2024 M L D 1478
[Balochistan]
Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ
IMRAN MUNIR---Appellant
Versus
The STATE ---Respondent
Criminal Appeal No. 159 of 2023, decided on 21st July, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Single
consolidated sample from all packets sent for forensics ---Prosecution case was that 40 -
kilograms charas was recovered from the vehicle driven by the accused ---Seizing Officer
reiterated what he had incorporated in his murasila ---Surprisingly, Seizing Officer did not utter
a single word in his examination -in-chief for extracting samples and making parcels of the
recovered 40 packets of baked cannabis ---Seizing Officer also failed to mention about arrival
of the Investigating Officer, regarding preparation of the parcels in question of the narcotic and
the car allegedly driven by accused ---Recovery witness testified in similar lines as deposed by
Seizing Officer regarding recovery of 40 packets of narcotic substance weighing 40 kilograms -
--Recovery witness further added that 10 grams charas from each packet, total weighing 400 grams, were put in parcel No.1, whereas remaining 39660 grams charas was put in parcel No.2, which was secured through recovery memo---Deposition of said witness manifested that no separate samples were extracted for chemical analysis rather a consolidated sample i.e. parcel No.1 of 40 packets of charas was prepared, which was subsequently sent to the Chemical Examiner, whereof positive Forensic Science Laboratory Report was received ---Seizing
Officer should have secured separate sample from each packet for chemical analysis and if such protocol was not observed, then the consolidated sample drawn from each packet shall represent only one packet of narcotic substance ---Since, no separate sample had been drawn
and consolidated sample of 400 grams had been secured and sent to Forensic Science Laboratory, henceforth, only one kilogram charas could be considered to have been recovered from the accused ---Prosecution had failed to produce the car in question wherefrom the
narcotic substance was recovered, which put a severe dent in the case of the prosecution, making the recovery of narcotic substance cloudy and doubtful ---Circumstances established
that the prosecution failed to prove the indictment ---Appeal against conviction was accordingly
allowed.
Ameer Zeb v. The State PLD 2012 SC 380; Aslam Khan v. State 2021 PCr.LJ 1018;
Ahmed Ali v. The State 2023 SCMR 781 and Abdul Baqi v. State 2020 PCr.LJ 321 rel.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Safe custody of
the recovered substance and its transmission for analysis not proved--- Prosecution case was
that 40- kilograms charas was recovered from the vehicle driven by the accused ---Seizing
Officer and recovery witness did not state that to whom and when they handed over the parcels ---Malkhana Incharge was the prime witness regarding safe custody and transmission of
the charas, who testified that on 24.10.2022, he received parcel No.1 containing 400 grams of samples and parcel No.2 weighing 39600 grams of remaining charas, whereof he made entry in Register No.19 and on 26.10.2022 he handed over back parcel No.1 pertaining to the samples to the Investigating Officer ---During cross -examination, said witness admitted that copy of
register, produced to the Court, was not Register No.19 and there was no mention of entry of deposit and receipt of the case properties ---In view of the statement of the said witness, it
appeared that th e prosecution had failed to prove safe custody from the place of recovery to the
malkhana and onward transmission to the office of Forensic Science Laboratory---None of the protocols were observed while analyzing the suspected material and preparing results thereof, thus no reliance could be placed on such inconclusive Forensic Science Laboratory Report ---
Circumstances established that the prosecution failed to prove the indictment ---Appeal against
conviction was accordingly allowed.
Khairul Bashar v. State 2019 SCMR 930 and State v. Imam Bakhsh 2018 SCMR 2039
rel.
Jam Saka Dashti and Abdul Malik Bugti for Appellant.
Fazal -ur-Rehman for the State.
