2023 Y L R 2388
[Balochistan]
Before Abdullah Baloch and Iqbal Ahmed Kasi, JJ
MUHAMMAD HANIF ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 223 of 2022, decided on 17th April, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence--- Benefit of doubt ---Safe
custody of sample parcels ---Contradictory statements ---Prosecution case was that 27
kilograms charas was recovered from the vehicle driven by accused ---Record showed that
parcel containing the alleged recovered narcotics was produced before the Trial Court, which
had different signatures of recovery witness compared to disclosure memo of the accused, recovery memo of the vehicle and recovery memo of alleged contraband material and search memo ---Said fact was enough to create serious doubt about the safe custody of the parcel ---
Furthermore, the Mashir of recovery stated that all the parcels were prepared of white cloth, while he admitted that today no parcel of cloth was produced in the Court, and voluntarily
stated that the Investigating Officer would produce the same ---Notable that recovery witness
in his examination in chief deposed that, on search of the vehicle, 07 packets of contraband material were recovered beneath the driving seat and 13 packets were recovered from the trunk of the car, underneath the spare wheel, which contradicted the contents of the FIR ---
Complainant, during his cross -examination stated that as per law the police of concerned
police station should be taken into confidence prior to initiation of any proceedings ---
Admittedly, complainant did not get information about the police station in jurisdiction of which occurrence took place---Admittedly, the Investigating Officer did not reach at the place of occurrence--- Mohrar stated that the sealed parcels were handed over to him by
Investigating Officer which showed that the parcels were brought to ANF Police Station and thereafter handed over to the Mohrar, thus, creating serious doubt in the safe custody of the alleged recovered contraband material, whereas, in the trial, it was essential for the prosecution to establish its case through cogent and convincing evidence ---Alleged
contraband was seized from the possession of accused and was kept in safe custody in the malkhana at Police Station and thereafter the representative samples were safely transmitted to the Office of the Chemical Examiner for analysis, and it was evident that the needful was not done in its required manner ---Sample/contraband so deposited in the Office of Narcotic
Testing Laboratory could not be tagged with the seized substance allegedly recovered from possession of the accused in absence of evidence of its safe custody---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt ---Appeal against conviction was allowed accordingly.
(b) Criminal trial ---
----Benefit of doubt ---Principle ---If there is a single circumstance which creates a reasonable
doubt regarding the prosecution case, the same would be sufficient to give benefit of the
same to accused.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotics---Appreciation of evidence ---Benefit of doubt ---Non -
production of relevant register maintained by Police ---Effect ---Prosecution case was that 27
kilograms charas was recovered from the vehicle driven by accused ---Perusal of case file
revealed that per recovery memo, the parcel of alleged contraband was prepared at the spot
which as per the statement of Investigating Officer, he handed over the same to the Moharar,
who accordingly made an inventory in Register No. 19, and kept the same in store room
(malkhana), however, said Moharar support of his statement did not produce Register No. 19,
which maintained the relevant entries with regard to receiving the parcel, registering the
same in register and placing the parcel in malkhana and thereafter handing over the same to
the Investigating Officer for its onward transmission to the Narcotic Testing Laboratory---Though the in- charge of Malkhana had categorically stated about the process, however, in
order to prove the process, it would have been more helpful for the prosecution to have produced the Register No. 19 in support of their case, which was otherwise directory in nature and not mandatory---Circumstances established that the prosecution had failed to
prove its case against the accused beyond reasonable shadow of doubt ---Appeal against
conviction was allowed accordingly.
(d) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of narcotics---Appreciation of evidence ---Benefit of doubt ---Non -
association of private mashir from the area ---Effect ---Prosecution case was that 27 kilograms
charas was recovered from the vehicle driven by accused ---Record showed that complainant
raided the alleged place of occurrence on a spy information, but he failed to associate any
respectable mushir from the area---Alleged place of occurrence was thickly populated area and situated on main road---Record further revealed that at the time of alleged recovery there were many passersby, but no one was made a mushir ---Only explanation given by the
prosecution was that no one was ready to be associated as a mushir, which did not appear to be a convincing reason--- Circumstances established that the prosecution had failed to prove
its case against the accused beyond reasonable shadow of doubt ---Appeal against conviction
was allowed accordingly.
