2024 Y L R 718
[Balochistan]
Before Zaheer- ud-Din Kakar and Muhammad Aamir Nawaz Rana, JJ
SARDAR MUHAMMAD---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 385 of 2021, decided on 12th September, 2022.
Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c), 20 & 21--- Control of Narcotic Substances (Government Analysts) Rules, 2001,
R. 6--- Recovery of narcotic substance---Appreciation of evidence --- Chemical examination --
-Protocol applied, non- mentioning of ---Effect ---Charas weighing 15,000 grams was
recovered from accused, who was convicted by Trial Court and sentenced to imprisonment
for life ---Validity ---In Forensic Science Laboratory report criteria laid down in R. 6 of
Control of Narcotic Substances (Government Analysts) Rules, 2001, was complied with and guidelines given by the Supreme Court were also followed---Non -mentioning of detail of
protocol in FSL report was without merit as during trial no objection in such regard was taken ---Provision of S. 510, Cr.P.C., could have been invoked by accused in such context but
no effort was made ---Compliance of S. 21 of Control of Narcotic Substances Act, 1997, was
not mandatory rather directory and omission in such regard could entail disciplinary proceedings or penal action against delinquent officer but did not affect admissibility of recovered substance--- Trial Court correctly appreciated prosecution evidence and no
illegality or irregularity was found which could cause any dent in prosecution case ---High
Court declined to interfere in conviction and sentence awarded to accused, as prosecution evidence was consistent and not shaken despite lengthy cross -examination---Appeal against
conviction was dismissed, in circumstances.
Khair -ul-Bashar v. The State 2019 SCMR 930; The State v. Imam Bakhsh 2018
SCMR 2039; Qaiser Khan v. The State 2021 SCMR 363; Qaiser Javed Khan v. The State PLD 2020 SC 57; Shafa Ullah Khan v. The State 2021 SCMR 2005 and Union of India v. Satrohan (2008) 8 SCC 313 rel.
Syed Zulfiqar Shah v. The State 2022 SCMR 1450 fol.
Muhammad Shabbir Rajput and Ali Muhammad Durrani for Appellant.
Muhammad Naeem Kakar, Additional Prosecutor General for the State.
Date of hearing: 24th August, 2022.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---Appellant Sardar Muhammad son of
Rahim Dad was tried by the Court of Special Judge for CNS, Loralai ("trial Court") and vide judgment dated 25.08.2021 ("impugned judgment") was convicted and sentenced as follows:
"17. In view of above discussion, it has proved that accused Sardar Muhammad possessed Charas weighing 15000 grams in contravention of provisions of Section 6 and punishable under section 9(c) of Control of Narcotic Substances Act, 1997. Hence, the accused Sardar Muhammad son of Rahim Dad is found guilty of the offence of keeping in possession Charas weighing 15000 grams. He is convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer R.I. for life and to pay fine in the sum of Rs. 100, 000/ - (rupees one hundred
thousand only). In default of payment of fine he shall undergo further S.I. for one (1) year. Benefit of Section 382- B, Cr.P.C. is extended in his favour."
SUMMARY OF FACTS:
Facts necessary for appraisal of prosecution evidence and findings of the trial Court
are: the SHO Police Station Saddar, Loralai on 19/02/2021 sent a Marasala (Exp/1- A)
through his driver Noorullah to Police Station Loralai for registration of FIR against the
appellant stating therein that while he was on patrol duty of the area, he received spy information that a person is bringing Hashish (Charas) from Tor Khezi Dam towards Al -
Shams Hotel, Dera Road on his 125cc motorcycle. The report further divulges that on this spy information, barricade was put at Killi Khapli and during checking at about 09:15 PM, one 125cc motorcycle was seen which was stopped, the person riding the motorcycle disclosed his name as Sardar Muhammad son of Rahim Dad (appellant). The motorcycle was checked and, on its seat, a white sack was found and when it was searched, narcotic substance was recovered and on weighing the same, it was found to be 15000 grams. The narcotic substance, as per contents of the report, in presence of witnesses was taken into custody through recovery memo and subsequently it was sealed in a parcel for further transmission to Chemical Examiner for Forensic Report. On the basis of Marasala (written report), FIR No.28/2021 (Exp/4- A) was lodged.
INVESTIGATION:
PW4 (Muhammad Tahir, Sub Inspector) was entrusted with the investigation who
visited the place of incident, received recovery memo and parcel of narcotic substance and arrested the appellant. He recorded the statements of the witnesses of recovery memo, went
back to Police Station and parcel of narcotic substance was handed over to PW3 (Head
Moharir, Dawood Khan Additional Sub- Inspector) and, on 21/02/2021, delivered the parcel
containing narcotic substance to Forensic Science Laboratory at Quetta and subsequently
received the report of Chemical Examiner (Exp/4 -D) and submitted report under section 173,
Cr.P.C as Exp/4- C and Exp/4- E.