Date of hearing: 20th June, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Appellant has called in question the veracity
and legality of judgment dated 17- 04-2023 ("impugned judgment") rendered by learned
Additional Sessions Judge -I, CNS Court, Hub ("Trial Court"), whereby the appellant was
convicted under Section 9 (1) 3- E of Control of Narcotic Substances Act, 1997 ("Act of
1997") and sentenced to suffer twenty (20) years R.I with fine of Rs.800,000/ - (rupees eight
hundred thousand) and in default of payment of fine to further undergo one (01) year S.I with
the premium of Section 382 -B of Cr.P.C., emanating from a case vide FIR No.03/CH/2022
(Ex.P/4 -A) registered with Excise Station, Hub.
2. Laconically, on 24- 10-2022 Inspector Excise Ejaz Ali complainant (PW -1) along with
other Excise officials at about 4:30 pm, while acting upon a spy information regarding
narcotics being smuggled to Karachi in huge quantity erected a blockade at main RCD road
near Gaddani cross and intercepted a XLI -Corolla Car bearing Registration No.ATA -620
driven by appellant Imran Munir; on search of the vehicle, 40 packets of baked 'charas' each
weighing 1000 grams, total 40,000 grams were recovered from the secret cavities of the rare seat of the said vehicle, whereof 10 grams from each packets were extracted and put in parcel No.1 for chemical analysis, whereas remaining 'charas' weighing 39600 grams was sealed in parcel No.2, following registration of crime report ibid.
After necessary investigation, the appellant was sent up to the trial Court to face the
deeds of his culpability, where on commencement of the trial, the prosecution in order to drive home the charge produced as many as four witnesses. The appellant was examined under section 342 of Cr.P.C., who denied the allegations and professed innocence. He neither opted to record his statement on oath nor produced any defence witness, thus the trial Court culminated a verdict of guilt, whereby the appellant was convicted and sentenced vide impugned judgment in the terms mentioned in para supra.
3. Heard. Record vetted. The arguments advance by learned counsel for the parties shall
reflect ahead.
4. Ejaz Ali Inspector Excise Seizing Officer (PW- 1), reiterated what he had incorporated
in his murasila (Ex.P/1 -A). Surprisingly, he did not utter a single word in his examination- in-
chief for extracting samples and making parcels of the recovered 40 packets of baked cannabis. He also failed to mention about arrival of the Investigating Officer ("IO") Qaim Ali Inspector (PW -4), regarding preparation of the parcels in question of the narcotics and the
car by him. Recovery witness Attaullah Constable (PW- 2) tes tified in similar lines as
deposed by Seizing Officer (PW -1) regarding recovery of 40 packets of narcotics weighing
40 kgs. He further added, that 10 grams from each packet, total weighing 400 grams were put in parcel No.1, whereas remaining 39660 'charas' was put in parcel No.2, which was secured through recovery memo (Ex.P/2- A). He produced 40 packets of 'charas' as Art.P/2- 3 to
Art.P/2 -42. His deposition manifests that no separate samples were extracted for chemical
analysis rather a consolidated sample i.e parcel No.1 of 40 packets of 'charas' was prepared,
which was subsequently sent to the Director Laboratories and Chemical Examiner to the Government of Sindh, Karachi ("FSL, Karachi"), whereof positive FSL report dated 03.11.2022 (Ex.P/4- C) was received. The apex Court in the case of 'Ameer Zeb v. The State'
(PLD 2012 SC 380), held that from each packet a separate sample must be secured for chemical analysis and if such protocol is not observed, than the consolidated sample drawn from each packet shall represent only one packet of narcotics. Since in this case, no separate
sample has been drawn and consolidated sample of 400 grams have been secured and sent to
FSL, Karachi, henceforth, only one kg 'charas' can be considered to have been recovered from the appellant.
5. So be it, the prosecution has failed to produce the car in question wherefrom the
narcotics were recovered, which puts a severe dent in the case of the prosecution, making the recovery of narcotics cloudy and doubtful. To fortify the above view, we would like to place reliance upon the judgments titled as 'Aslam Khan v. State' (2021 PCrLJ 1018) and 'Muhammad Sajjad v. State' (2023 YLR 408), wherein albeit car was produced but the prosecution failed to produce and get identify the cavity made in the fuel tank and as such the recovery was disbelieved. For ready reference, the relevant portion of 'Aslam Khan's case is reproduced as infra;
"Even during trial the alleged fule tank has not been produced before the court for exhibition of the same in support of prosecution case, so when the fuel tank from which the contraband was recovered has not been produced, then how it could be proved that the contraband was recovered from the same. It is also not mentioned anywhere that how and through which tool, the said fuel tank was opened as according to PW.5 Lal Gul SI, the contraband was in shape of slabs, so how it was recovered from the fuel tank having a small hole.
