PLJ 2023 Cr.C. (Note) 265
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ.
SOHRAB KHAN--Appellant
versus
STATE--Respondent
Crl. A. No. 204-J & CSR No. 20-N of 2013, heard on 3.10.2019.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 36(2)--Expert report--Scope of--Recovery of charas--The minute perusal of Chemical Examiner Report established fact that above said reports are in composite and are not on prescribed Form-II provided in Rules, 2001--The law has provided s scope for person throwing challenge to expert’s report to rebut same and in this regard reference has been made to sub-section (2) of Section 36 of act--It is seriously observed by us in numerous cases expert report being made in sheer violation of prescribed law without observing proper codal formalities, which either reflect gross negligence at part of prosecuting agency, resulted acquittal of accused persons or deliberately and intentionally violating rules being in league with culprits--Section 36 of Act requires a Government Analyst to whom a sample of recovered substance is sent for examination to deliver person submitting sample a signed report in quadruplicate in prescribed form II as provided under Rule 6 of Rules and if report prepared by him has not been prepared in prescribed manner, then it may not qualify to be a report in context of Section 36 of Act so as to be treated a “conclusive proof of recovered narcotic substance from an accused person. [Para 8] A
2015 SCMR 1002.
Burden of Proof--
----According to settled principles of law burden on prosecution to prove its case cannot be shifted to accused in artificial manner when law contemplates and provides a procedure for doing any act--When such procedure is not complied with, it amounts to violate law--The report which is suffering from legal flaws cannot be considered as conclusive proof and would not be termed or considered as admissible in evidence--Thus, non conclusive and non-speaking laboratory report, which was not complied according to mandate of law and rules framed thereunder, cannot be relied for sustaining conviction. [Para 8] B
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9(c) & 48--Conviction and sentence--Challenge to--Benefit of doubt--Recovery of charas--Chain of custody begins with t recovery of seized drug by Police and includes separation of representative sample(s) of seized drug and their dispatch Narcotics Testing Laboratory--The prosecution must establish that chain of custody was unbroken, unsuspicious, indubitable, safe and secure--Any break in chain of custody or lapse in control of possession of sample, will cast doubts on safe custody and safe transmission of sample(s) and will impair and vitiate conclusiveness and reliability of Report of Government Analyst, thus, rendering it incapable of sustaining conviction--All these facts evaded credibility of deposit of samples with Chemical Examiner Office and rendered case of prosecution doubtful--The burden always remains on prosecution to prove affirmatively right from arrest of accused, seizer of recovered contraband, deposit with moharrar on same as and till it reaches office of Chemical Examiner--All these facts mast be in line but facts of present case create doubt on as of prosecution and benefit of reasonable doubt always goes to accused and not to prosecution--The prosecution has failed to prove its case beyond reasonable doubt--As per dictates of law benefit of every doubt is to be extended in favour of accused--Prosecution had failed to prove its case against appellant beyond reasonable doubt--This appeal is, therefore, allowed, conviction and sentence of appellant recorded by trial Court are set aside and he is acquitted of charge by extending benefit of doubt to him--He shall be released from jail forthwith if not required to be detained in connection with any other case.
[Para 9, 11 & 12] C, D & E
2018 SCMR 2039, PLJ 2019 Cr.C. 326 (DB), 2014 SCMR 749,
2009 SCMR 230.
Mr. Irfan Riaz Gondal, Advocate for Appellant.
Mr. Waqas Anwar, Deputy Prosecutor General for State.
Date of hearing: 3.10.2019.
Judgment
Sardar Muhammad Sarfraz Dogar, J.--Having faced trial in case FIR No. 12 dated 20.1.2011, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with the Police Station Bhera, District Sargodha, the convict-appellant, Sohrab Khan was convicted by the learned Additional Sessions Judge/Special Judge CNSA, Bhalwal, vide judgment dated 27.6.2013, under Section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced him to death with direction to pay Rs. 2,00,000/- (rupees two lacs only) as fine and in case of default whereof to further undergo S.I. for six months.
2. The appellant has challenged his above-said conviction and sentence before this Court by way of filing the instant Criminal Appeal No. 204-J of 2013 through jail under Section 48(1) of the Control of Narcotic Substances, Act, 1997, whereas, a Capital Sentence Reference No. 20-N of 2013 sent by the learned trial Court under Section 374, Act V of 1898 is also under consideration, for confirmation or otherwise of the sentence of death awarded to the appellant. We propose to decide both these matters together through this consolidated judgment.
