum, J.--The appellants-Maniar Khan alias Maliar Khan son of Suleman Shah, caste Pathan, resident of Mashk Khail Gogi Baqra Abad Jamrood, Triable Area and Sami Ullah alias Sana Ullah son of Aman Ullah, caste Pathan, resident of Khonti Jamrood, Tribal Area, were involved in case F.I.R No. 1440 of 2008, dated 24.12.2008, offence under Sections 9(C) of CNSA, 1997, 353, 186, 420, 468, 471 of PPC and 13 of the Arms Ordinance, 1965, registered at Police Station Sattokatla District Lahore and was tried by the learned Addl. Sessions Judge, District Lahore. The learned trial Court seized with the matter in terms of judgment dated 31.03.2015, convicted the appellants as under:
(1) Convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced them to undergo rigorous imprisonment for life each with the direction to pay Rs. 1,00,000/- as fine each and in case of default in payment thereof, each would undergo simple imprisonment for 01-year.
(2) Convicted under Section 353, PPC and sentenced them to undergo rigorous imprisonment for 02-years each with the direction to pay Rs. 2000/- as fine each and in case of default in payment thereof, each would undergo simple imprisonment for 06-months.
(3) Convicted under Section 468, PPC and sentenced them to undergo rigorous imprisonment for 06-years each with the direction to pay Rs. 5000/- as fine each and in case of default in payment thereof, each would undergo simple imprisonment for 06-months.
(4) Convicted under Section 471, PPC and sentenced them to undergo rigorous imprisonment for 06-years each with the direction to pay Rs. 5000/- as fine each and in case of default in payment thereof, each would undergo simple imprisonment for 06-months.
(5) Convicted under Section 13 of the Arms Ordinance, 1965 and sentenced them to undergo rigorous imprisonment for 03-years each with the direction to pay Rs. 2000/- as fine each and in case of default in payment thereof, each would undergo simple imprisonment for 06-months.
All the sentences awarded to the appellants would run concurrently. The benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellants. Feeling aggrieved, the appellants have assailed their conviction through filing the instant appeal.
2. The prosecution story as alleged in the F.I.R (Ex.PB) lodged on the complaint (Ex.PA) of Iftikhar Ahmad A.S.I (PW-6) is that on 24.12.2008, he (PW-6) along with Muhammad Imran 7501/H.C, Fazal-ur-Rehman 13951/H.C. armed with rifle SMG, Asif Iqbal 7988/H.C, Imtiaz Ahmad 6315/C (PW-7) armed with semi automatic rifle, Azmat Ullah 9771/C (given up PW) armed with semi automatic rifle, Ehsan Elahi 1876/C armed with semi automatic rifle, Nasir Ghafoor 15320/C and Ejaz Ahmad 4050/C while boarding on official vehicle bearing registration No. 5464-LRO driven by Shahadat Ali 3959/C was present near Kachi Kothi, Nawab Town Raiwind Road, Lahore in connection with a campaign of checking of stolen vehicles. Meanwhile, a black colour Honda City Car bearing registration No. LEA-480 came from the side of Thokar Niaz Baig, which was signaled to stop but the persons sitting in the car, instead of stopping it, fled away by accelerating its speed. On suspicion, the car was immediately chased by the police party and the person sitting on the front seat, started firing upon the police party with his weapon, in result of which, the police party while exercising its right of private defence, also responded with cross firing, due to which, a fire hit upon the left ankle of the said person sitting on the front seat, after crossing through the gate of the car, due to which, the accused stopped the car. Both the accused were overpowered by the police party and on their personal search, pistol 30-bore (P-l) alongwith three live bullets (P-2 to P-4) were recovered from the person sitting on the front seat. On his further search, a packet of Charas (P-l 5) was recovered from left side of his "Naifa" of Shalwar. On interrogation, he disclosed his name as Maniar Khan (the Appellant No. 1). The driver of the said vehicle was also overpowered and on his search, one packet of Charas (P-l6) was recovered from the "Naifa" of his Shalwar. On interrogation, the driver disclosed his name as Sami Ullah Khan (the Appellant No. 2). On search of Car, 10-packets of opium (P-135 to P-144) weighing 01-kilogram each and 118-packets of Charas (P-l7 to P-l34) weighing 01-kilogram each were recovered from beneath the seat as well as dickey of the car. In this way, 120-kilogram charas and 10-kilogram opium was recovered. Out of the recovered narcotic substance, 10-grams of Charas and Opium from each packet were separated for chemical analysis. The complainant (PW-6) took into possession the covered narcotic through recovery memo. (Ex.PD). On further checking, the said car was found stolen as per case FIR No. 656/2007, under Section 381-A, PPC, Police Station Sabzazar, Lahore. The complainant (PW-6) drafted complaint (Ex.PA) and sent the same through Asif Iqbal 7988/H.C. to the Police Station for registration of the formal FIR (Ex.PB).
