P L D 2019 Balochistan 96
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
ABDUL WAJID ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.40 of 2019, decided on 22nd June, 2019.
(a) Control of Narcotic Substances Act (XXV of 1997 )---
----S. 9---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---
Possessing and trafficking narcotic ---Delay in despatch of sample for test or analysis ---Safe
custody of narcotic, not proved ---Effect ---Accused was charged for posses sion and
transportation of charas weighing 45 kgs ---Sample of recovered contraband were drawn and
sealed in parcels on the same day ---Samples ought to have been received in Forensic Science
Laboratory (FSL) within 72 hours of the seizure as required by R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, but perusal of examination reports revealed that the samples were received by FSL on eighth day of its recovery---Nothing was available on record to establish that during the int ervening period contraband remained in
safe custody or that it was altered, manipulated, changed or replaced, thus the delay so occasioned in sending the samples to FSL had rendered the analysis report to be doubtful ---
Appeal was allowed and judgment passe d by Trial Court was set aside.
(b) Control of Narcotic Substances Act (XXV of 1908)---
----S. 9--- Possessing and trafficking narcotic--- Non-production of messenger ---Safe custody,
not proved--- Effect --- Forensic Science Labortory's (FSL) report reflected that the samples
were handed over to a LNK (Lance Naik) for onward transmission to FSL for analysis ---
Name of said person was neither cited in the calendar of witnesses nor he was produced in the Trial Court to prove as to when the samples were delivered t o him for transmission to
FSL and during the intervening period whether the same were in the safe custody and its transmission to FSL was safe ---Safe custody of the contraband in the malkhana of the
relevant police station or safe transmission of samples f rom the local police station to the
office of the Chemical Examination was not proved by the prosecution ---Appeal was allowed
and judgment passed by Trial Court was set aside.
State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039;
Ikramullah and others v. the State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR
577 ref.
(c) Control of Narcotic Substances (Government Analysts) Rules, 2001 ---
----Rr. 5 & 6 ---Control of Narcotic Substances Act (XXV of 1997), Ss.36 & 9--- Possessing
and trafficking narcotic--- Report of government analyst ---Report of result of test or analysis -
--Scope ---Accused was charged for possession and transporting of charas weighing 45 kgs ---
Forensic Science Laboratory's (FSL) report was in violation of S. 36, C ontrol of Narcotic
Substances Act, 1997 and Rr. 5 & 6 of Control of Narcotic Substances (Government
Analysts) Rules, 2001 as the same bore only one signature of the Federal Government Analyst, while S.36 of the Act and Rr. 5 & 6 prescribed Form II, which s tipulated the
signatures of two authorized officers of the Laboratory--- Report was silent about the
necessary protocols, the test applied and the result ---Neither any protocol was mentioned in
the report nor any test was referred to on the basis whereof the Chemical Expert had concluded that the samples sent for examination contained charas and crystal ---Appeal was
allowed and judgment passed by Trial Court was set aside.
Khair -ul-Bashar v. the State 2019 SCMR 930 rel.
(d) Control of Narcotic Substances Ac t (XXV of 1997) ---
----S. 9 ---Possessing and trafficking narcotic ---Safe custody ---Scope ---Where safe custody of
the recovered substance or safe transmission of samples of the recovered substance is not
proved by the prosecution through any independent evi dence, it cannot be presumed with any
degree of confidence that the prosecution has succeeded in proving its case against the
accused beyond the shadow of reasonable doubt.
Siraj -ud-Din v. The State Criminal Appeal No.579 of 2017 rel.
(e) Criminal trial ---
----Procedure--- Scope ---When a specific method is provided for doing any legal act in a
specified procedure, such act is 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.
Sultan Khalid for Appellant.
Nadeem Akhtar, Assistant Attorney General for the State.
JUDGMENT
ABDULLAH BALOCH, J. --This judgment disposes of Criminal Appeal No.40/2019
filed by the appellant Abdul Wajid son of Abdul Ali, against the judgment dated 6th February 2019 (hereinafter referred as, "the impugned judgment") passed by learned Special Judge, CNS, Lasbella at Hub (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 with fine of
Rs.100,000/ - or in default thereof to further suffer six (06) months' S.I., with the benefit of
Section 382 -B, Cr.P.C., while co -accused Shams -ud-Din son of Syed Abdul Razzaq was
acquitted of the charge.
2. Facts of the case are that on 19th March 2018, the complainant Shakeel Ahmed,
Pakistan Coast Guards Uthal lodged FIR No.31 of 2018 at Police Station Coast Guard Uthal District Lasbella, under Section 9(c) of CNS Act, 1997, with the averments that on the day of occurrence at about 12.15 a.m. during course of checking of passenger at Naka Khadari Check Post of Pakistan Coast Guards Uthal a car bearing registration No.BEZ -922 driven by
appellant Abdul Wajid son of Abdul Ali accompanied by acquitted accused Shams -ud-Din
son of Syed Abdul Razzaq, was stopped for checking purposes and the search of the Car was resulted into recovery of 45.050 Kgs Charas consisting upon 37 packets. Hence, samples of 30/30- grams each were drawn from each packet and sealed in parcels.
