PLJ 2023 Cr.C. (Note) 20
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Allegation of--Recovery of charas--It is straightaway observed that in narcotic cases it is prime duty of prosecution to establish, by producing on record a confirmatory report issued by Chemical Examiner, compiled by following requisite tests in line with Rule 6 of control of Narcotic Substances (Government Analysts) Rules, 2001, that alleged recovered material was in fact contraband--In instant case reports issued by Federal Government Analyst, National Institute of Health, Islamabad has not been prepared by following Rule 6--Held: It is well settled principle of law that a single instance causing a reasonable doubt in mind of Court entitles accused to benefit of doubt not as a matter of grace but as a matter of right.
[Para 3 & 4] A & B
2018 SCMR 2039, PLD 2020 SC 57, 2009 SCMR 230 and
2014 SCMR 749.
Mr. Asjad Pervaiz Abbasi, Advocate for Appellant No. 1.
Mr. Tayyab Shakoor Rana, Advocate for Appellant No. 2.
Mr. Muhammad Irfan Malik, Special Prosecutor for A.N.F for State.
Date of hearing: 19.4.2021.
PLJ 2023 Cr.C. (Note) 20
[Lahore High Court, Lahore]
Present: Muhammad Waheed Khan and Anwaarul Haq Pannun, JJ.
MUHAMMAD SALEEM and another--Appellants
versus
STATE--Respondent
Crl. A. No. 241589-J of 2018, heard on 19.4.2021.
Judgment
Anwaarul Haq Pannun, J.--The appellants, Muhammad Saleem and Shakil Ahmad, were tried in case F.I.R No. 22/2015 dated 05.04.2015, offence under Sections 9(c) and 15 of the Control of Narcotic Substances Act, 1997, registered at Police Station A.N.F, Lahore, as allegedly recovery of charas weighing 14.400 kilograms and 7.200 kilograms respectively was effected, at the time of their arrest from their possession by the police party. After framing of formal charge against the accused/appellants, to which they pleaded not guilty and claimed trial, the prosecution examined four witnesses to prove charge against the appellants. Muhammad Ehsan, S.I., PW-1 chalked out the formal FIR (Exh.PA) on the basis of complaint. He was also handed over the sealed parcels said to contain charas for safe custody in Malkhana and onward transmission to the office of Chemical Examiner. Asif Farooq, constable, PW-2 is the witness of recovery memo. (Ex.PB). Haroon Tariq, A.D, PW-3 is complainant/I.O. of this case and PW-4 Muhammad Imran, constable, deposited sealed parcels said to contain charas in the office of Chemical Examiner. Statements of the accused under Section 342, Cr.P.C. were recorded, wherein they while professing innocence and alleging their false involvement in this case, had refuted all the allegations levelled against them. The appellants did not opt to appear as their own witness under Section 340(2), Cr.P.C., however, the appellant Shakil Ahmad in his defence had produced Muhammad Nadeem (DW-1) and Mst. Iqbal Begum (DW-2). On conclusion of trial, the learned trial Court, vide its judgment dated 18.09.2018, has convicted both the appellants under Section 9(c) of C.N.S.A, 1997 and awarded imprisonment for life to accused Muhammad Saleem with a fine of Rs. 100,000/- and in default thereof to further undergo six months S.I., whereas the accused Shakil Ahmad was sentenced to 11 years R.I. with a fine of Rs. 60,000/- and in default thereof to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was, however, extended to both the convicts/appellants.
2. Arguments heard. Record perused.
3. Leaving aside the verbosity revolving around the demeanor of statements of the PWs, it is straightaway observed that in narcotic cases it is the prime duty of the prosecution to establish, by producing on record a confirmatory report issued by the Chemical Examiner, compiled by following the requisite tests in line with Rule 6 of the control of Narcotic Substances (Government Analysts) Rules, 2001, that the alleged recovered material was in fact the contraband. We have noticed that in the instant case the reports (Ex.PH/1-3) issued by the Federal Government Analyst, National Institute of Health, Islamabad has not been prepared by following Rule 6 ibid. The Hon’ble Supreme Court of Pakistan in the dictum reported as The State through Regional Director ANF vs. Imam Bakhsh and others (2018 SCMR 2039) has held as under:
“Non-compliance of Rule 6 can frustrate the purpose and object of the Act, i.e. control of production, processing and trafficking of narcotic drugs and psychotropic substances, as conviction cannot be sustained on a Report that is inconclusive or unreliable. The evidentiary assumption attached to a Report of the Government Analyst under Section 36(2) of the Act underlines the statutory significance of the Report, therefore details of the test and analysis in the shape of the protocols applied for the test become fundamental and go to the root of the statutory scheme. Rule 6 is, therefore, in the public interest and safeguards the rights of the parties. Any Report (Form-II) failing to give details of the full protocols of the test applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a Report of the Government Analyst under Section 36(2).”
The above view of the Apex Court has been reiterated in a recently delivered judgment reported as Qaiser Javed Khan vs. The State through Prosecutor General Punjab, Lahore and another (PLD 2020 SC 57).
4. Thus, following the law laid down by the Hon’ble Supreme Court of Pakistan in the dictums supra, which is binding on all Courts, we hold that the prosecution has miserably failed to bring home charge against the appellants. It is well settled principle of law that a single instance causing a reasonable doubt in the mind of the Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance in this regard is placed upon the judgments reported as Muhammad Akram vs. The State (2009 SCMR 230) and Muhammad Zaman v. The State and others (2014 SCMR 749).
5. Resultantly, this appeal is allowed, the conviction and sentences recorded by the learned trial Court against the appellants through the impugned judgment dated 18.09.2018 are set aside and they are acquitted of the charge. The appellants are in jail, they shall be released forthwith if not required in any other case.
(A.A.K.) Appeal allowed
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