3. Pithy facts of the prosecution case as propounded by the complainant Sajjad Ahmed SI/SHO (PW-6) through complaint (Exh.PE) on the basis whereof formal FIR (Ex.PA) was chalked out are that on 20.1.2011, he alongwith other police officials intercepted a car bearing Registration No. LOJ-3184, driven by the appellant, at Bhera Interchange. On seeing the police party, the appellant tried to slip away but apprehended and on his disclosure two sacks containing 84 packets of charas weighing 75 kilograms were recovered from the dickey of the car. Out of recovered charas, 10 grams from each packet was extracted for chemical analysis and sealed into parcels. Besides, an amount of Rs. 780/- and a mobile phone was also recovered from the appellant.
4. In pursuance of the above F.I.R., investigation was conducted by Mazhar Ali S.I (PW-4), who during the course of investigation finding the appellant guilty of the offence, recommended him for trial by furnishing report under Section 173, Cr.P.C. before the Court of competent jurisdiction. The learned trial Court, while taking cognizance of case framed formal charge against the appellant to which he pleaded not guilty. In order to prove the charge against the appellant, prosecution examined six witnesses and also tendered certain documents including report of the Chemical Examiner (Exh.PF) as part of prosecution evidence. One Muhammad Ramzan was also examined as (CW-1). On completion of prosecution evidence, statement of the appellant was recorded under Section 342 of Cr.P.C. through which he denied all the allegations against him and pleaded his innocence. The appellant, however, did not opt to either record his statement under Section 340 (2) of “Cr.P.C.” or to produce any defence evidence. On culmination of trial, the appellant was convicted by way of impugned judgment as is referred hereinabove. Hence, this appeal and the connected Capital Sentence Reference Before this Court.
5. Arguments advanced by the learned counsel for the appellant as well as learned Deputy Prosecutor General for the State have been heard and the record has been perused minutely.
6. The prosecution story begins when on 20.1.2011, at Bhera Interchange, the complainant (PW-6) apprehended the appellant and on his disclosure two sacks containing 84 packets of charas total weighing 75 kilograms were recovered from the dickey of car bearing Registration No. LOJ-3184. The complainant (PW-6) separated 10 grams charas from each packet for chemical analysis and sealed into parcels, which were taken into possession vide recovery memo. (Exh.PB). On arrival of Investigating Officer (PW-4), the complainant (PW-6) handed over him the case property, accused and police file. The Investigating Officer (PW-6) recorded the statements of P.Ws. at the place of occurrence and prepared site-plan (Exh.PD). He (PW-4) handed over the charas, Rs. 780/-, mobile phone and car to Moharrar Amir Mukhtar for safe custody. Amir Mukhtar ASI/Moharrar (PW-1) deposed that the Investigating Officer handed over to him two sealed packets said to contain charas for safe custody in Malkhana. (PW-1) handed over the sample parcel to Wazir Ali constable for its onward transmission to the office of Chemical Examiner. Wazir Ali constable (PW-2) deposed that on 01.2.2011 he received sample parcel from the Moharrar and on the following day, he deposited the same in the office of Chemical Examiner. But while facing cross-examination, he (PW-2) deposed that the parcel said to contain 84 packets of charas was sealed. Since all the packets were separately sealed and he counted them before putting them in one packet, therefore, he can tell the number of packets in the parcels.
7. The above depositions of the prosecution witnesses make the instant case highly doubtful on the dimension of safe transmission of sample parcels to the office of Chemical Examiner as the complainant (PW-6) stated that he handed over the case property to Investigating Officer. He failed to depose about handing over the sample parcels to the Investigating Officer. The Investigating Officer (PW-4) deposed that he handed over charas to the Moharrar. He failed to describe about number of parcels, which he given to the Moharrar. The Moharrar (PW-1) admitted receiving of two parcels from the Investigating Officer, out of which one parcel was handed over to Wazir Ali constable (PW-2). Said Wazir Ali constable in his cross- examination admitted that he counted the said parcels, which were found 84 in numbers. Meaning thereby, Wazir Ali constable opened the parcel containing samples and the same not again sealed. Even otherwise, Wazir Ali constable deposited the sample parcels in the office of Chemical Examiner on the following day and there is nothing on record to establish that during his custody the sample parcels remained in safe custody. The report of Chemical Examiner (Exh.PF) narrated a different story of reaching the sample parcels to the office of Chemical Examiner that on 29.1.2011, DPO Sargodha dispatched the sample parcels to the said office, which were received on 02.2.2011. The entire prosecution story is silent that as to how the sample of the recovered substance had come in the hands of the DPO Sargodha, and what was the evidence available on the record to confirm that the same had been kept in safe custody while in possession of the DPO, Sargodha, but after going through the record of this case from cover to cover there is no evidence whatsoever available on the record in those respects. In the attending circumstances, it is crystal clear that the prosecution has failed to prove the safe transmission of sample parcels to the office of Chemical Examiner.