3. After completion of investigation and on receipt of challa n, the trial Court indicated
the charge to the appellant and the acquitted accused, who denied the same and during trial the prosecution examined three witnesses, whereafter the appellant was examined under Section 342 Cr.P.C. The appellant recorded his st atement on oath under Section 340(2)
Cr.P.C. and produced two witnesses in his defence namely DW -1 Haji Muhammad and DW -
2 Faizullah, while the accused Shams -ud-Din neither recorded his statement on oath nor
produced any witness in his defence. On conclusio n of trial, the appellant was convicted and
sentenced as mentioned above in Para No.1, while co -accused Shams -ud-Din was acquitted
of the charge. Whereafter, the appellant has filed the instant appeal.
4. Heard the learned counsel for parties and perused t he available record. Without
adverting to the other material aspects of the case, it is necessary to mention here that the FSL report Ex.P/3- B is legally defective and not admissible under the law. Firstly, the
recovery of contraband was effected on 19th M arch 2018 and the samples were drawn on the
said date and sealed in parcels, thus the samples ought to have been received in FSL, within 72 hours of the seizure as required by Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, but perusal of Examination Reports Ex.P/3- B reflects
that the same were received to FSL on 26th March 2018 i.e. on the eighth day of its recovery. The Investigating Officer has failed to tender any plausible explanation for delay in sending the samples for analysis. There is nothing on record establishing that during the intervening period in whose custody, the contraband was remained and question arises that whether the same were in safe custody or that the same were altered, manipulated, changed or rep laced,
thus the delay so occasioned in sending the samples to FSL has rendered the analysis report as doubtful.
5. The perusal of FSL report Ex.P/3- B further reflects that the samples were handed over
to one Yasir, LNK, for its onwards transmission to FSL for analysis. The name of the said person has neither cited in the calendar of witnesses nor he was produced in the trial Court in order to ascertain that when the samples were delivered to him for its onwards transmission to FSL and during the intervening period whether the same were in the safe custody and its
transmission to FSL was safe, as such, the safe custody of the contraband in the Malkhana of
the relevant Police Station or safe transmission of samples of the recovered contraband from
the local Po lice Station to the office of the Chemical Examination had not been proved by the
prosecution in this case. The Hon'ble Supreme Court has already held in the cases of State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramulla h
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 any independent evidence,
it cannot be presumed with any degree of confidence that the prosecution had succeeded in proving its case against the appellant beyond the shadow of reasonable doubt, as such, the safe custody and safe transmission of the contraband was n ot proved. Reliance in this regard
is placed on the judgement 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
relevant 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 (PW2) 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 were 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 substances were kept for safe custody in a wareho use 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 not 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 r emained 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."
6. Similarly, the FSL report Ex.P/3 -B issued by the FSL is in violation of Section 36 of
the CNS Act, 1997 and Rules 5 and 6 of the Control of Narcotic Substances (Government Analyst) R ules 2001 ("Rules"), as the same bears only one signature of the Federal
Government Analyst, while Section 36 of the Act and the Rules 5 and 6 of the Rules of 2001 prescribes Form -II, which stipulates the signatures of two authorized officers of the
Labora tory. The report is silent about the necessary protocols, the test applied and the result.
Neither any protocol mentioned in the report nor any test was referred to on the basis whereof the Chemical Expert has concluded that the samples sent for examination contained Charas and Crystal. While holding this view we are fortified from the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case titled as Khair -ul-Bashar v. the State
(2019 SCMR 930), wherein it was held as under: --
"10. In the pre sent case examination of the report of the Government Analyst
mentions the tests applied but does not provide their results except a concluding
result, presumably of all the tests, which is not sufficient. The Report also does not signify the test protocol s that were applied to carry out these tests. Hence, the
mandatory requirement of law provided under Rule 6 has not been complied with and, thus, it is not safe to rely on the Report of the Government Analyst dated 18- 02-2016.
As a conclusion, it is reiter ated, that the Report of the Government Analyst must
mention (i) all the tests and analysis of the alleged drug (ii) the result of the each test(s) carried out along with the consolidated result and (iii) the name of all the protocols applied to carry out these tests.
7. Admittedly, all the ingredients, guidelines and directions given by the Hon'ble
Supreme Court with regard to safe custody of the recovered contraband and its safe transmission from the Police Station to the office of Forensic Science Laboratory as well as the procedure so adopted by the Examiners for carrying out the analysis are missing and it appears that initially from the date of the recovery of the contraband till its examination by the Examiner the prescribed procedure and method has been violated. It is well settled proposition of law that when a specific method is provided for doing any legal act in a
specified procedure, thus such act is required to be done in that manner, deviation from such
procedure would amount to violating the l aw. 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 shifted 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."
8. For the above reasons, the appeal is allowed and the impugned judgement dated 6th
February 2019 passed by learned Special Judge, CNS, Lasbella at Hub is set aside. While,
extending benefit of doubt the appellant Abdul Wajid son of Abdul Ali is acquitted of the charge. The appellant being in custody is ordered to be released forthwith, if not required in any other case.
Above are the reasons of our short order dated 19th June, 2019.
SA/42/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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