PLJ 2018 Cr.C. (Lahore) 335 (DB)

PLJ 2018 Cr.C. (Lahore) 335 (DB)[Multan Bench Multan]

Present: Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ.

Syed JAVED HUSSAIN--Appellant

versus

STATE etc.--Respondents

Crl. Appeal No. 516 of 2015, heard on 07.12.2017.

Duty of prosecution--

----Requirement of law--Held: That prosecution must prove recovery of each packet of charas through separate packets and separate results of Chemical Analyst--Prosecution furnished positive report but with regard to net weight of 10-grams without mentioning test result of each sample parcel--We have observed that none of relevant protocols and tests was observed by Chemical Examiner and was substantially scored off by crossing it, which was a complete failure of compliance of relevant rule and, thus, same cannot be treated as a “conclusive” proof of recovery of narcotic substance from appellant.                                                 [P. 340] A

Ameer Zeb’s case PLD 2012 SC 380 and Ikramullah and others vs.
The State 2015 SCMR 1002, ref.

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----Ss. 9(c) & 48--Criminal Procedure Code, (V of 1898), S. 410--Conviction and sentence--Challenge to--Recovery of narcotic substance--In awake of deposition of both Investigating Officers that alleged contraband substances alleged to had been recovered from appellant while riding on a motor cycle and passing through Chowk and police apprehended him recovered alleged contraband and challaned him in alleged occurrence--On same day another case was registered against one person “G” alleging that alleged narcotic substance had been recovered from his house, whereas during investigation it came to light that appellant arrested from house of “G”, was invited by said person “G” with his family and was available there at time of raid--Narcotic substance was recovered from house of “G” and entangled appellant from place of occurrence, which was not in exclusive possession of appellant--Appellant could not be connected with alleged recovery of narcotic substances--Prosecution has failed to bring home guilt of appellant beyond reasonable shadow of doubt--No other option except to allow instant appeal.[Pp. 341 & 342] B

Mr. Mehroz Aziz Khan Niazi, Advocate for Appellant.

Mr. Muhammad Ali Shahab, D.P.G. for State.

Date of hearing: 07.12.2017.

Judgment

Asjad Javaid Ghural, J.--Through this appeal under Section 48 of The Control of Narcotic Substances Act, 1997 read with Section 410 of the Code of Criminal Procedure, 1898, appellant Syed Javed Hussain has challenged the vires of judgment dated 23.09.2015 passed by a learned Additional Sessions Judge at Multan, in case FIR No. 528 dated 14.08.2013, in respect of an offence under Section 9-C of The Control of Narcotic Substances Act, 1997 registered at Police Station, ANF Multan, whereby he was convicted under Section 9-C of the Act ibid and was sentenced to rigorous imprisonment for life with the fine of Rs. 2,00,000/- and in default thereof to further undergo simple imprisonment for six months.

Benefit of Section 382-B, Cr.P.C. was extended to him.

2.  Briefly, the facts of the case as narrated in the crime report registered on the complaint of Muhammad Ashraf, Sub-Inspector (PW-4) are that on 14.08.2013 he alongwith Rashid Shafi TASI, Muhammad Zakaria ASI, Abdul Sattar 1667/HC, Nauman 3280/C, Azam 1846/C, Shahzad 3332/C, Imran 3310/C, Zuliiqar 4498/C, Furqan 3469/C on official vehicle No. 152/MNG, was present at Chowk Qazafi on surveillance duty when he received a spy information that one person on his motor cycle No. 3645/MNO Super Star was coming towards Lorri Adda. On this information he set up a picket at Chowk Qazafi where they apprehended Syed Javed Hussain having 10-packcts weighing 12.35 kilo grams of Charas in a blue colour shopper lying on the oil tank of the motor cycle. Out of the recovered narcotic substance fourty samples from each 10-i.e 4/4 samples (total 40- samples), which were Charas P-1/1-10 taken into possession vide recovery memo. Ex.P-B. Upon further search, of the accused two mobile Nokia Sim No. 03158583829, 0321-7310415 (P-3) and (P-4) an amount of Rs. 600/- and National I.D Card were recovered, which was taken into possession alongwith the motor cycle vide recovery memo. Ex.PC.

