PLJ 2022 Cr.C. 1524 (DB)
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--33 Maunds crushed poppy “Dodaas”--Govt. analysts report--Conviction and sentence--Challenge to--Recovery of charas--protocols--Daily diary--Contradictions in statements of PW’s--Acquittal of--Truck reached there, which was being driven by appellant where as co-accused (since PO) was sitting on front seat--Separated 250 grams from each tora and 250 grams from each bora and made total 37 parcels and sealed same with monogram of AM-- After alleged recovery substance so recovered was either kept in safe custody or that samples taken from recovered substance bad safely been transmitted to office of Chemical Examiner--Report of Chemical Examiner, is vague since it does not show nature of protocols observed that test applied--There are glaring contradictions in statements of PW’s--Police haulted truch at picket and apprehended appellant alongwith his co-accused--33 Maunds crushed poppy “Dodaas” which were lying in 35 tolas and 02 bags were recovered--The contradictory versions taken by prosecution witness, who was complainant as well as investigating officer of case is not minor in nature rather it touches root of case and badly damaged case of prosecution--Principles of natural justice demand that prosecution should lead evidence of such a characteristic, which leads to no other conclusion except guilt of accused without any hint of doubt and benefit of even a slightest doubt in prosecution case must be extended to accused--Set aside judgment and acquit appellant from charge against him. [Pp. 1526, 1529,
1530, 1533, 1535, 1536, 1537, 1540, 1541, 1542 & 1543] A, B,
D, E, F, G, H, I, J, K, L, M, N
2018 SCMR 2039; 2012 SCMR 577; 2015 SCMR 1002; 2020 SCMR 687; 2021 SCMR 363; 2019 SCMR 326; PLD 2004 SC 856;
PLD 2012 SC 380 ref.
Duty of Prosecution--
----It was prime duty of investigating officer to enter factum of handing over case property as well as sealed sample parcels and other recovered articles from possession of appellant in relevant register of police station. [P. 1529] C
Police Act, 1861--
----S. 44--Daily Diary/Register Roznamcha--Police Order, (22 of 2002), Art. 167--Section 22.48 and 22.49 of Police Rules, 1934--A register of Daily Diary shall be maintained at every police station in such form as shall, from time to time, be prescribed and to record therein names of all complainants, persons arrested--Section 22.48 and 22.49 of Police Rules, 1934 are pertaining to register No.2 (register roznamcha ) of police station. [Pp. 1530 & 1533] D & E
Control of Narcotic Substances (Government Analysts) Rules, 2001--
----Rr. 5 & 6--Protocols--Report of Chemical Examiner, is vague since it does not show nature of protocols observed that test applied, hence, said agency has violated rules 5 & 6 of Control of Narcotics Substance (Government Analysts Rules, 2001, Chemical Examiner is required to adopt complete procedure and then report is to be submitted after referring necessary protocols and mentioning tests applied. [P. 1537] H
2018 SCMR 2039 ref.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 36--Report of Government Analysts--When report is not prepared in prescribed manner then it may not qualify to be called a report in context of section 36 of Control of Narcotic Substances Act, 1997.
PLJ 2022 Cr.C. 1524 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Raja Shahid Mehmood Abbasi and Muhammad Tariq Nadeem, JJ.
SHAHZEB--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 72 of 2017, heard on 9.6.2022.
[P. 1537] I
2018 SCMR 2039; 2015 SCMR 1002; 2019 SCMR 930;
PLD 2020 SC 57; 2020 SCMR 196 ref.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Administration of justice--If a thing is required to be done in a particulars manner that should be done in that particular manner. [P. 1535] F
2011 YLR 522 ref.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Benefit of doubt--A single circumstance creating reasonable doubt would be sufficient to cast doubt about veracity of prosecution case. [P. 1543] M
1995 SCMR 1345; 2008 SCMR 06; 2014 SCMR 749 ref.
Mr. Talat Mehmood Zaidi, Advocate for Appellant
Mr. Sajjad Hussain Bhatti, DPG for State.
Date of hearing: 9.6.2022.
Judgment
Muhammad Tariq Nadeem, J.--This appeal is directed against the judgment dated 25-01-2017, passed by the learned Additional Sessions Judge, Rawalpindi, whereby at the conclusion of the trial, in case F.I.R No. 220 dated 13-05-2014, registered at Police Station R.A. Bazar, Rawalpindi, under Section 9(c) of the Control of Narcotic Substances Act, 1997, convicted and sentenced the appellant Shahzeb as under:
Under Section 9(c) of the Control of Narcotic Substances Act, 1997. Life imprisonment with fine of
Rs. 30,000/- and in default of payment thereof the appellant was to further undergo S.I. for 01 year and 04 months.
