2024 M L D 1321
[Balochistan]
Before Muhammad Ejaz Swati and Gul Hassan Tareen, JJ
ABDUL GHAFFAR---Appellant
Versus
The STATE ---Respondent
Criminal Appeal No. (T)82 of 2022, decided on 19th December, 2022.
(a) Control of Narcotic Substances (Government Analysts) Rules 2001---
----R.4(2) ---Control of Narcotic Substances Act (XXV of 1997), S.9--- Possession of
narcotics ---Rule 4(2) the Control of Narcotic Substances (Government Analysts) Rules,
2001--- Directory in nature ---Said R. 4(2) prescribed time 72 hours for dispatching of
sample for analysis from the time of seizure ---However, the language of the R. 4(2) is
directory and not mandatory--- Thus, there is no bar on an Investigating Officer to
send the samples for analysis beyond 72 hours of the seizure because the language
of R. 4(2) is directory--- Non compliance of Rule 4(2), would not render search, seizure and
arrest of an accused as absolute nullity and make the entire prosecution case doubtful.
Tariq Mehmood v. The State through Deputy Attorney General Peshawar PLD 2009
SC 39 rel.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S.9(b) ---Possession of narcotics ---Appreciation of evidence ---Safe custody of the
recovered substance not proved ---Effect ---Accused was charged for having 1000 grams
charas ---In order to prove safe custody of the seized charas, the prosecution produced In-
charge Store Room, who deposed that on 6th July, 2022, the Investigating Officer handed
over to him the parcels of the instant case and he placed them in the store room ---Said
witness incorporated receipt of parcels in his register at serial No. 1205; however, the witne ss had not produced store room register or copy thereof during his examination in chief
before the Trial Court ---Investigating Officer had not taken into possession the copy of said
store room register---Through the In- charge Store Room the prosecution had failed to
establish the safe custody of the alleged recovered charas ---Hence the chain of safe custody
had been compromised by the prosecution,which created a reasonable doubt in the prosecution case ---Appeal against conviction was allowed, in circumstances.
Khaleef Ahmed Dashti for appellant.
Sudheer Ahmed, Additional Prosecutor General for the State.
Date of hearing: 8th December, 2022.
JUDGMENT
GUL HASSAN TAREEN, J. ---Vide judgment dated 5th November, 2022
("impugned judgment"), passed by learned Special Judge, CNSA, Mekran at Turbat ("Trial Court"), in case FIR No. 146/2022, dated 06th July, 2022 (Ex: P/5- A), P.S. City Turbat,
the appellant Abdul Ghaffar son of Fida Hussain, has been convicted under section 9 (b), the Control of Narcotic Substances Act, 1997 ("CNSA") and sentenced to suffer ten months (R.I.) with fine of Rs. 10,000/ -, in default to pay, to further undergo one month (S.I.) with
benefit of section 382- B, the Criminal Procedure Code, 1898 ("Cr.P.C").
2. Brief facts as disclosed from the report of complainant Roshan Ali SI (Ex: P/1 -A)
are that, the complainant alongwith police contingent, in an official vehicle, was on patrol duty. During the course of patrolling, at about 02.40 p.m., they reached Sangani Sar Munir
Mubaraki Mohallah Link Road, where they found a person walking besides the road in
suspicious gestures. When they reached near him, the said, on seeing police party, had a puzzled expression, whom was over powered. The said disclosed his name as Abdul Ghaffar son of Fida Hussain, Caste Baloch, resident of Sangani Sar Turbat. On his personal search, one packet of Charas was recovered from his trouser. On weighing, it was found
1000 grams. A piece of 05- grams was separated from the seized Charas for chemical
analysis and sealed it in parcel No. 1, while the remaining 995- grams was sealed in parcel
No. 2. Murasilla was sent to police station upon which formal FIR No. 146/2022 was
registered with Police Station City Turbat, District Kech.
3. After formal investigation, challan of the case was submitted before the Trial Court
and on 11th August, 2022, a formal charge was read over to the appellant to which he pleaded "Not Guilty" and claimed trial. In order to substantiate the alleged recovery, the prosecution examined following witnesses:
PW-1 Roshan Ali SI, the complainant who tendered in evidence, the complaint as
Ex: P/1 -A;
PW-2 Adil Hussain , 269/Constable, who is recovery witness. In his presence the
alleged Charas was recovered and seized through recovery memo Ex: P/2- A;
PW-3 Zakir Ali, ASI, Head Moharir P.S. Turbat, In- charge store room. He deposed
that on 6.7.2022, the Investigating Officer handed over seized Charas to him and on 13.7.2022, he handed over parcel No. 1 alongwith parcels of other cases to special messenger Muhammad Raheem for chemical analysis. He also deposed that he incorporated receipt of parcels in his register;
PW-4 Muhammad Rahim 157/HC, who took the parcels to the FSL; and
PW-5 Usama Bajar ASI is the Investigating Officer. He tendered in evidence FIR as
Ex: P/5 -A, incomplete challan as Ex: P/5 -B, FSL report as Ex: P/5 -C and complete
challan as Ex: P/5 -D.
