2020 M L D 202
[Balochistan (Sibi Bench)]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
ABDUL AZIZ and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. (s)84 of 2019, decided on 2nd August, 2019.
Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 36--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.
6---Possession of narcotics ---Report of Government Analysts ---Failure of Analysts to
mention full protocols of tests applied ---Effect ---Excise police, on spy information,
intercepted the car of accused and recovered five kilograms of charas from the secret
cavities of the car ---Report of Chemical Examiner did not contain full protocol of tests
applied ---Report was not in accordance with S .36(1), Control of Narcotic Substances Act,
1997, which was mandatory--- Report of Analysts was silent in respect of safe
transportation/transmission of narcotic to the Chemical Expert ---Statement of police officer
who had taken the sample for analysis was not recorded ---Report in question was of no
evidentiary value ---Appeal was allowed, in circumstances.
Ikramullah and others's case 2015 SCMR 1002; Muhammad Yousaf's case 2017
MLD 1471; Waqas Ali's case 2017 YLR 878 and Abdul Ahad's case Criminal Appeal No.368 of 2018 ref.
Khair -ul-Bashir v. State 2019 SCMR 930 and Abdul Ghani v. State 2019 SCMR
608 rel.
Muhammd Shabir Ahmed Rajput for Appellant.
Abdul Karim Malghani for the State.
Date of hearing: 30th July, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This Criminal appeal is directed against the
judgment dated 30.04.2019 (impugned judgment) passed by the Special Judge, Under Control of Narcotic Substances Act, 1997/Model Criminal Trial Court Sibi (trial Court), whereby the appellants were convicted under Section 9(c) of the Control of Narcotic
Substances Act, 1997 ("the Act") and sentenced to suffer Rigorous Imprisonment (RI) for life with fine of Rs.100,000/ - (Rupees one hundred thousand) each, in default whereof,
further directed to undergo six months' Simple Imprisonment (SI) each with benefit of Section 382 -B of Criminal Procedure Code, ("Cr.P.C.").
2. Brief facts leading to file the instant appeal are that on 23.02.2019 complainant
Muhammad Waseem Inspector Excise lodged an FIR No. 01/2019, with Excis e Police
Station, Sibi, alleging therein that on the stated date and time on the information of spy informer during checking at Lundi Cross, at about 11:15 a.m. a car bearing Registration No. BJU -206 coming from Quetta boarded by accused was intercepted. O n search 50
packets of baked charas (each packet weighing 1000 grams) were recovered from secret cavities of the car, which were taken into possession through vide recovery memos.
3. After completion of investigation the challan was submitted before the tr ial court,
whereby charge was framed and read over to the appellants to which they did not plead guilty and claimed trial. Thereafter the prosecution led its evidence to substantiate the charge. On completion of prosecution evidence the appellants were exa mined under Section
342, Cr.P.C. wherein they once again professed their innocence. The appellants did not record their statements on oath as envisaged under Section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of the trial the appellants were convicted in the aforesaid terms. Hence this appeal.
4. Learned counsel for the appellant contended that the FSL report Ex- P/3-A in not in
accordance with the Section 36 of the Act and Rule 6 of the CNS (Government Analysts) Rules 2001 beca use the same does not contain the complete protocol nor supported with
the documents with regard to the test applied; that the inconclusive, therefore cannot be used against the appellants. He relied upon the cases of Ikramullah and others 2015 SCMR 1002, Muhammad Yousaf 2017 MLD 1471, Waqas Ali 2017 YLR 878, Abdul Ahad
(Criminal Appeal No.368 of 2018).
5. Conversely, learned DPG defended the impugned judgment on the ground that the
appellants were apprehended when they were carrying the narcotics in the ca r; that there is
no personal grudge of the police with the appellants; that despite lengthy cross -
examination, the prosecution witnesses were not shaken and they remained firm on their deposition. He lastly urged for dismissal of the appeal.
