2017 M L D 1471
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ
MUHAMMAD YOUSAF ---Appellant
Versus
The STATE---Respondent
Criminal Jail Appeal No.33 of 2015, decided on 25th April, 2016.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---
Seizure of narcotic---Appreciation of evidence ---Report of test or analysis ---Scope ---Ninety
kilograms charas was alleged to have been recovered in three bags from the car of accused, out
of which, one kilogram from each bag was separated and sent for chemical analysis ---Control of
Narcotic Substances (Government Analysts) Rules, 2001 provided two prescribed Forms i.e.
Form -1 and Form -2; Form -1 had been prescribed as per Rule- 5, which provided procedure and
manner for sending the sample to the laboratory and receipt in the laboratory and the
examination of sample with reference to the test memorandum and Form -2 described the manner
and procedure f or certification of test or analysis of narcotics substance ---Form -1 was not
available on the record; three reports were produced by the prosecution as three parcels of the
chars were dispatched for chemical analysis ---Said three reports had only one signa ture of the
analyst, whereas Form -2, stipulated signatures of two authorized officers of the laboratory ---
Signatures of two authorized officers on the chemical analysis report were mandatory under the
Rules and it was necessary that the report would contai n the necessary protocol and
procedure/tests applied for in reaching the conclusion that the sample received by the laboratory
was narcotic substance---Report which suffered from legal flaws could not be considered as
conclusive proof and would not be term ed or considered as admissible in evidence ---Non -
conclusive and non- speaking laboratory report, which was not compiled according to mandate of
law and rules framed thereunder, could not be relied for sustaining the conviction---Accused was
acquitted in cir cumstances, by setting aside conviction and sentence recorded by the trial court.
Ikramullah and others v. The State 2015 SCMR 1002 and Ameer Zaib's case PLD 2012
SC 380 rel.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 29---Sei zure of narcotic ---Burden of proof ---Section 29 of the Control of Narcotic
Substances Act, 1997 provided that, after successfully discharging the initial burden of proof by
the prosecution, the accused had to discharge the onus of his innocence through cogent and
reliable evidence--- Burden could not be shifted to the accused, when the prosecution had either
failed to establish the recovery or to prove that the recovered articles were contraband items ---
Section 29 of the Act did not absolve the prosecution f rom the primary duty to prove its case
beyond any reasonable doubt ---Burden on prosecution to prove its case could not be shifted to
the accused in an artificial manner ---Law contemplated and provided a procedure for doing any
act, when such procedure was not complied with, that would amount to violation of law ---
Circumstances established that, in the present case, prosecution had failed to discharge the onus --
-Accused was acquitted in circumstances, by setting aside the conviction and sentence recorded
by the Trial Court.
Muhammad Shabir Rajpoot for Petitioner.
Shaukat Ali Rakhsani, Special Prosecutor ANF for Respondent.
Date of hearing: 7th December, 2015.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This Criminal Appeal is
directed against the judgm ent dated 07.07.2015 ("impugned judgment") passed by the learned
Special Judge CNS, Quetta ("trial court"), whereby the appellant was convicted under section
9(c) of the Control of Narcotic Substances Act, 1997 ("the Act") and sentenced to suffer
Rigorous Imprisonment for life with fine of Rs.200,000/ - (two hundred thousand) in default of
payment of fine to further undergo one year S.I. with benefit of section 382 -B, Cr.P.C.
2. The brief frets of the case are that on 29 -08-2014 at about 7:30 p.m. on murasla (Ex-P/1-
A), sent by the complainant Nisar Ahmed, S.I., an FIR No. 65 of 2014, was lodged with AMF
Station, Quetta, alleging therein that on the aforesaid date in pursuance of information of special
informer that a person namely Muhammad Yousaf son of Muha mmad Shah in a white colour
corolla car is going to smuggle a huge quantity of narcotics from Gulistan via Quetta to Sindh,
on which the ANF officials set up the barricade near LRBT Hospital Quetta, when at about 4:00
p.m. a corolla car bearing registratio n No.JM -8001, coming from Quetta city towards Gahi Khan
Chowk was intercepted, and the appellant sitting on the driving seat was apprehended and the car
was searched, resultantly two polythene bags containing raw charas (garda) from the rear seat
and one polythene bag from the boot of the car was recovered. The recovered material on
weighing was found 90 kilograms, out of which one kilogram from each bag was separated for
chemical analysis and sealed in parcels Nos.1 to 3, while the remaining were sealed in parcels
Nos.4 to 6 respectively. The recovered contrabands were taken into custody through recovery
memo. in presence of witnesses and murasla was sent to Police Station ANF, Quetta for
registration of the FIR.