[Underline is ours]
Likewise, the relevant excerpt of Muhammad Sajjad's case supra is also reproduced
herein below;
"6. Likewise, the patrol -tank from which the illegal stuff was allegedly recovered was
neither produced before the court nor it was exhibited to confirm as to whether it was
having the capacity to contain such a huge quantity of narcotics, which aspect of the
case also makes the story of prosecution doubtful,"
[Emphasis added]
Similarly, the view supra was endorsed too in the cases of 'Ahmed Ali v. The State'
(2023 SCMR 781) and 'Abdul Baqi v. State' (2020 PCrLJ 321).
6. Adverting to the safe custody and transmission, it may be added here that Seizing
Officer (PW -1) and recovery witness (PW -2) did not state that to whom and when they
handed over the parcels. Malkhana Incharge Faisal Iqbal Inspector (PW -3) is the prime
witness regarding safe custody and transmission of the narcotics, who testified that on 24.10.2022, he received parcel No.1 containing 400 grams of samples and parcel No.2 weighing 39600 grams of remaining 'charas', whereof he made entry in Register No.19 (Ex.P/3 -A) and on 26.10.2022 he handed over back parcel No.1 pertaining to the samples to
the IO Qaim Ali Inspector (PW -4). During cross -examination, he admitted that copy of
register (Ex.P/3 -A) is not Register No.19 and there is no mention of entry of deposit and
receipt of the case properties.
In view of the above statements, it appears that the prosecution has failed to prove
safe custody from the place of recovery to the malkhana and onward transmission to the office of FSL, Karachi, which is in contravention of the dicta expounded in the case of 'Khairul Bashar v. State' (2019 SCMR 930).
7. Coming to the FSL report, it may be observed that the same is an inconclusive report
in view of the dicta laid down in the case of 'State v. Imam Bakhsh' (2018 SCMR 2039). The apex Court, while elucidating the word 'protocol' observed that it means an explicit, detail plan of an experiment, procedure or test or a process step by step description of a test, including the list of all necessary reagents and all criteria and procedure for the evaluation of the test data and "Full Protocols" include description of each and every step employed by the Government Analyst through the course of conducting a test.
Likewise, the Supreme Court in the case of 'Qaiser Javed Khan v. The State' (PLD
2020 SC 57) reiterated the dictum ibid and further elaborated that to serve the purpose of the Act and the Rules, the report of the Government Analyst must contain the following;
i) The test applied.
ii) The protocols applied to carry
out these tests.
iii) The result of the test(s).
8. This Court in the case of 'Nasruddin v. State' (2021 YLR 457), while dealing with the
protocols held that every test has protocols, which are internationally recognized and a test
without the observance of its protocols has no sanctity. It was further held that in view of recommendations of the commission under the umbrella of United Nations division of narcotic drugs for numerous drugs separate protocols for test were chalked out and for ascertainment of cannabis Duquenois -Levine test with certain protocols have been
recommended, whereas for ascertainment of opium, morphine and heroin marquis test with particular protocols have been recommended, but in the instant case, none of the above stated protocols were observed while analyzing the suspected material and preparing results thereof, thus no reliance can be placed on such inconclusive FSL report.
9. For what has been discussed hereinabove, we arrived at the conclusion, with no doubt
in our mind that the prosecution failed to prove the indictment.
10. Above are the reasons of our short order dated 20.06.2023, whereby the appeal was
accepted, impugned judgment dated 17.04.2023 passed by the Trial Court was set at naught and acquittal of the appellant was recorded.
JK/64/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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