2019 P Cr.L J 1355
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
ABDUL AHAD---Appellant
Versus
The STATE through Special Prosecutor ANF, Balochistan ---Respondent
Criminal Appeal No. 368 of 2018, decided on 12th March, 2019.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Recovery of narcotic---Appreciation of evidence ---Benefit of doubt ---
Prosecution case was that 200 slabs hashish from boot of the car, driven by accused, was
recovered, each slab was weighin g 500- grams, total weighing 100- Kgs---100 -grams from
each slab was separated for analysis, total weighing 20- Kgs and the same was sealed in a
parcel, while the remaining narcotic was sealed in other parcels ---Record showed that the
prosecution had neither cited the name of the person in the list of witnesses who had taken the narcotic to Forensic Science Laboratory nor he was produced in the Trial Court for recording his statement, which created doubt with regard to the safe custody and safe transmission of the contraband ---Entire recovery of the contraband was effected from the
vehicle/car ---Complainant deposed that at the time of interception, the accused -appellant
owned the vehicle and stated that the said vehicle had still not been transferred in his nam e;
however, while recording statement, the accused -appellant disowned the said vehicle ---
Prosecution ought to have conducted investigation with regard to ownership of the vehicle, but that had not been done and the entire case was silent with regard to the same ---
Registration documents of the vehicle were also not taken into possession---In absence of any such evidence, accused -appellant could not be held responsible for the recovery of
alleged contraband from the vehicle, ownership whereof was disputed ---Appeal was allowed
and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.
Siraj -ud-Din v. The State Criminal Appeal No. 579 of 2017 rel.
(b) Administration of justice ---
----If a specific procedure was provided for doing an act in a specified procedure, such act
was required to be done in that manner, deviation from such procedure would amount to violating the law.
Muhammad Yousaf v. The State 2017 MLD 1471 rel.
(c) Criminal trial ---
----Benefit of doubt ---Principle ---Accused would be entitled to get the benefit of a slightest
doubt.
Muhammad Shabir Rajput for Appellant.
Shams -ud-Din Achakzai, Special Prosecutor, ANF for the State.
Date of hearing: 5th March, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal
No.368/2018 filed by the appellant Abdul Ahad son of Akhtar Muhammad, against the judgment dated 27th November, 2018, (hereinafter referred as, "the impugned judgment") passed by learned Special Judge. CNS Quetta (hereinafter referred as, "the trial Court"),
whereby the appellant was convicted under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred as, "the CNS Act 1997") and sentenced to suffer R.I. for life
imprisonment with fine of R s.200,000/ - (Two Hundred Thousand) or in default thereof to
further suffer S.I. for one (01) year, with the benefit of section 382 -B, Cr.P.C.
2. Facts of the case are that on 7th July 2017 the complainant Muhammad Naseem,
SI/ANF, lodged FIR No.31/2017 at P olice Station RD ANF Balochsitan Quetta, under
section 9(c) of C.N.S. Act, 1997, with the averments that on above date RD ANF Officials
received special information that huge quantity of narcotics is being smuggled from Chaman-
Quetta Road. On this informat ion, he along with ANF officers/officials reached at Jalogir
Moor and at about 03:30 a.m. a Hondai Car bearing registration No. PL -1921 was found
coming from Yaro- Chaman Road, which was signaled to stop, but instead the driver
accelerated the speed of the vehicle, hence through official vehicles the said vehicle was
compelled to stop, in which a person was found sitting, who on query disclosed his name as Abdul Ahad. The search of vehicle was resulted into recovery of 200 slabs Hashish from boot of the Car, each slab was weighing 500- grams, total weighing 100- Kgs. Hence, from the
each slab 100 -grams was separated for analysis total weighing 20 -Kgs and the same was
sealed in parcel No.1, while the remaining narcotics were sealed in parcel Nos.2 to 5.
3. On completion of investigation, challan was submitted in the trial Court, which
indicated the charge to the appellant, who denied the same and during trial the prosecution examined four witnesses, whereafter the appellant was examined under section 342, Cr .P.C.
The appellant also recorded his statement on oath under section 340(2), Cr.P.C., but has not produced any witness in his defence. On conclusion of trial, the appellant was convicted and sentenced as mentioned above in Para No. 1. Whereafter, the inst ant appeal has been filed.