3. On completion of investigation, the chall an of the case was submitted before the trial
court. The appellant did not plead guilty to the charge and claimed trial.
The prosecution in order to substantiate the charge produced as many as three witnesses.
On conclusion of the trial the appellant was examined under Section 342 of the Criminal
Procedure Code, 1898 ("Cr.P.C"), wherein he once again professed his innocence. He recorded
his statement on oath under section 340(2), Cr.P.C, however he did not produce any witness in
his defence. The trial cour t on conclusion of the trial convicted the appellant and sentenced him
vide impugned judgment in the above terms.
6(sic) Learned counsel for the appellant at the very out set referred the chemical expert reports
Ex-P/3-C, Ex -P/3-D, Ex -P/3-E and propounded that subject to Section 36 of the Act, the
Chemical Expert Report was required to be drawn in quadruplicate on the prescribed form and
one copy thereof was to be forwarded to the authority as may be prescribed. He also referred
subsection (2) of Section 36 of the Act, and contended that since any document purported to be a
report signed by the government analyst shall be admissible in evidence without formal proof
and such evidence shall, unless rebutted, be conclusive proof; but in the instant case neither the
reports were issued on the prescribed form nor prepared in quadruplicate, therefore these reports
were not admissible in evidence and conviction recorded on basis thereon is not sustainable. He
besides pointing out certain contradictions in the testim ony of prosecution witnesses, added that
the whole proceedings were conducted in the Police Station after delay of 5 to 6 hours but no
explanation was furnished for not conducting the proceedings at the spot; that the occurrence was
alleged to have taken p lace on 29- 08-2014 while the site map of the occurrence was prepared on
30-08-2014, for which also no explanation was rendered. He propounded that under Chapter -V
of the Police Rules, the Investigating Officer was bound to proceed to the place of occurrenc e
and conduct the initial proceeding at the spot, but that too has not been done according to the
directions of law and rules framed thereunder. The learned counsel while placing reliance on the
judgment of the Hon'ble Supreme Court of Pakistan, passed in the case of Ikramullah and others
v. The State (2015 SCMR 1002), urged with vehemence that in view of the dictum laid down by
the Hon'able Supreme Court of Pakistan conviction recorded against the appellant is not
sustainable and he deserves to be acquitte d of the charge after setting aside the impugned
judgment.
7. Conversely, Mr. Shaukat Ali Rakhshani, learned Special Prosecutor Anti Narcotic Force
(ANF) strongly opposed the contention and added that the reports were neither disputed nor
denied during the trial, therefore the same cannot be disputed in appeal. He stated that the
prosecution has successfully discharge its onus of proof beyond any reasonable shadow of doubt.
The burden to explain the possession whether actual or constructive was on accused t o discharge
but he has failed to meet his part of obligation, therefore subject to provision of Section 29 of the
Act, it can safely be presumed that the accused had committed an offence under which he was
charged, he therefore strongly opposed the appeal and urged for dismissal of the same.
8. Heard. Record perused.
9. Before dilating upon the contention raised by the learned counsel for the respective
parties, it would be helpful to refer sections 35 and 36 of the Act, 1997 which stipulate as under: -
-
"35. Government Analyst . The Federal Government or a Provincial Government may,
by notification in the official Gazette: appoint such persons as it thinks fit, having the
prescribed qualification, to be Federal Government Analysts or, as the case may be,
Provincial Government Analysts, for such areas and in respect of such narcotics drugs,
psychotropic substances or controlled substances as may be specified in the notification.