TRIAL:
The prosecution, in order to prove the guilt of appellant, produced PW1 (Abdul
Rehman, SHO) who was the complainant of the case and got exhibited his Marasala (written report) as Exp/1 -A; PW2 (Baitullah, ASI) got exhibited the recovery memo (Exp/2- A) before
the trial Court; PW3 (Dawood Khan) was Head Moharir who was produced to prove safe custody, he deposed that on 19/02/2021 the Investigating Officer handed over him the parcel containing narcotic substance which fact was incorporated in the register No. 19 and parcel was kept in storehouse (Maal Khaana); PW4 (Muhammad Tahir SI) was the Investigating Officer who explained his investigation before the trial Court and produced relevant documents including Exp/4- D, the report of chemical expert confirming the recovered
material as Hashish Garda.
The trial Court, while appreciating the prosecution evidence, considering it
confidence -inspiring, held the accused guilty and convicted and sentenced him on the terms
mentioned supra.
SUBMISSIONS OF LEARNED COUNSEL FOR THE APPELLANT AND LEARNED ADDITIONAL PROSECUTOR GENERAL:
Learned counsel for the appellant made number of submissions; the same can be
encapsulated briefly that the prosecution failed to prove its case against the appellant as per the standards set by the Hon'ble Supreme Court of Pakistan in the cases titled as Khair -ul-
Bashar v. The State
1, The State v. Imam Bakhsh2, Qaiser Khan v. The State3, Qaiser Javed
Khan v. The State4, Shafa Ullah Khan v. The State5.
Learned counsel for the appellant further contended that the safe custody of the
narcotic substance was not proved. The report of Chemical Examiner is also not in
accordance with guidelines provided by the Hon'ble Supreme Court of Pakistan in Qaiser
Javed Khan's case supra, as proper protocols for conducting tests for the purpose of confirmation of alleged material were not done. Learned counsel pointed out that there are
material contradictions rendering the prosecution case doubtful; while concluding the
arguments, learned counsel submitted that since spy information allegedly had been received
by the complainant of the case, therefore the compliance of subsection (2) of section 21 of
Control of Narcotic Substances Act, 1997 ("CNS Act") was mandatory. In this regard, in order to elaborate his arguments, learned counsel further submitted that section 21 of CNS Act is in fact pari materia of section 42 of the Narcotics, Drugs and Psychotropic Substances Act, 1985, enforced in India, and in this regard, the Indian Supreme Court, while interpreting
the provisions of section 42, has declared its compliance as mandatory; he placed reliance in
this regard, in the case of Darshan Singh v. State of Haryana and also in the case of Karnail
Singh v. State of Haryana from the jurisdiction of Indian Supreme Court.
Learned Additional Prosecutor General appearing on behalf of the State supported the
impugned judgment and contended that prosecution has proven its case beyond any doubt against the appellant.
Arguments heard and with the able assistance of the learned counsel for the appellant
as well as learned Additional Prosecutor General, record was perused.
DETERMINATION:
In the promptly lodged FIR, it is observed that all the necessary steps required were
taken by the prosecution to ensure safe custody of the material recovered from the appellant which ultimately through the report of Chemical Examiner (Exp/4- D) was confirmed as
Hashish (Charas). The recovery memo (Exp/2- A) was prepared at the spot and the narcotic
substance was also sealed at the spot which was handed over to PW3 (Dawood Khan, ASI,
Head Moharir) who incorporated this fact in register No.19 and kept the substance in the
storehouse (Maal Khaana) and confirmed this fact before the trial Court as well. The
Investigating Officer PW4 deposed that he took the narcotic material to the FSL, so the
prosecution on all significant aspects of the matter met the standards set by Hon'ble Supreme Court of Pakistan in the cases titled as Khair -ul-Bashar v. The State
6, The State v. Imam
Bakhsh7 and Shafa Ullah Khan v. The State8, referred by the counsel of appellant.