4. Learned counsel for appellant mainly agitated the case of appellant on the strength of
judgment titled "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039) and mainly contended that the prosecut ion has failed to comply with the
Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001
(hereinafter referred as, "the Analysts Rules 2001") and no full protocol was given during the course of applying the test, as such, the report is inconclusive and unreliable, thus cannot be
made basis for awarding conviction to the appellant. It has further been contended that the prosecution has failed to establish the safe custody and safe transmission of contraband to the FSL; that the prosec ution has failed to establish the ownership of the appellant in respect of
vehicle, from which the recovery was effected; that the case of prosecution is doubtful being suffered from legal defects, but the benefit whereof was not extended to the appellant by the trial Court requiring interference of this Court.
5. Learned Serial Prosecutor ANF while supporting the impugned judgment contended
that the prosecution through concrete, solid and independent evidence has succeeded in establishing the charge agains t the appellant besides the analysis report was received in
affirmative and the appellant has also failed to place on record any ill -will or ulterior motives
on the part of prosecution witnesses for his false implication, thus rightly the appellant was convicted and sentenced by the learned trial Court; that the FSL report was not disputed or
denied by the appellant during the trial, thus the same cannot be assailed at this appellate stage.
6. Heard the learned counsel and perused the available record. In o rder to establish the
charge, the prosecution has produced the evidence of four witnesses, perusal of such statements depicts the fact that absolutely it is a doubtful case being suffered from legal defects. The complainant of the case Muhammad Naseem, SI/ RD ANF appeared as PW- 1,
who mostly reiterated the contents of fard- e-bayan Ex.P/1- A. PW -2 Muhammad Ishfaq,
Constable was the member of raiding party as well as recovery witness of the contraband.
PW-3 Muhammad Shabir Constable, ANF, on receipt of complaint recorded the FIR and
further confirmed that he handed over the samples of 20- Kgs to Constable Naeem Abbasi,
for its analysis from FSL. PW -4 Sahood Farooq, is the Investigating Officer of the case, who
counted the steps taken by him during the course of i nvestigation.
7. It has further been noted that the learned counsel for appellant has referred the above
cited judgment (2018 SCMR 2039) by raising objections that the FSL report is inconclusive and unreliable as the prosecution has failed to comply with t he Rule 6 of the Analyst Rules
2001, hence while dilating upon such objection; sections 34 to 36 of the C.N.S. Act, 1997 were perused, which provide for Narcotics Testing Laboratories, the Test Reports of the Government Analyst and their evidentiary value. Section 36 mandates that the Government
Analyst after carrying out tests and analysis of sample of any narcotic drug or psychotropic or controlled substance shall deliver the report prescribed under the Rules. The report under section 36(2) enjoys the benefit of being admissible as evidence of the facts stated herein without formal proof and such evidence unless rebutted, is conclusive. Credible testing and analysis of the alleged drug is fundamental to actualizing the provisions of the Act as it determine s the true nature of the recovered substance or the seized drug. Section 36(2)
underlines the importance of such test Report. Report of the Government Analyst, is therefore, pivotal in realizing the objective and purpose of the Act.
8. While Rule 6 stands on a different statutory footing, which provides that the report of
the Government Analyst, after the test and analysis, is to furnish the result together with full protocol of the test applied. The accuracy of test and analysis and the correct application of
the full protocols alone can determine if the recovered substance is a narcotic drug or a psychotropic or controlled substance and non- compliance of such rule the report of Chemical
Analyst in a case would lose its evidentiary value being inconclusive and unreliable. The
Hon'ble Supreme Court of Pakistan in the above referred judgment of Imam Bakhsh and others (supra) has held as under:
"16. Non- compliance of Rule 6 can frustrate the purpose and object of the Act, i.e.
control of production, processing and trafficking of narcotic drugs and psychotropic
substances, as conviction cannot be sustained on a Report that is inconclusive or unreliable. The evidentiary assumption attached to a Report of the Government Analyst under section 36(2) of the Act under lines the statutory significance of the
Report, therefore details of the test and analysis in the shape of the protocols applied for the test become fundamental and go to the root of the statutory scheme. Rule 6 is, therefore, in the public interest and sa feguards the rights of the parties. Any Report
(Form -II) failing to give details of the full protocols of the test applied will be
inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a Report of t he Government Analyst under section
36(2). Resultantly, it will hopelessly fail to support conviction of the accused. This Court has already emphasized the importance of protocols in Ikramullah's case (supra).