The benefit of Section 382-B, Cr.P.C. was also extended to the convict.
2. Precisely, the facts of the case as disclosed in FIR (Ex.PA/1) are that on 13-05-2014, at about 08:00 a.m. the contingents of police of Police Station R.A.Bazar, Rawalpindi, headed by Abid Hussain Shah, SI, complainant/I.O (PW.5) received spy information that a truck bearing Registration No. 4943 Peshawar-Z coming from the side of Dhoke Syedian, in which huge quantity of narcotics was being brought and if raid is conducted, contraband would be recovered. On this information, surveillance was made and at 08:00 a.m., said truck reached there, which was being driven by Shahzeb, appellant whereas co-accused Islam shah (since PO) was sitting on front seat of said truck. Upon search of the loading portion of the truck, 35 toras
(P1/1-35) and 2 Boras (P.2/1-2) of crushed dodas of post were recovered. On weighing each tora, it came to 32 kilograms whereas each bora weighed to 2 ½ maunds. Total weight of recovered post was 33 maunds. Thereafter, he (PW.5) prepared complaint (Ex.PA) and sent the same to the Police Station for lodging of formal FIR through Abdul Waheed, HC. He (PW.5) separated 250 grams from each tora and 250 grams from each bora and made total 37 parcels and sealed the same with the monogram of AM and took all the toras and boras into possession vide recovery memo. (Ex.PB), attested by the PWs. On personal search of Shahzeb, appellant Rs. 39500/-, one mobile phone and his ID card were recovered, which were taken into possession vide recovery memo. (Ex.PC) attested by Tahir Sultan 4255/HC and Turab Ahmad 6169/C PWs, whereas upon personal search of co-accused Islam Shah (since PO) cash of Rs. 1500/-, one mobile Samsung, and his ID card were recovered, which were taken into possession vide seizure memo. (Ex.PD) attested by the op-cit PWs. Hence, the above-mentioned FIR.
3. After formal investigation, report under Section 173 of The Code of Criminal Procedure, 1898 was prepared and submitted before the learned trial Court. The appellant along with his co-accused Islam Shah (since PO) were sent to face the trial after delivering the copies of the documents in terms of Section 265-C of The Criminal Procedure Code, 1898, the learned trial Court framed the charge against them, to which they pleaded not guilty and claimed trial. During trial, the accused Islam Shah absconded and ultimately, he was declared proclaimed offender vide order dated 16-05-2015.
The prosecution in order to advance its case, produced as many as five witnesses. Ghulam Shabbir, SI (PW.1) chalked out the formal FIR (Ex.PA/1). Abdul Ghaffar 4200/HC (PW.2) being moharrir malkhana kept the contraband as well as sample parcels in safe custody of malkhana and thereafter he handed over the sample parcels to Arif Hussain, 1479/C (PW.3), who deposited the same in the office of Chemical Examiner, Rawalpindi on 16-05-2014. Tahir Sultan 4255/HC (PW.4) was the recovery witness whereas Abid Hussain Shah, SI (PW.5) was the complainant as well as Investigating Officer of the case.
The prosecution gave up Turab Ahmad 6169/C and Abdul Waheed, HC, PWs being unnecessary and after tendering in evidence report of Chemical Examiner, Rawalpindi (Ex.PE), closed its evidence.
4. After closure of prosecution evidence, statement of the appellant was recorded under Section 342 of the Code of Criminal Procedure, 1898 wherein he negated the allegation leveled against him and professed his innocence. In reply to a question that Why this case is registered against you and why the PWs deposed against you, the appellant replied as under:-
“All the PWs are police officials and subordinates to IO. They can never take the chance to speak the truth before Court and lose their jobs in the result. Therefore, they supported the fake story introduced by the IO. The IO who is author of this story, dishonestly supported the same and tried to show the fake progress before the high ups. I never drove the truck of contraband, nor the same was recovered from my possession at the time of alleged recovery, I was working as helper/ conductor, at Pubby Adda Charsada. Accused Islam Shah (since P.O) who was known to me, called me from Pubby Adda by stating that his truck had gone out of order in Rawalpindi near Police Station R.A Bazar. As soon as I reached to help him, police arrested me there. The owner of the truck was a rich person who greased the palm of police, a huge amount was given to the IO, as result of which he was released and fake recovery was planted upon me. Neither I know how to drive a truck nor I have a driving license. As I was not in a position to bribe to police, therefore, I was made scapegoat in this case. I am innocent. All the said recovery of narcotics is fake.”