In the case of Shafa Ullah Khan ibid, the protocol applied and result of the same has
been discussed in detail; considering the FSL report i.e. Exp/4- D, in this case, the criteria
laid down in the Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 has been complied with and the guidelines given by the Hon'ble Supreme Court of Pakistan, in the cited cases, have also been followed; moreover, the contention of learned counsel for the appellant regarding not mentioning of detail of the protocol in the FSL report i.e. Exp/4 -D is also without merit as during trial, no objection in this regard, was taken. The
provision of section 510, Cr.P.C. could have been invoked by the appellant in this context but no effort was made. In this regard, the relevant excerpt from the case of Shafa Ullah Khan supra is relevant, the same is reproduced for facility of reference:
"So far as the argument of the learned counsel regarding non- mentioning of the detail
of the protocol is concerned although in Imam Bakhsh's case it is mentioned that protocol has to be mentioned in the report but subsequently in Qaisar Javed Khan's case it was further elaborated as under: --
The report of the Government Analyst must show that the test applied was in accordance with a recognized standard protocol. Any test conducted without a protocol loses its reliability and evidentiary value. Therefore, to serve the purpose 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 tests). This sequence, for clarity and better understanding can be envisaged as follows;
Test Applied Protocols (applied to carry out
the test) Results of the test(s)
In the present case in the report of Agency, the test applied, protocol and result of the test has been mentioned however detail of the protocol is not mentioned. This matter was further clarified that if there is any ambiguity in the report the same may be resolved by the trial court by exercising its powers under proviso to section 510 of the
Criminal Procedure Code. So we have not found any ambiguity in the Agency's report
and there is no infirmity in the impugned judgment and the conclusion drawn by the courts below regarding the guilt of the appellant is not open to any exception."
Learned counsel for the appellant has emphasized upon the non- compliance of
provision of subsection (2) of section 21 of CNS Act; according to him, the violation of said section has vitiated the entire proceedings against the appellant. For ready reference, the said section is reproduced herein below:
"21. Power of entry, search, seizure and arrest without warrant.--(1). Where an officer not below the rank of Sub- Inspector of Police or equivalent authorized in this behalf
by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may -
(a) Enter into any such building, place, premises or conveyance;
(b) Break open any door and remove any other obstacle to such entry in case of resistance;
(c) Seize such narcotic drugs, psychotropic substances and controlled substances and
other materials used in the manu -facture thereof and any other article which he has
reason to believe to be liable confiscation under this Act and any document or other
article which he has reason to believe may furnish evidence of the commission of an
offence punishable under this Act; and
(d) Detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under sub -section (1), the officer
referred to in that subsection shall record the grounds and basis of his information and immediate action and Forthwith send a copy to his immediate superior officer."
(Emphasis Provided)
Learned counsel, as mentioned above, compared section 21 of CNS Act, with section
42 of the Narcotics, Drugs and Psychotropic Substances Act, 1985, enforced in India and submitted that the compliance of Section 21 is mandatory; to support his argument from the jurisdiction of Indian Supreme Court, certain judgments were relied upon i.e. (1) Darshan Singh v. State of Haryana and (2) Karnail Singh v. State of Haryana, in which section 42 was discussed and its compliance was declared mandatory.
Conversely, by going through various judgments rendered by the Supreme Court of
India, divergent views are observed while interpreting section 42 of Narcotics, Drugs and Psychotropic Substances Act, 1985, e.g. in the case
of Union of India v. Satrohan
9, the Indian Supreme Court had interpreted section 42 and
its compliance as not mandatory and concluded that in case gazetted officer has made the seizure then the compliance of section 42 is not required, relevant excerpt is as under:
"It can, thus, be seen that Sections 42 and 43 do not require an officer to be a gazetted officer whereas Section 41(2) requires an officer to be so. A gazetted officer has been differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a gazetted officer. The High Court is, thus, right in coming to the conclusion that since the gazetted officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. "
That Hon'ble Supreme Court of Pakistan has also dilated upon this question, as to
whether compliance of sections 20 and 21 of CNS Act, is mandatory or directory and while
discussing the numerous factors, it has been held that the compliance of section 20 is
directory, not mandatory. Reliance is being placed upon the case of Syed Zulfiqar Shah v. The State
10, the relevant excerpt is reproduced herein below:
"3. The main contention put forth by the learned counsel for the petitioner was that the police did not obtain the requisite search warrant for conducting the raid on the petitioner's house, as required under section 27 of the KPK Act of 2019; therefore, the recovery of charas was made in violation of the law, and thus, cannot be relied upon for connecting the petitioner with the commission of the alleged offence.
4. The provisions relating to obtaining a warrant for the arrest of an accused and the search of the narcotics from a dwelling house are provided in section 27 of the KPK Act of 2019, which are identical to the provisions of section 20 of the Control of Narcotic Substances Act, 1997 ("CNSA of 1997"). The interpretation put to the latter provisions by this Court would therefore be pertinent for the determination of the contention of the learned counsel for the petitioner.