3.  At the commencement of the trial, the learned trial Court had framed a charge against the appellant to which he had pleaded not guilty and claimed to be tried.

4.  The prosecution had produced 05-witnesses besides the report of Chemical Examiner (Ex.PE). The appellant, in his statement recorded under Section 342, Cr.P.C., had denied and controverted the allegations leveled against him, he neither opted to make statement under Section 340(2), Cr.P.C. nor had he produced any witness in his defense.

5.  Learned counsel for the appellant submits that the appellant has been falsely implicated in the said occurrence by the police just to show efficiency; that the appellant was invited by one Ghulam Mustafa with family on the feast in his house when the police conducted raid and apprehended him alongwith said Ghulam Mustafa; that the alleged recovered narcotic substance had been planted against the appellant while showing his arrest from Chowk Qazafi; that nothing has been mentioned in the crime report with regard to sealing of the samples separated for onward transmission to the office of Chemical Examiner; that the report of Chemical Examiner reveals that the samples were received in the office of Punjab Forensic Science Agency through Excise and Taxation Officer, who being alien to the proceedings of recovery has nothing to do with the sample parcels; that the question of safe custody of recovered narcotic substances could arise while intruding the Excise and Taxation Officer; that it was a joint report of all 40-samples which is against the dictum laid down by the August Supreme Court of Pakistan in famous Ameer Zaib case (PLD 2012 S.C 380); that Mushtaq Ahmed, Inspector R.I.B and Nazar Muhammad, Inspector being Investigating Officer of the case in hand appeared as CW-1 and CW-2 and negated, the entire prosecution version with regard to alleged recovered narcotic substance from the appellant. At the end, a prayer has been made for the acquittal of the appellant from the charge.

6.  Conversely, learned Deputy Prosecutor General appearing for the State has submitted that the prosecution has proved its case beyond reasonable shadow of doubt by producing cogent, convincing and confidence inspiring evidence; that both the eye-witnesses appeared as CW-1 and CW-2 had made concessional statements just to show the bona fide of the appellant, however, he had conceded in all fairness that it was a joint report and the sample received in the aforesaid office through Excise and Taxation Officer, is not warranted under the law; that the appellant should not be acquitted merely on technicalities and seeks at least to maintain the conviction while reducing the sentence already undergone.

7.  We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General appearing for the State and have perused the record with their assistance.