The appellant did not opt to appear as his own witness under
Section 340(2), Cr.P.C. in disproof of the allegation leveled against him, however, he produced Niaz Ali (DW.1) and Saif ul Malook (DW.2) in his defence evidence.
5. After hearing the arguments advanced by the learned counsel appearing on both sides, 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 and sentence of the appellant in the above stated terms.
6. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor General assiduously and perused the record minutely with their eminent assistance.
7. The detail of the prosecution case as set forth in FIR (Ex.PA/1) has already been mentioned in Para No. 2 of this judgment, therefore, there is no need to repeat the same.
8. After the careful scrutiny of the material available on record, we have come to the conclusion that the prosecution has failed to establish the safe custody of case property as well as the sample parcels to the police station and its safe transmission to the office of Chemical Examiner, Rawalpindi. The prosecution in order to prove its case against the appellant has examined as many as 05 PWs. We have noted that Abid Hussain Shah, SI, complainant/Investigating Officer (PW.5) during his cross-examination stated that on 13-05-2014, he reached back to Police Station at 02:20 p.m. and recorded Rapt No. 26 in this regard, which is in his handwriting. Relevant portion of his statement reads as under:-
“…. On 13.5.2014, I reached back to Police Station at 2.20 p.m. I recorded Rapt No. 26 in this regard which is in my handwriting. In Rapt No. 26 Ex.DA, I have not mentioned that I handed over the case property and truck to Moharrar Malkhana.
Same is the statement of Ghulam Shabbir, SI (PW.1), who during his cross examination stated as under:
“…. It is correct that Rapt No. 19, the contents of complaint are not reproduced and only receipt of complaint Ex.PA and lodging of FIR is mentioned. In the said rapt, neither the names of the accused are mentioned, nor the kind and quantity of the contraband material is mentioned therein----------------------------------------------------------------------------------------------------------- I remained on duty till 6.00 p.m. of 13.5.2014. In Rapt No. 26 of daily register of 13.5.2014 Abid Hussain Shah, I.O. of this case recorded his arrival in the P.S at 2.00 p.m. In aforesaid rapt No. 26, the delivery of case property of this case to moharrir malkhana is not mentioned. In the roznamcha pertaining to 13.05.2014 till 6.00 pm no rapt is recorded regarding delivery of case property of this case to moharar malkhana by Abid Hussain Shah I.O of this case…”
Moreover, Abdul Ghaffar 4200/HC, moharrir malkhana (PW.2) during his cross-examination described as infra:
“…. Register No. 19 remains in my custody being moharar malkhana. Entry No. 180 of Register No. 19 produced in the Court pertains to case property of this case, soon as the case property is received to moharar malkhana, the same is entered in the said register in the order in which case properties are recorded. Column No. 3 of the said register requires that entry of date and name of person of making delivery of articles be mentioned in the said column. It is correct that no date is mentioned in Column No. 3 against the relevant entry Bearing No. 180. Entry No. 179 is relating to the delivery of case property of FIR No. 217 dated 10.05.2014. Entry No. 178 pertains to FIR No. 218 dated 12.05.2014. Volunteered that the entries are made in the order in which the case properties are received. No dates are mentioned in Column No. 3 against the entries of 178 and 179. Entry No. 181 is pertaining to case FIR No. 219 and date of said FIR is also not mentioned. FIR No. 219/2014 is pertaining to the recovery of six bottles of liquor. No date is mentioned in column No. 3 against the said entry …”
We are mindful to hold that it was the prime duty of the Investigating Officer to enter the factum of handing over the case property as well as sealed sample parcels and other recovered articles from the possession of the appellant in the relevant register of police station i.e. Register No. 2 but the same was not done in the present case which proved fatal to the prosecution case. The first provision of law relating to daily diary is Section 44 of the Police Act, 1861 which is hereby reproduced as under for ready reference:-
Section 44 in The Police Act, 1861
44. Police-officers to keep diary.--It shall be the duty of every officer in charge of a police-station to keep a general diary in such form shall, from time to time, be prescribed by the Provincial Government and to record therein all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined.
Moreso, Section 167 of Police Order, 2002 is also very much relevant in the peculiar circumstances of the this case which is also hereby reproduced for facilitation:-
167. Maintenance of Daily Diary at a police station.– (1) A register of Daily Diary shall be maintained at every police station in such form as shall, from time to time, be prescribed and to record therein the names of all complainants, persons arrested, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined.