3. Thereafter, the investigation was entrusted to Mushtaq Ahmad (Retired S.I PW-8), who being investigating officer of the case visited the place of occurrence and prepared the site-plan (Ex.PF) of the place of recovery, recorded the statements of the prosecution witnesses under Section 161, Cr.P.C. and also sent the appellants to judicial lock up by the order of the learned Area Magistrate. Having found the accused guilty, the Investigating Officer (PW-8) prepared report under Section 173, Cr.P.C., while placing their (the appellants) name in Column No. 3 of the challan and sent the same to the Court of competent jurisdiction.
4. The learned trial Court formally charge sheeted the appellants on 20.01.2010, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as eight witnesses. Asif Hameed S.I (PW-4) chalked out formal FIR (Ex.PB). Iftikhar Ahmad S.I. (PW-6) is the complainant of the case, whereas Muhammad Imtiaz T/A.S.I (PW-7) is the witness of recovery and Mushtaq Ahmad (Retired S.I. PW-8) is the investigating officer of the case. The statements of remaining prosecution witnesses are formal in nature.
5. On 30.03.2015, the learned ADPP gave up PWs-Azmat Ullah 9771/C and Muhammad Khalid 7208/C as being un-necessary and after tendering the report of Chemical Examiner, Lahore (Ex.PH) closed the prosecution evidence.
6. The appellants were also examined under Section 342, Cr.P.C., wherein they did not opt to appear as their own witness in terms of Section 340(2), Cr.P.C., whereas tendered Ex.DA in their defence evidence and while replying to a particular question that why the PWs had deposed against them, the Appellant No. 1-Maniar Khan made the following deposition:
"Nothing was recovered from my possession. I had been working a daily wager in Shah Alam Market, Rang Mehal, Lahore. Sumi was my co-villager. He had a dispute with Shabbir Ahmad complainant of case FIR No. 656/2007, u/S. 381-A P.S Sabzazar, Lahore. The complainant Shabbir Ahmad called Sami Ullah in Lahore and with the joined hands of the Iftikhar Ahmad S.I. and confined him in their illegal custody. Prior to this occurrence, Sami Ullah called me for his help in police station. When I reached at P.S. Gulberg and I came to know the whole situation. I demand the liberty of Sami Ullah from Iftikhar Ahmad S.I. due to this reason we exchanged hot words with each other. The complainant of this case namely Iftikhar Ahmad became fed up and he fired upon me which hit my ankle. He sent me hospital through their subordinates prior to two hours of the time mentioned in complaint from where, they brought me back to P.S at about 11:00 p.m. Next day, I came to know that they registered this case against both of us. My this version is also proved through the decision of the Court of Rana Rashid Ali Khan, learned Judicial Magistrate, who pleased to acquit us in case FIR No. 656/2007 u/S. 381, PPC, P.S. Sabzazar, Lahore due to non-appearance of any P.Ws or complainant against us in the Court regarding to the stolen of vehicle mentioned in FIR. All P.Ws being subordinate of the complainant of this FIR deposed against me. I am innocent."