17. Rule 6 also requires the issuance of quadruplicate copies of the Report and the requirement of two signatures on the Report of the Government Analyst in Form -II.
Section 36 states that the Report shall be signed by the Government Analyst only. Therefore the requirement of two signatures and the i ssuance of quadruplicate copies,
are at best, a good practice, but are merely directory provisions, as their non-
compliance does not offend the Act. At this stage it is important to point out that this
Court, in a series of judgments, has considered the sc ope of Rule 4(2) of the Rules,
which provides that the samples be dispatched to the Government Analyst not later than 72 hours of its seizure and has held it to be a directory provision. Reliance is placed on Muhammad Sarfraz v. State (2017 SCMR 1874), Gul Alam v. The State
(2011 SCMR 624) and Tariq Mehmood v. The State (PLD 2009 SC 39). In Taimoor
Khan v. State (2016 SCMR 621) this Court has additionally held that Rules 3, 4 and 6
are mandatory. Deeper examination of this judgment reveals that reference was only being made to Rule 4(1), whereas, Rule 4(2) was not discussed, separately. This understanding falls in line with the consistent view of this Court regarding Rule 4(2) as referred to above.
18. It is important to underline that even if a rule is dir ectory, its substantial
compliance as opposed to strict compliance is required. Non -compliance of such a
rule might not invalidate the act but as it provides a legislative process based on public interest, transparency and good governance, its substantial compliance is
necessary.
Directions to the Federal and Provincial Governments
19. Efficient, credible and proficient Narcotics Testing Laboratories are integral for successful execution of the Act and the Rules. The said laboratories have to be manned by competent analysts having prescribed qualifications. Rule 3 provides for
the qualifications of a Government Analyst and it has already been held to be a mandatory provision by this Court. Further, the obligations of the Government Analysts under these Rul es must be complied with for ensuring accurate and
meaningful chemical analysis. In order to standardize the Narcotics Testing Laboratories across the country, the protocols and tests applied by these laboratories
must meet common international standards, e.g. Guidelines issued by the United
Nations Office on Drugs and Crime (UNODC) or Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG) or the International Organization for Standardization (ISO) - 17025:2017. We, therefore, direct the Federa l Government
and the respective Provincial Governments to ensure that the Government Analysts in the Narcotics Testing Laboratories are qualified as per Rule 3, the tests and their protocols are common across the country are as per International guidelines . The
officials of the National and Provincial Narcotics Testing Laboratories shall follow the Rules in the best manner possible so that efficient and meaningful chemical analysis can be achieved. In case of failure, disciplinary action be taken against th e
officials, in accordance with law.
20. We conclude that Rule 5 of the Rules is directory while Rule 6 is mandatory to the extent that the full protocols ought to be mentioned in the Report of the Government Analyst. Non- compliance of Rule 6, in this context, will render the Report of the
Government Analyst inconclusive and unreliable. The representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory." [BOLD ADDED]
9. So far as the objection raised by the learned counsel for appellant with regard to save
custody and safe transmission of the narcotics to FSL is concerned, suffice to observe here that the prosecution has neither cited the name of the actual person in the list of witnesses, who had taken the narcotics to FSL nor he was produced in the trial Court for recording his
statement, which creates doubt with regard to the safe custody and safe transmission of the
contraband to the FSL, as such, the safe custody and safe transmission of the contraband was not proved. Reliance in this regard is placed on the judgment dated 29th October 2018 passed by Hon'ble Supreme Court in Criminal Appeal No.579 of 2017, titled as Siraj -ud-Din v. The
State. For facilitation the relev ant portion is reproduced hereunder:
"According to the prosecution different types of narcotic substances had been recovered in this case which were contained in different packets stored in different sacks. The recovery witness namely Sepoy Zain- ul-Haq (P W2) and the investigating
officer namely Inayat Ullah Sheikh (PW- 3) had stated before the trial court in so
many words that they did not know how many packets were contained in every sack recovered in this case. The sacks allegedly recovered in this case w ere opened before
the trial court during the trial and the trial court had found that the said sacks were not sealed. Safe custody of the recovered substances had not been proved in this case inasmuch as according to the prosecution the recovered substance s were kept for safe
custody in a warehouse but nobody from the said warehouse had been produced before the trial court in order to vouch for safe custody of the recovered substances. Even safe transmission of the samples of the recovered substances had no t been
proved in this case. According to the report of the Forensic Science Laboratory the samples had been brought to the Forensic Science Laboratory by one Sagheer Ahmed but no person by the name of Sagheer Ahmed had been produced before the trial court so as to confirm that the samples had remained in his custody quite safe while transmitting the said samples to the Forensic Science Laboratory. As if this were not enough the protocols of the tests applied on the samples of the recovered substances had not been mentioned in the report of the Forensic Science Laboratory brought on the record of the trial court."