(2) The District and Sessions Judge of the district may call for and inspect such Diary.
According to Punjab Police Rules, 1934 in volume III and Chapter
No. 22 reads the following rules relevant to registers to be kept and maintained at police station.
RULE NO. 22.45: REGISTERS:
The following books shall be maintained at each police station in accordance with the rules hereinafter prescribed or referred to:-
(1) The first Information Report Register and, in certain stations the Register of Petty Offences.
(2) The Station Diary.
(3) Part I. Standing Order Book Part II. Circular and others orders.
(4) Register of Absconders and Deserters.
(5) Register of Correspondence.
(6) Miscellaneous Register.
(7) Cattle Pound Register.
(8) Criminal Tribes Register.
(9) The Village Crime Register.
(10) The Surveillance Register. (10-A) Bad Character Rolls despatched. (10-B) Bad Character Rolls received.
(11) Index to History Sheets and Personal Files.
(12) Register of information sheets despatched. (12-A) Copies of Information sheets received.
(13) Minute Book for Gazetted Officers.
(14) File Book of Inspection Reports.
(15) The Register of Births and Deaths.
(16) Register of Government Officials and Property.
(17) Register of Licenses.
(18) Receipts Books of Arms, Ammunition and military stores.
(19) The Store Room Register.
(20) Cash Accounts.
(21) File Book of Road Certificates.
(22) Printed Receipt Books.
(23) (A) Police Gazette. (B) Criminal Intelligence Gazette.
(24) Police Rules.
(25) Charge notes of officers in charge of police stations.
RULE NO. 22.46: GENERAL ORDERS REGARDING STATION REGISTERS:
(1) No alteration in the form or method of keeping the books and no addition to their number may be made without the sanction of the Inspector General being previously obtained.
(2) Every station register shall be paged in English. In the case of all registers except Parts I, II, III and IV of register No. (9) and registers 10(B), II and 12(A) this shall be done in the office of the Superintendent before issue to a police station. No page may be torn out of the station registers. Any correction which it may be necessary to make shall be made by drawing a line through the mistake so as to leave the words erased legible and by writing in the corrected words afterwards or in the margin. A piece of paper shall not be pasted over a mistake.
(3) All entries shall be neatly and clearly written and all corrections shall be attested by the signature of the officer making them. If words or lines are omitted form any entry, or if any entry is omitted altogether, no interpolation shall be made. The omission shall be supplied by a fresh entry in the regular course. English figures alone shall be used in all official papers and registers.
Note: Seals of a uniform pattern have been provided for each police station and for the offices of Superintendents and Deputy Inspectors-General and no deviations shall be allowed from the sanctioned design when seals are renewed from contingencies, or new seals are procured for additional stations.
RULE NO: 22.70:REGISTER NO. XIX:
This register shall be maintained in Form 22.70. With the exception of articles already included in register No. XVI every article placed in the store-room shall be entered in this register and the removal of any such article shall be noted in the appropriate column. The register may be destroyed three years after the date of the last entry.
Form register No. XIX in Punjab Police Rules,1934 is as follows:
FORM NO. 22.70
_______________ POLICE STATION, _______________________ DISTRICT Register No. XIX. -Store-Room Register
(Part I).
Column 1. Serial No.
2. No of first information report (if any), from whom taken (if taken from a person), and from what place.
3. Date of deposit and name of depositor.
4. Description of property.
5. Reference to report asking for order regarding disposal of property.
6. How disposed of and date.
7. Signature of recipient (including person by whom despatched.
8. Remarks.
(To be prepared on a quarter sheet of native paper)
Furthermore, sections 22.48 and 22.49 of Police Rules, 1934 are pertaining to register No. 2 (register roznamcha) of the police station. Both the said rules are also hereby mentioned as under for ready reference:-
Rule 22.48 of the Police Rules 1934,
Rule 22.48. Register No. II. -(1) The Daily Diary shall be maintained in accordance with Section 44 of the Police Act.
It shall be in Form 22.48(1) and shall be maintained by means of carbon copying process. There shall be two copies. One will remain in the police station register and the other shall be dispatched to a Gazetted Officer to be designated by the Superintendent of Police or to the Superintendent of Police himself every day at the hour fixed in this behalf. Shortly before the close of each quarter, books containing the proper number of pages for the ensuing three months shall be issued to police stations by the Superintendent. The Superintendent shall fix the hours at which station diaries shall be daily closed with reference to the hour of dispatch of the post or messenger. (2). The daily diary is intended to be complete record of all events which take place at the police station. It should, therefore, record not only the movements and activities of all police officers, but also visits of outsiders, whether official or non-official, coming or brought to the police station for any purpose whatsoever.