Whereas, the Appellant No. 2-Sami Ullah alias Sana Ullah made the following deposition:
"Nothing was recovered from my possession. I had a dispute with Shabbir Ahmad. He called me in Lahore and with joined hand of the complainant of the case in hand where Maniar came for my help but the complainant quarrel with him and the complainant fired upon him and hit him in his ankle with fire-arm. The complainant sent him to hospital prior to the time of this occurrence mentioned in the FIR. I was confined in P.S. Gulberg, Lahore. The complainant just to hide this fact, involved both of us in the presence case. My this version is also proved through the decision of the Court of Rana Rashid Ali Khan, learned Judicial Magistrate, who pleased to acquit us in case FIR No. 656/2007, u/S. 381, PPC, P.S. Sabzazar, Lahore due to non-appearance of any P.Ws or complainant against us in the Court regarding to the stolen of vehicle mentioned in FIR. All P.Ws being subordinate of the complainant of this FIR deposed against me. I am innocent."
7. After hearing the arguments advanced by the learned counsel for the appellant as well as the learned ADPP, the learned trial Court while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellants in the above stated terms.
8. We have heard the arguments advanced by the learned counsel for the appellants as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
9. After a careful scrutiny of the material available on the record, we come to the conclusion that the prosecution has not established safe custody of recovered substance. There are contradictions in the case of the prosecution as to deposit of the samples and case property in the "Malkhana". It is the prosecution case that on 24-12-2008, Iftikhar Ahmad, S.I (PW-6)-the complainant, got recovered from the left Nafa of shalwar of accused Maniar Khan (Appellant No. 1) one packet of charas (P-15); one packet of charas
(P-16) from the Nafa of the shalwar of accused Sami Ullah (Appellant No. 2); 118 packets of charas (P-17 to P-134) and ten packets of opium
(P-135 to 144) from beneath the seats as well as dickey of the vehicle, total 120 kilograms of charas and 10 kilograms of opium was recovered from the possession of the appellants. In this regard, most important testimony was of Iftikhar Ahmad, S.I. (PW-6)-the complainant who on 24.12.2008 recovered the contraband and apprehended Maniar Khan and Sami Ullah accused persons/appellants. There is no evidence on record to show that Iftikhar Ahmad, S.I. (PW-6)-the complainant had handed over, case property and parcels of samples sealed by him
(PW-6) to Mushtaq Ahmad (Retired S.I) (PW-8)-the investigating officer. Iftikhar Ahmad S.I. (PW-6) the complainant deposed during cross-examination that:
"We went away 2/4 minutes after handing over the whole case property as well as accused and relevant documents to the I.O." He (PW-6) further deposed that, "It is correct that I handed over parcels of alleged Charas and Opium to Moharrar rather than I.O. I do not remember the time when I handed over the said parcels to the Moharrer."
Mushtaq Ahmad (Retired S.I) (PW-8)-the investigating officer deposed during cross-examination that:
"It is correct that case property as well as parcels were not handed over to me by the complainant at the spot. I did not know about the case property or the samples."
Whereas, Muhammad Ibrahim, 13896/HC (PW-4)-moharrar deposed during Court statement that:
"On 24.12.2008,1 was posted at police station Sattu Katla. Lahore. On the same day, Iftikhar Ahmad ASI handed over to me two sealed parcels which I kept in mal khana for safe custody. On the same day, I handed over those parcels to Imtiaz Ahmad 6315/C for onward transmissions to the office of Chemical Examiner, Lahore for chemical analysis."
Whereas Muhammad Ibrahim, 13896/HC (PW-4)-moharrar had not deposed, that he received 120 packets of samples of charas and ten parcels of samples of opium along with 120 packets of charas (P-15 to P-134) and ten packets of opium (P-135 to 144), total weighing 120 kilograms of charas and 10 kilograms of opium and deposited the seized articles along with alleged contraband charas and opium in the malkhana. In the trial, it was necessary for the prosecution to establish by cogent evidence that the alleged parcels of samples and remaining case property i.e. charas weighing 120 kilograms and opium ten kilograms seized from the possession of the accused were kept in safe custody. There is no explanation for this failure to establish safe custody of recovered charas weighing 120 kilograms and opium 10 kilograms as well as parcels of samples. From time of the seizure on 24.12.2008, till deposit of the parcels of samples in the office of chemical examiner, Lahore on 30.12.2008, it is not established that the samples and the recovered substance were kept in the "Malkhana". The prosecution failed to establish by cogent evidence that the alleged parcels of samples as well as charas (P-15 to P-134) and ten packets of opium (P-135 to 144) seized from the possession of the accused persons were kept in safe custody. Mere oral evidence of the prosecution witnesses i.e. Iftikhar Ahmad, S.I. (PW-6)-the complainant and Muhammad Imtaiz, T/ASI (PW-7) as to the recovery of charas weighing 120 kilograms and opium 10 kilograms does not discharge the heavy burden of responsibility, which lies on the prosecution. Practically the prosecution took upon themselves the risk of losing the case. In the considered opinion of this Court, the aforesaid inconsistencies and contradictions considered cumulatively do lead to an irresistible inference that the prosecution has not been able to prove safe custody of the recovered substance through material and cogent evidence.