8. The minute perusal of Chemical Examiner Report (Exh.PF) established the fact that the above said reports are in composite and are not on prescribed Form-II provided in Rules, 2001. The law has provided scope for person throwing challenge to the expert’s report to rebut the same and in this regard reference has been made to sub-section (2) of Section 36 of the Act. It is seriously observed by us in numerous cases the expert report being made in sheer violation of prescribed law without observing proper codal formalities, which either reflect gross negligence at the part of prosecuting agency, resulted acquittal of the accused persons or deliberately and intentionally violating the rules being in league with the culprits. Section 36 of the Act requires a Government Analyst to whom a sample of the recovered substance is sent for examination to deliver the person submitting the sample a signed report in quadruplicate in the prescribed form II as provided under Rule 6 of the Rules and if the report prepared by him has not been prepared in the prescribed manner, then it may not qualify to be a report in the context of Section 36 of the Act so as to be treated a “conclusive proof” of recovered narcotic substance from an accused person. Reliance in this regard is placed on the case of Ikramullah v. State (2015 SCMR 1002). Relevant portion is reproduced herein below:
“… We have particularly noticed that the report submitted by the Chemical Examiner (Exhibit-RW-2/5) completely failed to mention the basis upon which the Chemical Examiner had come to a conclusion that the samples sent to him for examination contained charas. According to Rules 5 and 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 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 but in the case in hand we note that no protocol whatsoever was mentioned in the report submitted by the Chemical Examiner and no test was referred to on the basis of which the Chemical Examiner had concluded that the samples sent to him for examination contained charas. In the context of the present case Rule 6 is of paramount importance and the same is reproduced below:
6. Report of result of test or analysis. After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II.”
According to settled principles of law the burden on prosecution to prove its case cannot be shifted to the accused in artificial manner when the law contemplates and provides a procedure for doing any act. When such procedure is not complied with, it amounts to violate the law. The report which is suffering from legal flaws cannot be considered as conclusive proof and would not be termed or considered as admissible in evidence. Thus, the non-conclusive and non-speaking laboratory report, which was not complied according to mandate of law and rules framed thereunder, cannot be relied for sustaining the conviction.
9. The Court has to examine the evidence from the starting point in order to reach to an inescapable conclusion on the basis of reasoning keeping in mind the legal principles and after satisfying the constituents of recovery of narcotics from the appellant, safe custody of case property and sample parcels, safe transmission of sample parcels to the office of Chemical Examiner and the proof that the recovered substance is narcotics within the purview at CNSA, 1997. Needless to mention here that the chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing 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. In this regard, guidance can be sought from the case of The State through Regional Director ANF versus Imam Bakhsh” (2018 SCMR 2039) and Umar Shahzad and others v. State and another (PLJ 2019 Cr.C. 326 DB).
10. Apart from above, the complainant (PW-6) deposed that he extracted 10 grams charas from each packet for chemical analysis. Whereas, the recovery witness (PW-5) deposed otherwise that the Investigating Officer separated ten grams charas from each packet. The complainant (PW-5) deposed that the Investigating Officer reached at the place of occurrence at 2.45 p.m. and the FIR was lodged on 3.30 p.m. The depositions of Investigating Officer (PW-4) reveal that the investigation was entrusted to him after the registration of the case. The recovery witness (PW-5) also stated that the recovered charas was of dark brown colour whereas report of Chemical Examiner reflected otherwise that the tested material was of greenish colour. The prosecution has also failed to produce the recovered car before the learned trial Court during the trial. The prosecution has alleged that the said car was emerged from Bhera Interchange but the prosecution has failed to get into possession the chit of Motorway Interchange or to associate any person relating to the said Interchange.
11. All these facts evaded the credibility of the deposit of the samples with the Chemical Examiner Office and rendered the case of the prosecution doubtful. The burden always remains on prosecution to prove affirmatively right from the arrest of the accused, seizer of the recovered contraband, deposit with moharrar on the same day and till it reaches the office of Chemical Examiner. All these facts must be in line but the facts of the present case create doubt on the case of the prosecution and benefit of reasonable doubt always goes to the accused and not to the prosecution. The prosecution has failed to prove its case beyond reasonable doubt. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Reliance is placed on “Muhammad Zaman versus The State” (2014 SCMR 749), and “Muhammad Akram versus The State” (2009 SCMR 230).
12. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.
13. Resultantly, death sentence awarded to Sohrab Khan appellant is not confirmed and Capital Sentence Reference No. 20-N of 2013 is answered in the negative.
(A.A.K.) Appeal allowed
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