(e) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---
Possession of narcotics ---Appreciation of evidence ---Prosecution case was that 27 kilograms
charas was recovered from the vehicle driven by accused ---Record showed that the
Government Analyst of the Narcotics Laboratory, while preparing the reports, had not complied with the mandatory provisions of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001---If the said provisions had not been complied with, the
report of Government Analyst due in consequence of Rule 6 lost its reliability and evidentiary value ---Non -compliance of Rule 6 and absence of any of the enumerated
mandatory elements/ requirements frustrated the purpose and object of the Control of
Narcotic Substances Act, 1997--- Circumstances established that the prosecution had failed to
prove its case against the accused beyond reasonable shadow of doubt ---Appeal against
conviction was allowed accordingly.
Khair ul Bashar v. The State 2019 SCMR 930 and The State through Regional
Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.
Naseebullah Tareen and Abdul Sadiq Khan Khilji for Appellant,
Habib -ur-Rehman, Special Prosecutor ANF and Miss. Zahida Kanwal for the State.
Date of hearing: 27th March, 2023.
JUDGMENT
IQBAL AHMED KASI, J. ---The appellant Muhammad Hanif son of Muhammad
Ayub, was arrested pursuant to FIR No. 14 of 2020, dated 30.06.2020, under Section 9(c) of the Control of Narcotic Substances Act, 1997 ( "the Act of 1997"), with Police Station Anti -
Narcotic Force (ANF) Quetta, with the allegation of possessing charas/garda, weighing 27 kilograms.
2. The facts of the case, arising out of the instant appeal are that on the report of
complainant Haider Ali, IP, the FIR was registered, wherein, he alleged that on 30.06.2022,
he received spy information that Muhammad Hanif is handing over narcotics to his customer
in his car bearing Registration No.ALT -434, at Bosta Madni Bypass. At about 09:30 p.m. the
accused was apprehended and on his disclosure and pointation 7 packets charas garda
beneath the driving seat, 7 packets charas garda beneath front seat and 13 packets from the trunk, total 27 kilograms were recovered. Consequently, the FIR was registered.
3. After denial of the charge, the prosecution examined PW -1, Imam Bakhsh, Constable,
is the mashir of recovery and produced disclosure memo Ex.P/1- A, recovery memo of
Toyota Platz Car bearing Registration No.ALT -434 Ex.P/1- B, recovery memo of contra -band
material Ex.P/1 -C, recovery memo of personal search Ex.P/1- D and also produced the
recovered articles from Art.P/1 to Art.P/3 and Art.P/4 to Art.P/8 and Art.P/9. PW -2 Haider Ali,
Inspector, is the complainant of the case and produced marashilla Ex.P/2 -A. PW -3 Muhammad
Ramzan, ASI, is the Mohrar. PW -4 Ibrar Hussain, Constable/Driver, PW -5 Rana Kashif Jave,
IP, Investigating Officer, who produced FIR Ex.P/5- A, memo of receipt of handing over
accused Ex.P/5 -B, letter to FGA Ex.P/5 -C, site plan Ex.P/5- D, letter sent for provision of
vehicle record Ex.P/5- E and Ex.P/5- F and analysis reports Ex.P/5- G to Ex.P/5- KK and
incomplete challan Ex.P/5- LL.
4. When examined under Section 342 Cr.P.C., the appellant once again denied the
allegations of the prosecution. He neither recorded his statement under Section 340(2), Cr.P.C., nor produced any witness in his defence.
5. After trial, the learned Judge Special Court (CNS) Balochistan, Quetta ("the trial
Court") vide judgment dated 28.04.2022 ("the impugned judgment") convicted the appellant
under Section 9(c) of the Act of 1997, and sentenced him to suffer life imprisonment and to
pay a fine of Rs.200,000/ - (rupees two hundred thousand only), in default whereof he was
further ordered to undergo one (01) year SI, with benefit of Section 382 -B, Cr.P.C.
6. Learned counsel for the appellant contended that the case of the prosecution is false
and fabricated; that the evidence available on record was not appreciated in its true
perspective and undue weight was given to the prosecution side; that there are material
improvements and contradictions in the statements of prosecution witnesses; that the testimony of the prosecution witnesses makes the case of prosecution doubtful, which benefit should have gone in favour of the appellant; that the evidence produced by the prosecution is
not in chain, whereas, the custody and safe transmission of narcotic substance is also not
proved; that the prosecution has failed to establish the case against the appellant beyond the shadow of doubt, thus, the impugned judgment of the trial Court is bad in eyes of law and
liable to be set aside.