On completion of prosecution evidence, the appellant was examined under section
342, Cr.P.C, wherein he once again professed his innocence and denied the prosecution case. However, he did not opt to make statement on oath as envisaged under section 340 (2) Cr.P.C or to lead evidence in defence. On conclusion of trial, the Trial Court convicted and sentenced the appellant in the aforementioned terms.
4. Counsel for the appellant, Mr. Khaleef Ahmed Dashti, Advocate states that parcel
No. 1 was dispatched to FSL with an un- explained delay of seven days. He also states that
there are material contradictions in the prosecution evidence; that the prosecution has also faild to prove safe custody and transmission of the alleged recovered Charas. He states that there is delay of seven days in dispatching of the alleged sample to the Chemical Examiner, therefore, tampering cannot be ruled out.
5. Mr. Sudheer Ahmed Additional Prosecutor General supported the impugned
judgment and states that the prosecution has proved its case beyond any reasonable doubt. He states that the appellant was caught red handed and appellant has failed to attribute any mala fide to the prosecution for his false implication in the instant case.
6. Heard. Record perused.
7. So far as the first contention of the learned counsel for the appellant that there was
an unexplained delay in sending representative sample to the Chemical Laboratory, is concerned, the same is without force. Though Rule 4(2), the Control of Narcotic Substances (Government Analysts) Rules, 2001 ("Rules 2001"), prescribes time of 72 hours for dispatching of sample for analysis from the time of seizure, however, the language of the Rule 4(2), the Rules 2001 is directory and not mandatory. There is no bar on an Investigating Officer to send the samples for analysis beyond 72 hours of the seizure because the language of the Rule 4(2), the Rules 2001 is directory. Non -compliance of
Rule 4(2), the Rules 2001 would not render search, seizure and arrest of an accused as absolute nullity and makes the entire prosecution case doubtful. In this regard, reliance is placed on the case Tariq Mehmood v. The State through Deputy Attorney General
Peshawar, PLD 2009 SC 39. Even otherwise the delay in dispatching the representative
sample to the Chemical Laboratory has been explained by the prosecution. PW -3 deposed
that because of Eid -ul-Azha holidays, the offices were closed, therefore, parcel No. 1 along
with other parcels were handed over to the special messenger Muhammad Rahim, on 13th July, 2022, hence the first contention of the appellant's counsel is repelled.
8. In order to prove safe custody of the seized Charas, the prosecution produced in -
charge store room as PW- 3, who deposed that on 6th July, 2022, he was present at police
station. The Investigating Officer handed over to him the parcels of the instant case and he placed them in the store room.
He also deposed that he incorporated receipt of parcels in his register at serial No.
1205: howwever, the PW -3 has not produced store room register or copy thereof during
examination in chief before the Trial Court. The Investigating Officer has not taken into possession the copy of said store room register. During his cross -examination, in reply to
question No. 6, the Investigating Officer stated as under:
"6. It is correct that I have not formed, the copy of register No. 19, part of the
record."
Through the PW -3, the prosecution has failed to establish the safe custody of the
alleged recovered Charas. Rule 22.18, the Police Rules, 1934, instructions have been issued regarding custody of a seized property. Sub- Rule (2) of this Rule provides that "all case
property and unclaimed property, other than cattle, of which the police have taken possession, shall, if capable of being so treated, be kept in the store room. Otherwise, the officer in -charge of the police station shall make other suitable arrangements for its safe
custody until such time as it can be dealt with under sub -rule (1) above.
Each article shall be entered in the store- room register and labeled. The label shall
contain a reference to the entry in the store -room register and a description of the article
itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store -room register."
It is basic rule of evidence, not one of technicality, but of substance that where
written document exists, it shall be produced as being best evidence of its own contents. Under the aforementioned police rule, the seized case property is to be entered into a register and then to be kept in the store room. The safe custody of a seized case property can be established when the copy of the register of store room, is formally brought on the record of the Court. Any matter required by law to be reduced to the form of a document, no oral evidence shall given for proof of that matter except the document itself. In this respect Article 102, the Qanun -e-Shahadat Order -X, 1984 is relevant to be reproduced
hereunder:
"102. Evidence of terms of contracts, grants and other disposition of property reduced to form of document. When the terms of a contract, or of grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained."
In the instant case, the oral statement of PW -3 to the extent of safe custody, is
inadmissible in evidence under Article 102, the Q.S.O for failure of the Investigating Officer to make the said register or copy thereof, as part of the record. The safe custody, in this case, has not been proved by the prosecution, through production of register of store room. Hence the chain of safe custody has been compromised by the prosecution. This creates a reasonable doubt in the prosecution case, in the peculiar circumstances of the instant case.
9. We have gone through the impugned judgment; however, the Trial Court has
overlooked this aspect of the case, which makes the impugned judgment, liable to setting
aside.
For the foregoing discussion, the appeal is allowed; the impugned judgment is set
aside. Resultantly, the appellant Abdul Ghaffar son of Fida Hussain is acquitted of the
charge in case FIR No. 146/2022, dated 06th July, 2022, under section 9(b), the Control of Narcotic Substances Act, 1997, P.S. City Turbat. The appellant is in custody, he be set at liberty forthwith, if not required to be detaind in any other case.
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