(3) All entries in the station diary shall be made by the officer in charge of the police station or by the station clerk. Literate officers making a report shall read the report re-corded and append their signatures. Every matter recorded in such diary shall be so recorded as soon as possible; each separate entry shall be numbered and the hour at which it was made shall commence each such entry. If the hour at which the information, or otherwise, containing such entries reaches the police station differs from the hour at which such entry was made, both hours shall be stated. As soon as entry has been made in the diary, a line shall be drawn across the page immediately below it.
(4) The opening entry each day shall give the name of each person in custody, the of-fence of which he is accused, and the date and hour of his arrest, the name of each accused person at large on bail or recognizance and the date of his release on such security. The last entry each day shall show (a) the balance of cash in hand as shown in the cash account, and (b) the balance of the cattle-pound account.
Rule 22.49 of the Police Rules 1934,
Rule 22.49. -Matters to be entered in Register No. II
The following matters shall, amongst others, be entered:
(a) The number and description of cattle seized in connection with cases or on suspicion with a reference to the case or report.
(b) The day, hour and purpose of visits to the police station of persons registered under the Criminal Tribes Act and of convicts released under the Remission Rules or under Section 56, Code of Criminal Procedure, together with the names of such persons.
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note. -The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
(d) Every police officer of or above the rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in the daily diary by the station clerk or his assistant showing the places he has visited and the duties performed by him during his absence from the police station.
(e) All admission to and releases from the cattle pound with the amounts of fines realised.
(f) The hour of receipt and despatch of all communications, property, cash, etc., giving reference to the number in the correspondence register. Note. The word ‘‘communications’’ shall be taken to include the reports required by Police Rule25.57(2)(ii) and Police Rule 27.1(1)(ii), to be sent to Panchayats.
(g) Information of the commission of non-cognizable offences (rule 24.3) including reports of enmities likely to lead to a breach of the peace (rule 23.32); visits of chaukidars to police stations [rule 21.3(4)] and demands by the police of one jurisdiction for assistance in extradition cases from the police of another juris-diction [rule 26.10(7)]
(h) All arrivals at, and dispatches from, the police station of persons in custody, and all admissions to, and removals from, the police station lock-ups, whether temporary or otherwise, the exact hour being given in every case.
(i) The hour and date of receipt and (separately) or service or execution of each process; and hour and date of return made to such process.
(j) The report regarding property in the store-room required by rules 22.15 and22.18(2).
(k) The report regarding excess of expenditure over the permanent advance as required by rule 22.71.
(l) The entrance of persons, by permission, into a tahsil treasury after office hours.
(m) The deposit in, or removal from, the post office safe in the Police Station of any article whatsoever the exact hour being given in every case. Note. -Every such entry shall contain detail of the article deposited or removed and shall be signed by the Sub or Branch Postmaster effecting the deposit or removal.
(n) A reference to every information relating to the commission of a cognizable of-fence, and action is taken under Section 157, Code of Criminal Procedure, the number and date of the first information report submitted.
In the eventuality of supra mentioned discussion, we are of the firm view that if a thing is required to be done in a particular manner that should be done in that particular manner and not otherwise. Reliance is placed upon the case titled as “Irfan Ali alias Ghulam Raza alias Ramzan vs. The State” (2011 YLR 522) wherein this Court held as under:
“… we are reminded of a maxim “A communi observantia non est recedendum”. Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, the same would not be lawful. Therefore, we see that on this score alone, the trial stands vitiated.
9. After perusal of evidence on record, we find that the prosecution has not established the safe custody of contraband to the police station as well as safe transmission of sample parcels to the office of chemical analyst. In the trial, it was essential for the prosecution to establish through cogent and convincing evidence that the alleged contraband was seized from the possession of the accused and was kept in safe custody in the Malkhana at police station and thereafter samples separated from each tora/bora of contraband were sent to the office of Chemical Examiner, Rawalpindi for analysis but there is no explanation for its failure to establish safe custody of recovered contraband. The samples so deposited in the office of Chemical Examiner, Rawalpindi on 16-05-2014 could not be tagged with samples taken from the seized substance from the possession of the appellant. There is, thus, no evidence to connect the report of Chemical Examiner, Rawalpindi (Ex.PF) with the substance that was seized from the possession of the appellant. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner, Rawalpindi without the same being tampered with or replaced while in transit. Reliance is placed upon the case titled as “The State through Regional Director ANF vs. Imam Bakhsh and others” (2018 SCMR 2039) wherein, at paragraph No. 9, the Apex Court of the country, has been pleased to observe as under:
“9 ..... we have noted above that in Crl. Appeals No. 523 to 525/2017 and No. 22/2018, safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized drug by the police and includes the separation of the representatives sample(s) of the seized drug and their dispatch to the narcotics Testing Laboratory. This chain of custody, is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. The Court has already held in Amjad Ali vs. The State (2012 SCMR 577) and Ikramullah vs. The State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the Report of Government Analyst becomes doubtful and unreliable.”