7. The learned State Counsel, in rebuttal submitted that recovery of huge quantity of
contraband material, weighing 27 kilograms from the possession of the appellant was proved
by the prosecution, through confidence inspiring and reliable evidence; that the positive FSL reports, further affirmed that the substance recovered from the possession of the appellant was charas; that no motive or malice has been alleged against the prosecution witnesses to discard their statements, therefore, the impugned judgment is liable to be sustained.
8. We have heard the learned counsel for the parties and have gone through the record of
the case. From the testimony produced by the prosecution through its witnesses it has been observed that parcel No.28 containing the alleged recovered narcotics was produced before the trial Court, which was having different signatures of PW -1 compared to disclosure memo
of the appellant, recovery memo of Toyota case bearing Registration No. ALT -434 and
recovery memo of alleged contraband material and search memo i.e. Ex.P/1 -A , Ex.P/1- B,
Ex.P/1- C and Ex.P/1 -D respectively. In this behalf defence counsel put question No.67 to the
PW-1, which was replied as under:
The above observation of the trial Court, is enough to create serious doubt about the safe custody of the parcel. Furthermore, in reply to Question Nos.75 and 76, the PW -1 stated that
all the parcels were prepared of white cloth, while he admitted that today no parcel of cloth was produced in the Court, voluntarily stated that the Investigating Officer, will produce the same. It is also noted that PW- 1 in his examination in chief deposed that, on search of the
vehicle, 07 packets of contraband material were recovered beneath the driving seat and 13 packets were recovered from the trunk of the car, underneath the spare wheel, which contradict the contents of the FIR. The PW -2 Inspector, Haider Ali (complainant) when
appeared before the Court, he during cross -examination in reply to question No.25, stated as
under:
Replying to another question he stated that;
He further replied to question No.56 as under:
While PW -3 stated that the seal parcels were handed over to him by Inspector, Rana Kashif
Javed, (PW- 5) (Investigating Officer) which shows that the parcels were brought to ANF,
Police Station and thereafter handed over to the PW -3, thus, created serious doubt in the safe
custody of the alleged recovered contraband material, whereas, in the trial, it was essential
for the prosecution to establish its case through cogent and convincing evidence. The alleged contraband was seized from the possession of accused and was kept in safe custody in the malkhana at Police Station and thereafter the representative samples were safely transmitted
to the office of the chemical examiner at Quetta for analysis, and it is evident that the needful
was not done in its required manner. The sample/ contraband so deposited in the office of
Federal Narcotic Testing Laboratory, Balochistan, Quetta, on 01.07.2020, could not be tagged with the seized substance allegedly recovered from possession of the appellant/convict in absence of evidence of its safe custody. In this view of the matter, the prosecution has not been able to establish that after the alleged recovery, the substance so recovered was either kept in safe custody, or that the samples taken from the recovered contraband material had safely been transmitted to the office of chemical examiner, without the same being tempered with or a replace while in transit especially when the signatures of PW-1 was found different on the parcel. We are of the considered view that the appellant is
such case of narcotics carrying capital punishment cannot be convicted and sentenced only on the basis of oral assertion unless it is established with cogent evidence that the material allegedly recovered from possession of the appellant was a narcotic, which in our view, the prosecution in the case in hand has failed to do so. The Hon'ble Supreme Court of Pakistan in numerous judgments about the preposition that if there is a single circumstance which create a reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to accused.
9. The perusal of case file further reveals that as per recovery memo Ex.P/1 -C, the
alleged recovery was affected on 30.06.2020 at about 21:30 hours, and the parcel of alleged
contraband was prepared at the spot which as per the statement of Investigating Officer PW -
5, he handed over the same to the Mohrer, ASI, Muhammad Ramzan (PW -3), who
accordingly made an inventory in Register No.19, kept the same in store room (malkhana), however, PW -3 in support of his statement did not produce the said Register No.19,
maintaining the relevant entries with regard to receiving the parcel, registering the same in register and placing the parcel in malkhana and thereafter handing over the same to the Investigating Officer for its onward transmission to the Federal Narcotic Testing Laboratory Quetta. We are mindful to hold that though the PW -2 who is the In- charge of malkhana, has
categorically stated about the process, however, in order to prove the process, it would be more helpful for the prosecution to have produce the Register No.19 in support of their case, which was otherwise directory in nature and not mandatory.
