2020 P Cr. L J 264
[Balochistan]
Before Abdul Hameed Baloch, J
GHULAM MUHAMMAD and another---Appellants
Versus
The STATE--- Respondent
Criminal Appeals Nos. 263 and 266 of 2019, decided on 20th August, 2019.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---
Possession of narcotics ---Report of Government Analyst ---Appreciation of evidence ---
Benefit of doubt ---Complainant lodged FIR alleging therein that he along wit h other Levies
Personnel made a blockade meanwhile a motorcycle boarded by the accused persons was
intercepted and three packets of charas from right side and two packets from left side of the motorcycle were recovered ---Failure to mention full protocols of tests applied ---Effect ---
Non-production of person who delivered sample to the Government Analyst ---Effect ---Safe
transmission/Safe custody ---Scope ---Report of Government Analyst was not in accordance
with R. 6 of the Control of Narcotic Substances (Gover nment Analysts) Rules, 2001, which
was mandatory in nature ---Report in question had no evidentiary value ---Investigating
Officer had stated that the samples of the contraband were sent to the Government Analyst through process -server but the said process -server was not produced before the Trial Court to
prove the safe transmission of contraband from the custody of the Levies to the Government Analyst, which act on the part of the prosecution created serious doubts in the whole prosecution's case--- Appeals w ere allowed, in circumstances.
State v. Imam Bakhsh 2018 SCMR 2039 and Razia Sultana v. State 2019 SCMR 1300
rel.
Ishaque Alizai for Appellant (in Criminal Appeal No. 263 of 2019).
Jamal Khan Lashari and Abdul Aziz Sumalani for Appellant (in Criminal A ppeal No.
266 of 2019).
Abdul Latif Kakar, Additional Prosecutor General for the State (in both cases).
Date of hearing: 9th August, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---Through this common judgment we intend to
dispose of both the referred appeals as both are arising out of the same FIR and judgment
dated 24.07.2019 (impugned judgment) passed by the Sessions Judge/Special Judge CNS Mastung (trial Court), whereby both the appellants were convicted under section 9(c) of the Control of Narcotic Substan ces Act, 1997 ("the Act") and sentenced to suffer Rigorous
Imprisonment (RI) for eight years with fine of Rs.20000/ - (Rupees twenty thousand) each, in
default whereof further directed to undergo two months Simple Imprisonment (SI) each with benefit of sect ion 382 -B of Criminal Procedure Code, ("Cr.P.C.").
2. Brief facts leading to file the instant appeal are that on 20.05.2018 complainant
Sameeullah (constable) lodged an FIR No. 12/2019, with Levies Thana Wali Khan Mastung, alleging therein that on the stated date and time on the direction of Assistant Commissioner he along with other levies personnel made a blockade at main RCD Road Saeed Abad Area. Meanwhile at about 1:15 a.m., a motorcycle bearing Registration No.MF -4102 coming from
Mastung boarded by the appellants was intercepted. On search three packets charas from
right side and two packets from left side of the Khurgin of motorcycle were recovered. On weighing four packets, each packets contained one kilogram while the rest one packet contained 500 gr ams, which were taken into possession vide recovery memos.
3. After completion of investigation the challan was submitted before the trial 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 examined under section 342, Cr.P.C. wherein they once again professed their innocence. The appellants did not record their s tatements on oath as envisaged under section 340(2), Cr.P.C., however the
appellant Tariq Aziz produced one Nadir Ali in his defence. On conclusion of the trial the
appellants were convicted in the aforesaid terms. Hence this appeal.
4. Learned counsel for the appellants 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 because 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 consolidated judgment dated 03.10.2018 passed by Hon'ble Supreme Court in Criminal Appeals Nos.523, 524 and 525 of 2017.
5. Conversely, l earned DPG defended the impugned judgment on the ground that the
appellants were apprehended when they were carrying the narcotics by a motorcycle; 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 the levies officials during checking at main RCD Road Saeed Abad Area, intercepted a motorcycle bearing Registrati on No.MF -
4102 boarded by the appellants was intercepted and the mentioned above charas were recovered from the Khurgin of motorcycle.
7. It may be observed that the Test/Analyst Report i.e. Ex- P/4-D, issued by the Federal
Narcotics Testing Laboratory, Fore nsic Science Laboratory Crimes Branch Balochistan,
Quetta is not in accordance with Rule 6 of the Narcotics Substances (Government Analysts)
Rules. 2001 (Rules), which is mandatory in nature. The report in question has no evidentiary value in view of the l aw declared by the Hon'ble Supreme Court of Pakistan in the case titled
as "State v. Imam Bakhsh" 2018 SCMR 2039, wherein it has been held as under:
"15. Rule 6 on the other hand stands on a different statutory footing. It provides that the Report of the Government Analyst, after the test and analysis, is to furnish the result together with full protocols 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 i s a narcotic drug or a psychotropic or controlled substance.
"Protocol" means an explicit, detailed plan of an experiment, procedure or test or a precise step -by-step description of a test, including the listing of all necessary
reagents and all criteria and procedures for the evaluation of data. Rule 6 requires that 10 protocols of the test applied be part of the Report of the Government Analyst, Every test has its protocols, which are internationally recognized and a test without the observance of its protocols has no sanctity. "Full Protocols" include a description of each and every step employed by the Government Analyst through the course of conducting a test. Hence, the Report under Rule 6 must specify every test applied for the determination of the se ized substances with full protocols adopted to conduct such
tests.
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 convi ction 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 underlines 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 safeguards 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 the Government Analyst under section 36(2). Resultantly, it will hopeless ly fail to support conviction of the accused. This
Court has already emphasized the importance of protocols in Ikramullah's case (supra)."
8. According to statement of PW -4 (Investigating Officer) the samples of the
contrabands were sent to the Government Analyst for examination through one Nasir
Process -Server, but the said Nasir was not produced before the trial court to prove the safe
transmission of the contraband from the custody of the levies to the chemical analyst, which act on the part of the prose cution creates 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 Razia Sultana v. State 2019 SCMR 1300, wherein it has been held as under:
"2. At the very outset, we have noticed that the sample of the narcotics drugs was
dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to pr ove safe transmission of the drug from the Police to the chemical examiner. The
chain of custody stands compromised as a result it would be unsafe to rely on the repot of the chemical examiner. This court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner losses reliability making it unsafe to support conviction."
10. For the foregoing reasons, we are of the considered opinion that to the extent of
absence of full protocols to the tests applied, there wa s non- compliance of rule 6 of the
Rules. Further the safe transmission of the alleged seized contraband was also not established.
For the above stated reasons, vide separate short orders even dated 09.08.2019 both
the Criminal Appeals Nos.263 and 266 of 2 019 were allowed. The impugned judgment dated
24.7.2019 passed by Sessions Judge/Special Judge CNS Mastung, in CNS Case No.03 of 2019 was set -aside and while extending benefit of doubt, the appellants Ghulam Muhammad
son of Allah Bakhsh and Tariq Aziz son of Yar Muhammad were acquitted of the charge under section 9(c) of the Control of Narcotic Substances Act, 1997 in FIR No.12/2019 Levies Thana Wali Khan Mastung. The appellants being in custody were ordered to be released forthwith, if not required in any other case.
The above discussion shall be the reasons to the earlier order announced in open
court.
SA/83/Bal. Appeals 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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