Similar view was taken by the Hon’ble Apex Court in the cases of “Amjad Ali vs. The State” (2012 SCMR 577), “Ikramullah vs. The State” (2015 SCMR 1002), “Haji Nawaz vs. The State” (2020 SCMR 687) and “Qaiser Khan vs. The State” (2021 SCMR 363).
10. There is another aspect of the case which cannot go unnoticed that report of Chemical Examiner, Rawalpindi (Ex.PE) is vague since it does not show the nature of protocols observed and test applied, hence, the said agency has violated the Rules 5 & 6 of The Control of Narcotic Substances (Government Analysts) Rules, 2001. A complete mechanism has been given in Rule 5 and 6 of The Control of Narcotic Substances (Government Analysts Rules, 2001), the Chemical Examiner is required to adopt complete procedure and then the report is to be submitted after referring necessary protocols and mentioning the tests applied and their results. In the instant case, required test was not applied on the basis of which Chemical Examiner has concluded that the samples sent to him for chemical examination contained crushed poppy heads. The Chemical Examiner has failed to provide the details that how much quantity, he has tested and when the report is not prepared in the prescribed manner then it may not qualify to be called a report in the context of Section 36 of The Control of Narcotic Substances Act, 1997 and such report of Chemical Examiner would loses its sanctity and that cannot be relied upon for the purposes of conviction. Guidance in this respect can be sought from the case law titled as “The State through Regional Director ANF versus Imam Bakhsh and others” (2018 SCMR 2039). Proceeding further, we could not take our eyes off the principles laid down in the case of “Khair-Ul-Bashar versus The State” (2019 SCMR 930) wherein the august Apex Court held as under:
“2. At the very outset we have noticed that the Report of the Punjab Forensic Agency dated 18.02.2016 is deficient in material particulars, i.e. while it mentions the names of the three tests performed, it does not provide results of these tests (except a consolidated result) and there is no mention of the test protocols applied in carrying out the said tests. In State v. Imam Bakhsh (2018 SCMR 2039) while discussing Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 (“Rules”) this Court held that the information required under the said Rule is mandatory. Hence, the Report of the Government Analyst, prepared in consequence of Rule 6, must provide for (i) tests and analysis of the alleged drug (ii) the results of the test(s) carried out and (iii) the test protocols applied to carry out these tests. These three elements form the fundamental and the core elements of a valid Report prepared by a Government Analyst. Non-compliance of Rule 6 and absence of any of these mandatory elements/requirements frustrates the purpose and object of the Act thereby diminishing the reliability and evidentiary value of the Report. Rule 6, inter alia, requires that the Government Analysts must specify the test protocols applied and, therefore, the Report must signify (by name) the protocols applied to carry out the test(s)/analysis, which would certify that full protocols have been followed while conducting the tests/analysis. In case the veracity of the Report is challenged by the accused or is being examined by the Court, compliance of full protocols can be called for from the Government Analyst and verified.
3…………………….
4…………………….
5. Section 36(1) of the Act also mandates that the Report must be in the prescribed form. This Court, in Ikramullah, while discussing the scope of Rule 6 of the Rules held that “…a complete mechanism is to be adopted by the Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to the necessary protocols and mentioning the tests applied and their results …Section 36 of the Control of Narcotic Substances Act, 1997 requires a Government Analyst to whom a sample of recovered substance is sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in “the prescribed form” and, thus if the report prepared by him is not prepared in the prescribed manner then it may not qualify to be called a report in the context of Section 36 of the Control of Narcotic Substances Act, 1997 so as to be treated as a “conclusive” proof of recovery of narcotic substance from an accused person.” A signed report in the prescribed form under Section 36(1) of the Act does not refer to FORM-II, as argued by the DPG, but to the form, structure, design and content of the Report provided in the Rules. This is also so because the Act was promulgated on 11.07.1997 while the Rules were framed and gazetted on 28.11.2001 under the title of Control of Narcotic Substances (Government Analysts) Rules, 2001, almost after four years. Therefore, FORM-II was not known to the legislature at the time of the promulgation of the Act, hence section 36(1) simply required that the structure and content (form) of the Report must be as provided in the Rules. FORM II, hereunder, is a manifestation of Rule 6 but does not have a stand alone existence.