10. Another important aspect of the case is that the PW -2, Inspector Haider Ali, raided
the alleged place of occurrence on an spy information, but he failed to associate any respectable mushir from the area. It is an admitted feature of the case that the alleged place of occurrence was thickly populated area and situated on main Road. Record further reveals that at the time of alleged recovery there were many passersby, but no one was made a mushir. The only explanation given by the prosecution was that no one was ready to be associated as a mushir, which does not appear to be a convincing reason. Even otherwise, there are several contradictions amongst the testimony of the PWs, which creates doubt independent.
11. Apart from above facts, we have also noticed that the Government Analyst of the
Federal Narcotics Laboratory Balochistan, Quetta, while preparing the reports Ex.P/5 -G to
Ex.P/5- KK has not complied with the mandatory provisions of Rule 6 of the Control of
Narcotic Substances (Government Analysts) Rules, 2001. The Hon'ble Supreme Court of
Pakistan in the case of "Khair ul Bashar v. The State" 2019 SCMR 930 has declared that the
requirements of Rule 6 of the Control of Narcotic Substances (Government Analy sts) Rules,
2001 are mandatory and if the same have not been complied with the report of Government
Analysts due in consequence of Rule 6 loses its reliability and evidentiary value. It has also been held that non- compliance of Rule 6 and absence of any of the enumerated mandatory
elements/ requirements frustrates the purpose and object of the Control of Narcotic Substances Act, 1997. The term "Protocol" as observed in the case of "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCM R 2039), 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 the test data. Rule 6 requires that full 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" includes 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 seized substances with the full protocols adopted to conduct such tests. Similarly, the Hon'ble Supreme Court in case of "Qaisar Javed Khan v. The State and another" PLD 2020 SC 57, reiterated the same dictum, however, to further clarify it to the government analyst testing laboratories, it was directed that to serve the
purposes of the Act and the Rules, the Report of the Government Analyst must contain (i) the tests applied (ii) the protocols applied to carry out these tests (iii) the result of the test(s). The sequence, for clarity and better understand can be envisaged as follows:
Test Applied Protocols (applied to carry out the
test) Results of the test(s)
12. Likewise, the United National Organization on Drugs and Crimes (UNODC)
guidelines provide two kinds of tests of the materials viz 'presumptive test and confirmative test' and the presumptive test be mentioned before endorsing/opinion upon the confirmative test, while result of both the tests be mentioned separately. In the instant case, the reports prepared by the Government Analyst, Federal Narcotics Testing Laboratory Balochistan Quetta Ex.P/5 -G to Ex.P/5 -KK does not carry separate result of each test app lied rather the
report contains that "a. After presumptive and confirmative tests, results of the test are positive. b. As per test protocol the submitted sample is identified a "Hashish Garda". The report in absence of applying both presumptive and confirmative tests and without applying the guidelines as provided by the Hon'ble Supreme Court in case supra cannot be termed to be in consonance of the guideline provided therein. Such, defective reports are customarily observed in cases, wherein recovery of narcotics is alleged to have been recovered. The government analyst/examiner is required to follow the guidelines postulated by the Hon'ble Supreme Court and the procedure given in the UNODC guidelines and apply both the test of
presumptive and confirmative and without applying both the tests, any report or opinion
rendered therein cannot be considered to be unambiguous and supportive to the prosecution case. Therefore, for ease of reference and to observe care and caution in future, for rendering the report, following specimen of the report shall necessarily be adopted, which is reproduced herein below:
Test Applied Protocols (applied to carry out
the test) Results of the test(s)
Presumptive test In case of exami -nation of any
narcotics sub -stance(s), the rele-
vant presumptive test(s) be men-tioned separately and thereafter the confirmative test be
conducted
13. We are of the considered opinion that the appellant in such case of narcotics carrying
a stringent sentence cannot be convicted and sentenced only on the basis of oral assertions
unless it is established with certitude that the material allegedly recovered from the possession of the appellant was a narcotic, which in our view, the prosecution in this case has failed to do so. Therefore, no cavil is left to hold that establishing an unbroken chain of safe custody of contraband items is necessary for conviction in narcotics cases, because recovery in such cases is not mere corroboratory piece of evidence rather it is always required to be proved independently and beyond the shadow of any reasonable doubt.
For the above reasons, the appeal is accepted and the impugned judgment dated
28.04.2022, passed by the trial Court is set aside and while extending benefit of doubt, the appellant Muhammad Hanif son of Muhammad Ayub, is acquitted of the charge under
section 9(c) of the CNS Act, 1997, in case FIR No. 14 of 2020 of Police Station ANF Quetta.
The appellant is in custody, he shall be set at liberty if not required in any other case.
JK/85/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,
let us know.