36.Reports of Government Analysts .---(1) The Government Analyst to whom a sample
of any narcotic drugs, psychotropic substance or controlled substance has been submitted
for test and analysis shall deliver to the person submitting it, a signed report in
quadruplicate in the prescribed form and forward one copy thereof to such authorit y as
may be prescribed.
(2) Notwithstanding anything contained in any other law for the time being in force, any
document purporting to be a report signed by a Government Analyst shall be admissible
as evidence of the facts stated therein without formal pr oof and such evidence shall,
unless rebutted, be conclusive.
The afore- quoted provisions clearly stipulate that a Government Analyst to whom a
contraband sample is sent for examination, shall deliver a report to the person submitting the
sample on a signe d report in quadruplicate in the prescribed form. The Control of Narcotic
Substances Act is a special enactment which provides a special punishment for the offence
committed under the Act. Since the punishment provided under the Act are quite stringent and
long, thus a special care is required while trying such an offence.
10. Section 77 of the Act empowers the Federal Government to make rules for carrying out
the purpose of the Act, in pursuance whereof the Government of Pakistan has framed and
notified th e Control of Narcotic Substances (Government Analysts) Rules, 2001 ("the Rules,
2001"). Rules 5 and 6 applicable in this case are reproduced herein below: --
"5. Receipt in the laboratory and examination of sample with reference to Test
Memorandum .---(1) Th e sealed envelope, containing the samples, received in the
laboratory should he carefully opened and given a distinct laboratory number.
(2) A separate register be maintained for narcotic drugs which may he further subdivided
agency -wise and the laboratory numbers should from a continuous series for each year.
(3) All samples shall be passed to the analyst the same day, who will then keep the same
in his safe custody and will examine and record its, or their, weight in the Test
Memorandums with the markings on the packages envelopes and will ensure that he
tested the relevant sample and in no case, the analysis of a narcotic drug be delayed as the
Courts may refuse to extend remand beyond fifteen days in the absence of a chemical
report.
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."
The Rules, 2001, further provides two prescr ibed forms, i.e. Form -I and Form -II, whereas
Form -I has been prescribed subject to Rule -5, which provides the procedure and manner for
sending the sample to the laboratory, and receipt in the laboratory and the examination of sample
with reference to the t est memorandum, while Form -II, prescribes the manner and procedure for
certification of test or analysis of narcotic drug or psychotropic substance. Thus, the perusal of
Forms -I&II would be helpful to understand the controversy, which speak as follow: --
FORM I
(See Rule 5)
MEMORANDUM FOR THE FEDERAL NARCOTICS
TESTING LABORATORY
Serial No
Form
To the office incharge, Federal Narcotics Testing
Laboratory
I send herewith, under the provision of section 35 of the CNS Act, 1997, sample(s) of a
narcotic dr ug purporting to be for test or analysis and request that a report for the result of
the test or analysis may be supplied at the earliest.
The other details are as under: --
1. Description of drug and the weight of the sample (s).
2. Date and place of seizure ..
3. Date of drawal and dispatch of sample.
4. No. of samples and marking on each of them for identification.
5. Description and number of seals put on sample.
Date ________ Name and Signature
of forwarding officer
FORM II
(See rule 6 )
CERTIFICATION OF TEST OR ANALYSIS BY
FEDERAL NARCOTIC TESTING LABORATORY
GOVERNMENT ANALYST.
1. Certified that the sample bearing No purporting to be sample of received on With
memorandum No. dated from has been tested/analyzed and the result of each tes t/analysis
is stated below:--
2. 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 R ESULTS OF TESTS/ANALYSIS:
Sample No ..
Gross Wt. ..
Net Wt ..FIR 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 contains %
Signature of Government Analyst
Federal Narcotics Testing Laboratory
Signature of any other authorized
officer of Laboratory.