10. In a criminal case trial, initial burden of proof is always on the prosecution and the said burden is quite heavy. The prosecution has to prove its case beyond reasonable doubt. There are contradictions in the case of the prosecution as to date of dispatch of the parcel of sample and deposit of the parcel of sample in the Office of Chemical Examiner for the Punjab, Lahore. In this regard, most important testimony was of Muhammad Ibrahim, 13896/HC (PW-4)-moharrar. Muhammad Ibrahim, 13896/HC (PW-4)-moharrar deposed during his Court statement that:
"On 24.12.2008,1 was posted at police station Sattu Katla, Lahore. On the same day, Iftikhar Ahmad ASI handed over to me two sealed parcels which I kept in mal khana for safe custody. On the same day, I handed over those parcels to Imtiaz Ahmad 6315/C for onward transmissions to the office of Chemical Examiner, Lahore for chemical analysis."
Whereas, Muhammad Imtaiz, T/ASI (PW-7), deposed during examination-in-chief that:
"On 30.12.2008, Ibrahim Moharrer of P.S. Sattokatla handed over to me 120 sealed parcels said to contain Charas and 10 sealed parcels said to contain opium for deposit the same in the office of Chemical Examiner. On the same day, I deposited the said parcels in the office of Chemical Examiner intact."
The prosecution has to establish by cogent evidence that the alleged parcels of samples drawn from 120 packets of charas (P-15 to P-134) and ten packets of opium (P-135 to 144) recovered from the custody of the appellants remained in safe custody. There is also no explanation for this failure to establish link of samples with the parcels of charas (P-15 to P-134) and ten packets of opium (P-135 to 144) received in the office of office of chemical examiner, Lahore on 30.12.2008 and two parcels handed over by Muhammad Ibrahim, 13896/HC (PW-4)-moharrar to Muhammad Imtaiz, T/ASI (PW-7) on 24.12.2008. The chemical examiner Report (Ex.PH) reflects that parcels of samples of charas and opium were deposited in the office of chemical examiner, Lahore on 30.12.2008, whereas, Muhammad Ibrahim, 13896/HC (PW-4)-moharrar handed over parcels of samples of charas and opium to Muhammad Imtaiz, T/ASI (PW-7) on 24.12.2008. The parcels of samples of charas and opium deposited in the Office of chemical examiner, Lahore on 30.12.2008 could not be related with the parqels of samples of charas and opium drawn from the seized substance from possession of the appellants. There is, thus, no evidence to connect the chemical examiner Report (Ex.PH) with the substance that was seized from the possession of the appellants.
11. There is another aspect of the case of the glaring contradiction in the statements of the prosecution witnesses, also making the case of the prosecution highly doubtful. Muhammad Ibrahim, 13896/HC (PW-4) moharrar deposed during cross- examination that:
"The sealed parcels were handed over to me at 1.30/2:00 P.M and remained with me about 3/4 minutes. At the same time I issued a rote certificate and handed over these parcels to Imtiaz 6315-C.