8.  In order to prove the guilt of the appellant the prosecution has produced Muhammad Zakria ASI, PW-3 and Muhammad Ashraf, Sub-Inspector, PW-4, complainant Investigating Officer. They both had attested the recovery memo. prepared with regard to the alleged narcotic substance. Muhammad Ashraf Sub-Inspector (PW-4) along-with other police contingents was present at Chowk Qazafi for surveillance on 14.08.2013 at 01:10 p.m. when he received a spy information that one person on his motorcycle Bearing No. 3645/MNO Super Star was coming towards Chowk having huge quantity of Charas. He constituted a raiding party and made vigilant. The appellant was apprehended there having ten packets of Charas rapped in shopper of blue colour weighing 12:35 kilo grams on the oil-tanki of the said motor cycle. He took 4/4 samples of ten grams from each packet total fourty samples for onward transmission to the office of Chemical Examiner for analysis. Two mobile phones and sale proceed of Rs. 600/-were also recovered and taken into possession vide recovery memo. Ex.P-C. Muhammad Zakaria ASI (PW-3) being member of the raiding party had supplemented the averments made by the complainant. The important fact, which had not been stated by the complainant is that he had not specifically stated anywhere in his deposition before the learned trial Court that he had prepared the recovery memo. and signed the same alongwith others whereas Muhammad Zakaria (PW-3) had deposed that the recovery memo. was attested by him and Rashid shafi, TASI. The sample parcels and rest of the case property were handed over to the Moharrir. Khursheed Ahmed ASI/Moharrir appeared as PW-5 and verified the factum of the receiving the sample parcels and the case property, winch were kept by him in the Malkhana in safe custody. He handed over the sample parcels to Muhammad Hussain 1910/C (PW-1) on 21.08.2013 for its onward transmission to the office of Chemical Examiner, who deposited the same in the said office on the same day intact but the question arises that Muhammad Hussain 1910-C (PW-1) admitted during investigation that he had received the sample parcels on 21.08.2013 and deposited the same intact on the same day but the report reveals that the sample parcels were received in the office of Chemical Examiner through Excise and Taxation Officer (E.T.O), who has nothing to do with the alleged contraband substance. The Excise and Taxation Officer being an alien to the proceedings as he was neither the member of police force nor member of raiding party nor representative of the Police Station then in what capacity he had deposited the sample parcels in the aforesaid office. The learned Law Officer submits that a “docket” issued by the office of Excise and Taxation Officer was attached through which the parcels were being deposited but this argument had no force at all as from the, day one it was claimed of the prosecution that the members of the police force constituted a raiding party, apprehended the appellant, recovered narcotic substances, deposited the same to the Moharrir for safe custody and then the sample parcels were handed over to Muhammad Hussain Constable (PW-1) for its onward transmission to the office of Chemical Examiner and nowhere has it been mentioned that anyone else was entrusted in the aforesaid proceedings and if at all any “docket” has been received that must be mentioned in the evidence of Moharrir or even in the deposition of a person to whom the sample parcels delivered for its onward transmission to the office of Chemical Examiner but that is not a case of prosecution. In such scenario the question of safe custody of narcotic substance arises. The prosecution is bound under Section 19 of The Control of Narcotic Substances Act, 1997 to prove the safe custody and chain of evidence, which should not be broken. So for as intruding the Excise and Taxation Officer as “forwarding authority is not approved by the Superior Courts of this Country” We seek guidance in this respect from the case titled “Muhammad Abbas vs. The State (2006 YLR 2378 [Lahore])”. The relevant portion of the said judgment is reproduced as under:--

“After hearing the learned counsel for the parties and going through the record, we have straightaway observed that although the alleged recovery of narcotic substance from the appellant’s possession had been effected on 29.06.1998 yet none of the prosecution witnesses had uttered even a single word as to what had happened to the recovered substance after its recovery and with whom the same had been deposited for safe custody. It was only Muhammad Ramzan, FC (P.W.-4), who had stated before the learned trial Court that on 13.07.1998 he had been handed over two parcels said to contain heroin and Charas by Moharrir Head Constable of the relevant Police Station for onward transmission to the office of the Chemical Examiner which he delivered there on the same day. The report of the Chemical Examiner (Exhibit-PE), however, shows that the docket of the samples of the recovered substance had been prepared on 06.07.1998 and the said samples had been dispatched by the Excise and Taxation Officer, Sheikhupura and not by the local police. We have required the learned counsel for the State to explain as to how the samples of the recovered substance had come in the hands of the Excise and Taxation Officer, Sheikhupura, and what was the evidence available on the record to confirm that the same had been kept in safe custody while in possession of the Excise and Taxation Officer, Sheikhupura but after going through the record of this from cover to cover he has categorically conceded that there is no evidence whatsoever available on the record in those respects. In such a state of the evidence available on the record safe custody of the recovered substance or its samples is not discernable from the record of this case and, thus, we have found it to be extremely unsafe to uphold and maintain the appellant’s convictions and sentences recorded by the learned trial Court.”

9.  The report of Chemical Examiner (Ex.P.E) reveals that it was a joint report of all 40 parcels, which could not qualify to prove whether the recovered material was in fact a Narcotics Substances.