5. In the case of Fida Jan v. The State, a three -member bench of this Court held that
the provisions of section 20 of the CNSA of 1997 are directory in nature, and conducting the raid, without obtaining a search warrant, would not in itself suffice to vitiate the trial. The Court held:
6. We have considered the implication of section 20 of the Act. It appears that the law givers have coached this section of law in such manner that it does not place a mandatory obligation upon the Investigating Agency to obtain search warrants from the Special Judge before conducting a raid .... [From the language employed in a statute it can be gathered whether it is mandatory or directory in its nature. We have noticed that in section 20 of the Act word "may" has been used with reference to obtaining search warrants by the agency who intended to effect search of a house,
place, premises or conveyance etc. It is also known principle of interpretation of statute that word "may" sometimes can be used as "shall". But perusal of section 20 of the Act suggests that law has not prescribed consequences of conducted search without obtaining the warrants from Special Court. Thus, we are of the opinion that it is directory in nature, therefore, depending upon facts and circumstances of each case if the Investigating Agency has not obtained search warrants from Special Judge before conducting raid in a house for the recovery of narcotics, this reason alone would not be sufficient, to vitiate the trial."
(Emphasis add)
Similarly, in the case of Muhammad Hanif v. The State, this Court observed that the police officer had acted on the basis of tip - off information, and thus, it would not
have been possible to undertake the time -consuming formalities at the cost of the
disappearance of the accused. The Court held that non- compliance of the provisions
of sections 21 and 22 of the CNSA of 1997, does not vitiate the trial, and such omission being an "irregularity" can be remedied under section 537 of Cr.P.C. While in Muhammad Younas v. Mst. Perveen, this Court observed that the trial court would proceed to determine the guilt or innocence of an accused on the basis of the evidence produced before it, irrespective of the manner in which it is brought. The Court, in the said case, also observed that in a proper case, a Police Officer, who violates the provisions of sections 21 and 22 of the CNSA of 1997 may render himself liable to disciplinary or penal action or both, in accordance with law.
6. However, a three -member bench of this Court has cautioned in The State v.
Hemjoo, that non- compliance of the provisions of section 20 of the CNSA of 1997
cannot be a norm, rather it may be condoned, only in some exceptional circumstances, justi- fying such non- adherence. The Court held:
The combined study of sections 20 and 21 of the Control of Narcotic Substances Act, 1997 would show that only in exceptional cases in which the search warrant cannot possibly be obtained before conducting the raid, an officer authorized in this behalf can proceed for conduct of raid without the warrant but this power cannot be allowed to be used in every case in the normal circumstances.
A similar view was expressed in Arshad Mahmood v. The State, with more vehemence. But in both these cases, the Court did not express any view about the
directory or mandatory nature of the provisions of section 20 of the CNSA of 1997,
nor did it describe the effect of non -compliance of these provisions, as to the
determination of the guilt or innocence of the accused on the basis of evidence collected by committing violation of these provisions.
7. What is important to note is that in Zafar v. The State, a four member larger bench of this Court approvingly referred to the cases of Fida Jan and Muhammad Younas,
for making the observations that the provisions of sections 20 to 22 of the CNSA of
1997 are directory, and that neither can the non -compliance of the said provisions be
a ground for holding the trial or the conviction awarded to an accused bad in the eyes
of law nor can the conviction be set aside on this ground.
8. Scanning through the above judicial pronouncements, we note that, the considered view expressed in Fida Jan case by a three- member bench of this Court, as to the
directory nature of the provisions of section 20 of the CNSA of 1997 still holds the
field. The Court, in that case, has categorically held that because of the directory
nature of provisions of section 20, the non- compliance thereof cannot be the sole
ground for acquittal of the accused, and rendering the entire trial bad in the eye of law. This considered view of a three- member bench of this Court has neither been
dissented to by any co- equal bench nor overruled by a larger bench.
9. Thus, we hold that the provisions of section 27 of the Khyber Pakhtunkhwa Act of
2019, which are identical to the provisions of section 20 of the CNSA of 1997, are
also directory in nature, and their non- compliance though may entail departmental
disciplinary action or penal action or both against the delinquent police official, but do not affect the admissibility of the fact of recovery of the narcotics in evidence
before the trial court. The contention of the learned counsel for the petitioner is,
therefore, rejected."
(Emphasis Provided)
In view of the judgment passed in the case of Syed Zulfiqar Shah (supra), we
conveniently hold that the compliance of section 21 of CNS Act is not mandatory rather
directory and omission in this regard may entail disciplinary proceedings or penal action against the delinquent officer but shall not affect the admissibility of the recovered substance.
Despite complete reappraisal of prosecution evidence and findings recorded by the
trial Court, we are convinced that the trial Court has correctly appreciated the prosecution evidence. No illegality or irregularity has been found which could cause any dent in the prosecution case. The prosecution evidence was consistent and not shaken despite lengthy cross, therefore, we find no merits in the appeal. Appeal stands dismissed.
MH/169/Bal. Appeal dismissed.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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