10. It has further been observed that the entire recovery of the contraband was effected
from the vehicle/Car Hundai bearing registration No.PL -1921. According to the PW -1 at the
time of intercepting, the appellant owned the vehicle and stated that the said vehicle has still not been transferred in his name. However, whilst recording his oath statement, the appellant disowned the said vehicle. Be tha t as it may, the prosecution ought of have conducted
investigation with regard to ownership of the vehicle, but this has not been done so and the entire case is silent with regard to the same. The registration documents of the same were also not taken into possession. Hence, in absence of any sort of evidence, the appellant
cannot be held responsible for the recovery of alleged contraband from the vehicle, ownership whereof is disputed.
11. It has further been observed that the Hon'ble Supreme Court is the apex judicial forum
of the State and it had to interpret the law while hearing appeals from judgments of the High Court and the subordinate judiciary, hence Article 189 of the Constitution of Islamic Republic of Pakistan the decisions of Hon'ble Supreme Co urt of Pakistan are binding on all
Courts of Pakistan and the subordinate Courts are required to give utmost respect, regard and consideration to the judgment, in which the principle of law was enunciated. The jurisdiction of the Supreme Court under consti tutional provisions was not just to decide the question of
law, but the same also extended to enunciate the principles of law, which decisions and principles of law were binding on all organs of the State. Admittedly, all the principles, guidelines and str ategies enunciated by the Hon'ble apex Court are binding upon all the
subordinate Courts. Reliance in this regard is placed on the case of Ashiq Hussain alias
Muhammad Ashraf v. The State, PLD 1994 S.C. 879, which speaks as under:
"By this judgment we intend to strike a note of warning to the subordinate Courts in
the country that they are legally bound to follow the principles of law enunciated by the Supreme Court and if they do not follow it then serious view of the matter can be taken again the delinqu ent as and when the misconduct comes or is brought to the
notice of this Court."
12. It is well settled proposition of law that when a specific procedure is provided for a
doing an act in a specified procedure, thus such act is required to be done in that manner,
deviation from such procure would amount to violating the law. Reliance in this regard is placed on the case of Muhammad Yousaf v. The State, 2017 MLD 1471 (Balochsitan), which provides that, "The burden on prosecution to prove its case cannot be s hifted 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."
13. The discrepancies so pointed out by the learned counsel for the a ppellant cannot be
taken lightly. It is a well settled principle of law that an accused is entitled to get the benefit of a slightest doubt, whereas in the instant case certain discrepancies and doubts are apparent on the face of record, but the trial Cour t while delivering the impugned judgment has failed
to extend the benefits of such doubts in favour of the appellants.
For the above reasons, the appeal is accepted. The impugned judgment dated 27th
November 2018 passed by learned Special Judge, CNS Quett a is set aside and the appellant
Abdul Ahad son of Akhtar Muhammad, is acquitted of the charge under section 9(c) of the C.N.S. Act, 1997 in case FIR No.31/2017 of Police Station RD/ANF Balochistan Quetta. The appellant being in custody, is ordered to be r eleased forthwith, if not required in any other
case.
JK/19/Bal. Appeal accepted.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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