10.  Muhammad Ashraf Sub-Inspector (PW-4), had separated 40 samples from each 10- packets i.e 4/4 samples (total 40-samples) of charas recovered from the appellant, which were sealed and sent to the office of Chemical Examiner through Muhammad Hussain, 1910/C (PW-1) on 21.08.2013 and the same were deposited in the office of Chemical Examiner on the same day (as per reports of Chemical Examiner Ex.PE) and subsequently the Chemical Examiner had submitted report regarding the said samples. It was the requirement of law as held in Ameer Zeb’s case (PLD 2012 SC 380) that the prosecution must prove the recovery of each packet of charas through separate packets and separate results of Chemical Analyst. The prosecution furnished positive report but with regard to the net weight of 10-grams without mentioning the test result of each sample parcel. We have observed that none of the relevant protocols and tests was observed by the Chemical Examiner and was substantially scored off by crossing it, which was a complete failure of compliance of the relevant rule and, thus, the same cannot be treated as a “conclusive” proof of the recovery of narcotic substance from the appellant. We seek guidance in this respect from case titled “Ikramullah and others versus The Stae” (2015 SCMR 1002) wherein at page No. 1005, it has been held as under:

“A bare look at the report submitted by the Chemical Examiner in the present case shows that the entire page which was to refer to the relevant protocols and tests was not only substantially kept blank but the same has also been scored off by crossing it from top to bottom. This surely was a complete failure of compliance of the relevant rule and such failure reacted against reliability of the report produced by the prosecution before the learned trial Court. Section 36 of the Control of Narcotic Substances Act, 1997 requires a Government Analyst to whom a sample of the recovered substance is sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in “the prescribed manner form” and, thus, if the report prepared by him is not prepared in the prescribed manner then it may not qualify to be called a report in the context of Section 36 of the Control of Narcotic Substances Act, 1997 so as to be treated as a “conclusive” proof of recovery of narcotic substance from an accused person. “

11.  Mushtaq Ahmed, Inspector R.I.B appeared as CW-1. He had investigated the case and deposed before the learned trial Court in his cross-examination as:

“I have examined in my case dairy that Ghulam Mustafa admitted that at the time of raid, police recovered narcotics from his house in his possession and Javed was present at his home when the raid was conducted. Therefore, at the time of recovery both the accused Ghulam Mustafa and Javed Hassan were found present at the place of recovery.”

Nazar Muhammad, Inspector CW-2 also investigated the instant case i.e FIR No. 528/2013 and the case against Ghulam Mustafa i.e FIR No. 529/2013 and during his deposition he had stated as:

“It is correct that I also inspected the place of occurrence. It is correct that I also joined the people of locality in my investigation at the place of recovery. It is correct that I found in my investigation that Javed Husain was apprehended from the house of Ghulam Mustafa accused. It is correct that CPO directed me that I should put up clear cut opinion regarding the case. It is correct that I joined the accused Ghulam Mustafa in my investigation. It is correct that recovery was affected from the house of Ghulam Mustafa accused in both the case FIRs No. 528/13 and 529/13. It is correct that I have also mentioned in my case dairy that Challan of the case is pending before the Hon’ble Court, therefore, accused Javed Hussain further established his innocence in the Court also. “

12.  In awake of the deposition of both the Investigating Officers that the alleged contraband substances alleged to had been recovered from the appellant while riding on a motor cycle and passing through the Chowk Qazafi and the police apprehended him recovered alleged contraband and challaned him in the alleged occurrence. On the same day another case FIR No. 529/2013 was registered against Ghulam Mustafa alleging that the alleged narcotic substance had been

recovered from his house, whereas during investigation it came to light that the appellant arrested from the house of Ghulam Mustafa, was invited by said Ghulam Mustafa with his family and was available there at the time of raid. The narcotic substance was recovered from the house of Ghulam Mustafa and entangled the appellant from the place of occurrence, which was not in exclusive possession of the appellant. In this view of the matter the appellant could not be connected with the alleged recovery of narcotic substances. The prosecution has failed to bring home guilt of the appellant beyond reasonable shadow of doubt. We have no other option except to allow the instgant appeal filed by the appellant.

13.  In review of what has been discussed above, the Appeal No. 516 of 2015 filed by the appellant Syed Javed Hussain is allowed, his conviction and sentence awarded by the learned trial Court are set aside and he is acquitted of the charge. He is directed to be released from jail forthwith, if not required to be detained in connection with any other criminal case.

(A.A.K.)          Appeal allowed

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