FORM II (See Rule 6) CERTIFICATION OF THE TEST OR ANALYSIS BY FEDERAL NARCOTIC TESTING LABORATORY GOVERNMENT ANALYST 1. Certified that the sample bearing on _______ purporting to be sample of _______ received on _______ with memorandum No. ________ dated _______ from _______ has been test/analyzed and the result of each test/analysis is stated below: 2. That the condition of the seal on the packet on receipt was as follows; Satisfactory/Unsatisfactory/None. 3. In the opinion of the undersigned the sample is _______ as defined in the Section 2 of the CNS Act, 1997. 4. DETAILS OF THE RESULTS OF TESTS/ANALYSIS: Sample No. _________________________________________ Gross Wt: __________________ Net Wt: _________________ F.I.R. No. __________________ Dated __________________ Accused ____________________________________________ Physical Examination __________________________________ Conclusion ___________________________________ NOTE: In case of mixture the %age of each Alkaloids, Opium derivatives, Opiates, Cannabis, Drugs of abuse and the synthetic compounds are as follows: The sample identified as _________ and contain % Signature of Government Analyst Signature of any other authorized |
The general head of DETAILS OF THE RESULTS OF TESTS/ANALYSIS provides only for Physical Examination and Conclusion, and does not mention of tests or their results. This would hardly be of any significance unless the Report provides the information required under Rule 6 in order to establish the culpability of the accused. Hence, for the Report to serve the purposes of the Act and the Rules, it must contain (i) the tests and analysis of the alleged drug (ii) the result of each test(s) carried out and (iii) the test protocols applied (the name(s) of protocols applied) (the names(s) of protocols applied) to carry out these tests. It is important to underline that protocols are an intrinsic part of the tests and analysis. A test conducted without following the protocols does not pass for a test or meet the requirement of Rule 6.”
Reference can also be made to the cases reported as “Qaiser Javed vs. The State” (PLD 2020 SC 57) and “Muhammad Boota vs. The State” (2020 SCMR 196).
11. There is another aspect of the case is that there are glaring contradiction in the statements of the prosecution witnesses, which also make the case of the prosecution highly doubtful. As per prosecution story, on 13-05-2014 at 08:00 a.m. Abid Hussain Shah, SI, complainant (PW.5) along with other contingents of the police halted the truck bearing registration No. 4943/Peshawar-Z at picket near Bakra Mandi Chowk and apprehended Shahzeb, appellant along with his co-accused Islam Shah (since PO) and upon search of the truck 33 maunds crushed poppy “Dodaas”, which were lying in 35 toras and 02 boras (bags), were recovered. We have noticed that Abid Hussain Shah, SI, complainant/I.O (PW.5) had prepared complaint (Ex.PA) on 13.05.2014 at 09:30 a.m. whereas during his cross examination, he (PW.5) has stated that it took 5 to 6 hours in weighing and sampling the contraband. Relevant portion of his cross examination is mentioned below:
“... I weighed the samples as well as remaining substance of each tora by one by one. The substance of each tora was not taken out, rather the tora itself was weighed. The total process of recovery i.e. its weight, sampling etc. took 5 to 6 hours …..”
In the light of supra mentioned reproduced portion of cross examination, it reveals that if Abid Hussain Shah, SI, complainant/I.O (PW.5) in weighing and sampling process of contraband took time 5 to 6 hours then, supra mentioned proceedings completed between 1:00 p.m. to 2:00 p.m. then how it is possible that without weighing and sampling the supra recovered contraband detail of same can be mentioned prior to the time in the complaint (Ex.PA) at 09:30 a.m. In this way, it is evident from the prosecution evidence that all the proceedings of recovery as well as registration of FIR were completed within a period of 1 hour and 55 minutes. The above contradictory versions taken by the prosecution witness, who was complainant as well as Investigating Officer of the case is not minor in nature rather it touches the root of the case and badly damaged the case of the prosecution and also sufficient to create dent in the prosecution case. When the very foundation of the prosecution case is not strong the subsequent proceeding thereupon will fell down like house of card. Keeping in view the peculiar circumstances of the case, we are of the considered view that the depositions of the aforementioned star witnesses of prosecution regarding the date and time of apprehending the appellant, presence of witnesses at the spot, preparation of recovery memos and lodging of FIR, make the case highly doubtful. When confronted, the learned Deputy Prosecutor General present in the Court failed to justify the stance taken by the prosecution witnesses.