6. We have heard learned counsel for the parties and have also perused the record with
their able assistance. The perusal of record reveals that on the information of spy informer the excise official during checking at Lundi Cross, intercepted a car bearing Registration
No. BJU -206 coming from Quetta boarded by accused and five kilograms charas were
recovered from the secret cavities of the car.
7. It may be observed that the Test/Analyst Report i.e. Ex- P/3-B, issued by the Federal
Narcotics Testing Laboratory, Forensic Science Laboratory Crimes Branch Balochistan,
Quetta is not in accordance with Section 36(1) of the Act, which is mandatory in natur e.
The report in question has no evidentiary value in view of the law declared by the Hon'ble Supreme Court of Pakistan in the case titled as "Khair -ul-Bashir v. State" reported in 2019
SCMR 930, wherein it has been held as under:
"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 repo rt 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
3 on
11.07.1997 while the Rules were framed and gazetted on 28.11.2001 under the tit le
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 GOVERNM ENT
ANALYST I. Certified that the sample bearing on ______ purporting to be sample of______ received on______ with memorandum No.______ dated_________ from_______ has been tested/analyzed and the result of
each test/analysis is stated below: 2. That the co ndition of the seal on the
packet on receipt was as follows; Satisfactory/Unsatisfactory/None. 3. In the
opinion of theundersigned 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:______ FIR No._______ Dated______
Accused________ Physical Examination___________
Conclusion_______________ NOTE: In case of mixture the %age of each
Alkaloids, Opium derivatives, Opiates, Cannab is, Drugs of abuse and the
synthetic compounds are as follows: The sample identified as___________ and contain % ---Signature of Government Analyst Federal Narcotics Testing
Laboratory Signature of any other authorized officer of Laboratory
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) 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 re quirement of Rule 6."
8. While following the observation rendered by the Hon'ble apex Court, the report of
chemical examiner i.e. Ex:P/3- B was perused, the same does not contain full protocol.
According to chemical expert report, the alleged contraband was received by the laboratory
on 25.02.2019, but the record is totally silent in respect of safe transportation/transmission of the same to the criminal expert, even the statement of police officer was not recorded who had taken sample for analysis, which cr eates serious doubts in the whole prosecution's
case.
9. For rendering this view, we are fortified from the dictum laid down by the Hon'ble
Supreme Court of Pakistan on the case of Abdul Ghani v. State 2019 SCMR 608, wherein it has been held as under:
"2. There is hardly any occasion for discussing the merits of the case against the
appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this
case. Nisar Ahmed, S.I./SHO complainant (PW1) had stated before the trial court
that he had deposited the recovered substance at the Malkhana of the local Police
Station but admitte dly the Moharrir of the said Police Station had not been produced
before the trial court to depose about safe custody of the recovered substance. It is also not denied that Ali Sher, H.C. who had delivered the samples of the recovered substance at the offi ce of the Chemical Examiner had also not been produced during
the trial so as to confirm safe transmission of the samples of the recovered substance. It has already been clarified by this Court in the cases of The State through Regional Director ANF v. Ima m Bakhsh and others (2018 SCMR 2039), Ikramullah and
others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) that in a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through independent evidence there it cannot be concluded that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt. The case in hand suffers from the same legal defects. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwi th if not
required to be detained in connection with any other case,"
6(sic). For the foregoing reasons, we are of the considered opinion that to the extent of
absence of full protocols to the tests applied, there was non- compliance of rule 6 of the
Rules. Further the safe transmission of the alleged seized contraband was also not
established, as such, the instant appeal is allowed and the impugned judgment dated 30.04.2019 passed by the learned Special Judge, Under Control of Narcotic Substances Act, 1997/ Model Criminal Trial Court Sibi (trial Court) is set aside. Consequently, the appeal is
allowed. The appellants/accused namely Abdul Aziz son of Ghulam Muhammad and Asghar Ali son of Maher Ali are acquitted of the charge. They are in judicial custody. They
be released forthwith if not required in any other case.
SA/75/Bal. Appeal allowed.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,
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