Whereas on perusal of Chemical Examiner Report (Ex.PH), it reveals that Muhammad Imtaiz, T/ASI (PW-7) submitted 120 samples parcels of charas and ten samples parcels of opium in the office of chemical examiner, Lahore on 30.12.2008 and have been forwarded by Excise and Taxation Office, Lahore on 30.12.2008. There is, thus, no evidence to connect the Chemical Examiner Report (Ex.PH) with the substance that was seized from the possession of the appellants as Muhammad Ibrahim, 13896/HC (PW-4)-moharrar specifically deposed that he had issued a road certificate and handed over parcels of samples to Muhammad Imtaiz, T/ASI (PW-7) on 24.12.2008. The prosecution has not been able to prove under what circumstances these simples were send to the Excise and Taxation Office, Lahore and no evidence is available for safe custody while the samples remained in the possession of Excise and Taxation Office, Lahore and when and by whom said parcels of samples were taken out from the Malkhana on 24.12.2008. Whether the samples submitted with the office of Chemical Examiner, Punjab, Lahore by Muhammad Imtaiz, T/ASI (PW-7) forwarded by Excise and Taxation Officer, Lahore on 30.12.2008 relates to the alleged contraband seized from the possession of the appellants has not been proved. This contradiction went to the root of the case. The said contradiction in the deposition of the aforementioned police officials cannot be stated to be minor and irrelevant in the absence of the positive and material evidence. In other words, there is strong doubt as to whether the sample analyzed by the chemical examiner was taken out of same material that was allegedly recovered from the accused during the search. There is, thus, no evidence to connect the chemical examiner report (Ex.PH) with the substance that was seized from the possession of the appellant.
12. On the perusal of the above report (Ex.PH) the same cannot be said to be full and complete, disclosing the full protocols of the test applied, except the bare opinion that the packets contain Charas and opium. On perusal of the report (Ex.PH) it reveals that net and gross weight of the parcels was not mentioned therein. Rule 6 of the Control of Narcotics Substances (Government Analysts) Rules, 2001 provides for report of result of test or analysis. There is nothing on the basis of which we can assess the truthfulness of the report (Ex.PH). Reliance is placed on the case of Hon'ble Supreme Court of Pakistan reported as "Ikram Ullah and others v. The State" (2015 SCMR 1002). The report of the Chemical Examiner containing., his opinion must, therefore, disclose the procedure on which his opinion is based and the reason in support of the opinion. The opinion rendered by the Chemical Examiner is no evidence unless the same is supported by the reasons. The Chemical Examiner report (Ex.PH) except an opinion that samples contain "Charas" and "Opium" there is no other data as prescribed in law. Patent infirmity has been noticed in the report (Ex.PH) which is found to be fatal to the prosecution case. In such eventuality it is not possible to uphold and sustain the judgment of conviction and sentence against the appellants. Accordingly the appellants deserve to be given benefit of doubt and findings in this regard are required to be set aside and the same are set aside.
13. The law does not envisage trial of offences under Section 353, 186, 420, 468, 471 of PPC and 13 of the Arms Ordinance, 1965 by the Special Court established under Section 46 of the Control of Narcotic Substance Act, 1997. The accused can be tried by the ordinary jurisdiction Court. Thus, the trial by the Additional Sessions Court against the appellants under Sections 353, 186, 420, 468, 471 of, PPC and 13 of the Arms Ordinance, 1965, stands vitiated because of the inherent lack of jurisdiction to conduct trial not falling under Section 45 of the Control of Narcotic Substance Act, 1997.
14. So after a due consideration of the facts and circumstances of the case and the points discussed above we come to the conclusion that the prosecution has not been able to prove the charge leveled against the appellants. Since there was inherent illegality in the matter the. Conviction cannot be upheld and findings in this regard are required to be set aside and the same are set aside and as a consequence whereof, the appeal is accepted and appellants-Manir Khan alias Maliar Khan and Sami Ullah alias Sana Ullah are ordered to be acquitted of the charge in case FIR No. 1440 of 2008, dated 24.12.2008, offence under Sections 9(C) of CNSA, 1997, 353, 186, 420, 468, 471 of PPC and 13 of the Arms Ordinance, 1965, registered at Police Station Sattokatla District Lahore and they (the appellants) are directed to be released from the jail forthwith, if not required in any other criminal case.
(A.A.K.) Appeal accepted
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