12. We have noticed that although examination-in-chief of Abdul Waheed 4823/HC was recorded as PW6 on 22-08-2016 but the cross examination upon him was reserved for 27-08-2016 as lawyers were observing strike. Subsequently, the prosecution gave up above-mentioned PW being unnecessary. According to the prosecution case, Abdul Waheed 4823/HC was accompanied with Abid Hussain Shah, SI, complainant/I.O (PW.5) along with other contingents of the police station and in his presence alleged contraband was recovered from truck bearing registration No. 4943-Peshawar-Z driven by Shahzeb, appellant. After preparing complaint (Ex.PA), Abid Hussain Shah, SI, complainant/I.O (PW.5) sent him along with complaint (Ex.PA) for registration of formal FIR (Ex.PA/1) at police station. In such like situation the examining of the witness, who carried the complaint (Ex.PA) to the police station for registration of crime report was necessary but said Abdul Waheed, 4823/HC was given up by the prosecution without any cogent reasoning. therefore, adverse inference in the light of Article 129 (g) of the Qanun-e-Shahadat Order, 1984 can be drawn, which cast serious doubt upon the story of the prosecution. Reliance is placed upon the case law titled as “Minhaj vs. The State” (2019 SCMR 326).
14. We have further noted that according to the statement of Tahir Sultan 4255/HC (PW.4), the Sub-Inspector had weighed the articles by hanging the weighing instrument at the nearby shop. Relevant portion of his cross-examination are described infra:
“…. The SI had the hanging weighing instrument (Kanta). He had brought the said weighing instrument with him from Police Station. The said weighing instrument was hanged at the nearby shop for weighing the recovered substance. I do not remember what was being sealed in the said shop --------------------------------------------------------------------------------------------------
The shop was open. Shopkeeper was also present. In my presence, I.O did not ask the said shopkeeper to become witness ….”
Contrary to above Abid Hussain Shah, SI, complainant/Investigating Officer (PW.5) has stated otherwise in his cross examination. Relevant lines of his cross examination in this regard are also mentioned
below:--
“… I took the weighing instrument (kanta) with me. For weighing the substance, I hanged the Kanta with the wall of an under construction building and an iron was also fixed in the wall per chance and I hanged the weighing instrument with the said iron rod ...”
In this way, there is a direct conflict between the statements of
supra-mentioned PWs with respect to the place of weighing the contraband at the spot, which makes the prosecution story further doubtful.
15. We are mindful of the fact that “C.N.S.A, 1997” was promulgated with a specific purpose and object to eradicate the menace of drug trafficking and as such it provides stringent punishments for an offender charged under the offence relating to narcotics. Since an accused charged under the offence of “C.N.S.A, 1997” has to face severe punishments in case charge is proved against him, so principles of natural justice demand that prosecution should lead evidence of such a characteristic, which leads to no other conclusion except the guilt of the accused without any hint of doubt and benefit of even a slightest doubt in the prosecution case must be extended to the accused. Reliance is placed upon the case titled “Muhammad Hashim vs. The State” (PLD 2004 SC 856). Similarly, in the case of “Ameer Zaib vs. The State” (PLD 2012 SC 380) the Hon'ble Supreme Court of Pakistan was pleased to observe that the harder the sentence, stricter the standard of proof.
16. The afore-mentioned witnesses produced by the prosecution cannot be said to be trustworthy and confidence inspiring
witnesses as their deposition is not worthy of reliance and such evidence cannot be taken into consideration for the purpose of conviction. Moreover, 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 Ali and others vs. The State” (2008 SCMR 06) and “Muhammad Zaman vs. The State and others” (2014 SCMR 749).
17. For what has been discussed above, we are of the view that the prosecution evidence is highly deficient and the conviction recorded by the learned trial Court, in the circumstances, is not sustainable. We, thus, while allowing the appeal, set aside the judgment dated 25-01-2017 and acquit the Shahzeb, appellant from the charge against him. He is in jail; he be released forthwith if not required in any other case. The case property i.e. Poost shall be destroyed in accordance with law, as observed by the learned trial Court, in the impugned judgment.
(K.Q.B.) Appeal allowed
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