11. We have noticed that the Form -I is not available on t he record. The three reports Ex -P/3-
C. Ex -P/3-D and Ex -P/3-E were produced by the prosecution. According to the prosecution case
three parcels of raw charas were alleged to have been recovered, weighing 90 kilograms and
from each parcel one (01) kilogram w as separated for chemical analysis, and three parcels were
separately dispatched for chemical analysis, but the aforesaid three reports bear only one
signature of the Federal Government Analyst, whereas the Rules, 2001 prescribes Form -II,
which stipulates signatures of two authorized officers of the Laboratory. The report is silent
about the necessary protocols, the test applied and the result. Neither any protocol has been
mentioned in the report nor any test was referred to on the basis whereof the chemic al expert has
concluded that the samples sent for examination contained charas. Similarly, the report does not
contain the signatures of two authorized officers.
For rendering the above view we are supported by the dictum laid down by the Hon' able
Supre me Court of Pakistan in Ikramullah's case (2015 SCMR 1002) when the Hon' able Supreme
Court while dealing with the identical proposition held as under: --
"According to the prosecution a sample was taken from each and every recovered packet
for its onward t ransmission to the office of the Chemical Examiner and subsequently the
Chemical Examiner had submitted a report maintaining that the samples so sent
contained charas. We have particularly noticed that the report submitted by the Chemical
Examiner (Exhibit- P.W.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 c ontext 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 he signed in quadruplicate and supplied
forthwith to the sender as specified in Form -II"
A bare look at the report submitted by the Chemical Examiner in the present case shows
that the entire page which was to refer to the relevant protocols and tests was not only
substantia lly kept blank but the same had also been scored off by crossing it from top to
bottom. This surely was a complete failure of compliance of the relevant rule and such
failure reacted against reliability of the report produced by the prosecution before the
learned trial Court. Section 36 of the Control of Narcotic Substances Act, 1997 requires a
Government Analyst to whom a sample of the recovered substance is sent for
examination to deliver to the person submitting the sample a signed report in
quadruplicat e 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"
12. Since the principle laid down by the Hon' able Supreme Court of Pakistan in Ameer
Zaib's case (PLD 2012 SC 380) are also applicable in the instant case and the principle
elucidated in the judgment supra that "the harsher the sentence, the stricter the proof" would be
required for recording the conviction, keeping in view the rigorous discipline of the procedure
and punishment provided under the Act, 1997. 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
subsection (2) of Section 36 of the Act. Since the appeal is always considered as continuity of
main trial, therefore we do not find ourselves in agreement with the learned Special Prosecutor
that the report if not disputed and denied at the trial, cannot be challenged in appeal.
Here we may mention that supreme object of the Court is always to administer even
handed justice to the par ties before it and in order to achieve this object, the court neither should
unreasonably lean in favour of a party nor deprive other of due right to offer defence.
13. Though according to Section 29 of the Act, 1997 after successfully discharging the init ial
burden of proof by the prosecution, the accused has to discharge the onus of his innocence
through cogent and reliable evidence, but under the Criminal Justice System the burden cannot
be shifted to the accused, when the prosecution has either failed t o establish the recovery or to
prove that the recovered articles are contraband item(s). Section 29 of the Act does not absolve
the prosecution from the primary duty to prove its case beyond any reasonable doubt.
14. 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 signatures of two authorized
officers on the chemi cal analyst report are mandatory under the Rules, 2001 and it is also
necessary that the report shall contain the necessary protocols and procedure/tests applied for in
reaching the conclusion that the samples received by the laboratory are narcotic drug o r
psychotropic substance. 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 compiled according to
mandate of law and rules framed thereunder, cannot be relied for sustaining the conviction.
Therefore, for this reason "the failure of prosecution cannot be equated with failure of justice".
Thus in view of above discussion, we are of the considered view that prosecution has
miserably failed to substantiate the charge against the convict/appellant, therefore the impugned
judgment dated 07.07.2015, passed by the learned Special Judge CNS, Quetta, is set aside and
the appellant is acquitted of the charge in case FIR No. 65 of 2014 of ANF Station, Quetta, under
Section 9(c) of the Act, 1997. The appellant is ordered to be released forthwith if not required in
any other case.
JK/47/Bal Bail granted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.