2022 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

This appeal is directed against the judgment dated 30.05.2019, passed by learned Sessions Judge/Model Criminal Trial Court, Tando Muhammad Khan in Special Case No.37 of 2018, arisen out of Crime No. 233 of 2018, registered at Police Station Tando Muhammad Khan, under section 9(c), Control of Narcotic Substances Act, 1997, whereby the appellant Muhammad Younis has been convicted under section 9(c) of CNS Act, 1997 and sentenced to suffer RI for 06 years and 06 months and to pay the fine of Rs.30,000/-. In case of default in payment of fine he was ordered to suffer simple imprisonment for 06 months more. Benefit of section 382-B, Cr.P.C. was also extended to the accused.

2. Brief facts of the prosecution case are that on 15.09.2018 at 1930 hours, a police party headed by SIP Muhammad Ismail Mashori of Police Station Tando Muhammad Khan, while patrolling at different places, on receipt of spy information apprehended the accused Muhammad Younis from the Otaq situated at Old Matli Bus Stop and secured one black coloured shopper from his possession, which was found containing five pieces of charas. On weighing, the contraband item came 3006 grams. Thereafter, the contraband item, as stated above, was sealed and memo of arrest and recovery was prepared on the spot in presence of mashirs. Then accused and case property were brought at police station where FIR was lodged by the complainant on behalf of the State under section 9(c), CNS Act.

3. During investigation, Investigating Officer recorded 161, Cr.P.C. statements of the PWs. Recovered substance was sent to the chemical examiner, wherefrom positive chemical report of the said contraband/sample as that of Charas was received. On the conclusion of investigation challan was submitted against the accused for offence under section 9(c) of CNS Act, 1997.

4. Trial Court framed charge against accused at Ex.3 under section 9(c) of CNS Act, 1997, to which, accused pleaded not guilty and claimed to be tried. At the trial prosecution examined PW-1 complainant SIP Muhammad Ismail Mashoori at Ex.4, who produced Roznamcha entry No.28 showing departure of police party at Ex-4-A, mashirnama of arrest and recovery at Ex.4/-B, Entry of property register No.19 at Ex.4 C, FIR at Ex.4-D, arrival entry No.31 at Ex.4-E, letter to Chemical Examiner at Ex.4-F and Chemical Examiner's report at Ex.4-G. He also produced charas in sealed parcel as Article-1 and cash of Rs.15,000/- in sealed envelope as Article-2. Thereafter, prosecution examined PW-2 PC/mashir Dildar Ali at Ex.5; PW-3 PC Junaid at Ex.7; then the prosecution side was closed at Ex.8.

5. Statement of accused was recorded under section 342, Cr.P.C. at Ex.9. Accused denying prosecution allegations claimed his false implication in this case. However, he did not examine himself on Oath. He produced photocopy of FIR No.180/2011 of Police Station Tando Muhammad Khan City and other documents etc, as well examined two witnesses in his defence.

6. We have carefully heard Mr. Nisar Ahmed Durani, learned advocate for appellant, Miss Sana Memon, Assistant Prosecutor General and scanned the entire evidence available on record.

7. Mr. Nisar Ahmed Durani, learned advocate for appellant has mainly contended that prosecution case is highly doubtful; that despite this is a case of spy information and the place of incident was located at busy spot, yet, none from public was joined as mashir to attest the arrest and recovery; there are material contradictions in prosecution evidence, hence it cannot be relied upon; that as per prosecution case the sample was received by Chemical Examiner on 18.09.2018 through PC Junaid with delay of 03 days as the appellant/accused was arrested on 15.09.2018, hence tampering with the case property during such period could not be ruled out. Lastly, he argued that accused has been involved in this case falsely. In support of his contentions, learned counsel for the appellant relied upon the cases of Ikramullah and others v. the State (2015 SCMR 1002) and Tariq Pervez v. State (1995 SCMR 1345).

8. On the other hand, Miss Sana Memon, Assistant Prosecutor General, Sindh opposed the contentions raised by learned counsel or the appellant however, she could not controvert that there is delay of 03 days in sending the parcel to Chemical Examiner.

9. At the outset, we can safely say that such like cases could only be justiciable if the status of the recovered articles is shown to be 'contraband articles'. It is not the recovery of some articles which makes him liable for prosecution under the 'Act' but possession of those articles only which have been detailed in the 'Act' as 'narcotics'. Thus, a positive and legal 'chemical report' is a 'must' for trial of one for such 'charge'. It may well be said that determination of status of 'narcotics' is never dependent upon words/claims of police officer but always requires certification by an expert. Needless to add that a positive and legal report alone would only make the charge justiciable but shall never be sufficient to record conviction because it only proves status, of recovered articles and can never point out the person from whose possession or from where it was recovered. These shall always require proof from prosecution in the manner as required by law itself. The legislatures did recognize such fact so while framing Control of Narcotic Substances (Government Analysts) Rules, 2001 it was insisted that such report shall indicate complete protocol thereby detailing the tests, applied to determine the sample, so received for chemical analysis. We may add here that since report could only determine status of sample hence burden to establish safe custody from time of its recovery till receipt thereof in office of Chemical Analyzer shall be on prosecution. The relevant rules first came into discussion in the case of Ikramullah v. State 2015 SCMR 1002 and it was observed as:- 4. .......According to Rules 5 and 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 a complete mechanism is to be adopted by the Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to the necessary protocols and mentioning the tests applied and their results but in the case in hand we note that no protocol whatsoever was mentioned in the report submitted by the Chemical Examiner had concluded that the samples sent to him for examination contained charas.....A bare book 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 had also not 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 "the prescribed 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. 5. .... It is not disputed that the investigating officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had 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 substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit. (underlining is for emphasis) In above, it was categorically held that if the report is not so prepared, as required by law, then it would not qualify as 'conclusive proof' of recovered articles as narcotics. It may safely be added here that in absence of a conclusive proof of status of articles, claimed as narcotics, it would never be safe to record conviction. In another case of State v. Imam Bakhsh 2018 SCMR 2039, the honourable Apex Court while dealing with similar question, decided number of matters while holding as:

20. We conclude that Rule 5 of the Rules is directory while Rule 6 is mandatory to the extent that the full protocols ought to be mentioned in the Report of the Government Analyst. Non compliance of Rule 6, in this context, will render the Report of the Government Analyst inconclusive and unreliable. The representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory.

21. In all the above appeals we have observed that there has been bon-compliance of Rule 6 to the extent of absence of the full protocols of the tests applied. Additionally, in Criminal Appeals Nos.523-525 of 2017 and No.22 of 2018, safe custody and safe transmission of the seized drugs had also not been established.

22. For the above reasons, the main Appeals Nos.523, 494, 452 of 2017 and Nos.22 and 51 of 2018, against acquittal are dismissed. As a consequence Criminal Appeal No.525 of 2017 and petition No.94-Q/2017 for forfeiture of property, are also dismissed. In most recent case of Khair-ul-Bashar v. State (2019 SCMR 930), the honourable Apex Court responded to plea, so raised with reference to case of Imam Bakhsh, as under:- "6. .... Regarding the objection that Imam Bakhsh may overturn hundreds of convictions, it is pointed out that the sole purpose of this Court is to dispense justice in accordance with law and it matters less if one or many convictions are overturned because of the correct interpretation and application of the law. Imam Bakhsh purposively interprets the Act and finds Rule 6 to be a mandatory provision regarding information to be reflected in the Report of the Analysis. Hence, the argument that Imam Bakhsh is per incuriam, is hopelessly misconceived and rejected. For completion of record it is pointed out the review filed in Imam Bakhsh was dismissed vide an earlier order dated 06.02.2019." The above principles, so enunciated by honourable Apex Court, are sufficient to safely conclude that a defective report couple would alone be sufficient to record an acquittal and if there is also a failure of prosecution in establishing safe transmit of sample then other merits of the case would be of no significance for prosecution to insist conviction. Proving of these two alone, however, would not be sufficient for conviction unless manner of recovery thereof is proved least initial burden is so discharged. Before applying above principle, it would be conducive to refer Paragraph No.5 of judgment dated 08.04.2019 passed by Honourable Supreme Court of Pakistan in the case of Khair-ul-Bashar supra which is that:-

5. Section 36(1) of the Act also mandates that the Report must be in the prescribed form. This Court, in Ikramullah, while discussing the scope of Rule 6 of the Rules held that "...a complete mechanism is to be adopted by the Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to the necessary protocols and mentioning the tests applied and their results ...Section 36 of the Control of Narcotic Substances Act, 1997 requires a Government Analyst to whom a sample of recovered substance is sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in "the prescribed 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." A signed report in the prescribed form under section 36(1) of the Act does not refer to FORM-II, as argued by the DPG, but to the form, structure, design and content of the Report provided in the Rules. This is also so because the Act was promulgated on 11.07.1997 while the Rules were framed and gazetted on 28.11.2001 under the title of Control of Narcotic Substances (Government Analysts) Rules 2001, almost after four years. Therefore, FORM-II was not known to the legislature at the time of the promulgation of the Act, hence section 36(1) simply required that the structure and content (form) of the Report must be as provided in the Rules. FORM II, hereunder, is a manifestation of Rule 6 but does not have a stand alone existence. FORM II (See rule 6) CERTIFICATION OF THE TEST OR ANALYSIS BY FEDERAL NARCOTIC TESTING LABORATORY GOVERNMENT ANALYST

1. Certified that the sample bearing on _____ purporting to be sample of ______ received on ______ with memorandum No. _____ dated ______ from _____ has been tested/analyzed and the result of each test/analysis is stated below:

2. That the condition of the seal on the packet on receipt was as follows; Satisfactory/Unsatisfactory/None.

3. In the opinion of the undersigned the sample is as defined in the section 2 of the CNS Act, 1997.

4. DETAILS OF THE RESULTS OF TESTS/ANALYSIS: Sample No. ___________________ Gross Wt : ______________ Net Wt: FIR No. ______________ Dated _________ Accused Physical Examination Conclusion NOTE: In case of mixture the %age of each Alkaloids, Opium derivatives, Opiates, Cannabis, Drugs of abuse and the synthetic compounds are as follows: The sample identified ________ as ___________ and contain % Signature of Government Analyst Federal Narcotics Testing Laboratory Signature of any other authorized officer of Laboratory The general head of DETAILS OF THE RESULTS OF TESTS/ANALYSIS provides only for Physical Examination and Conclusion, and does not mention of tests or their results. This would hardly be of any significance unless the Report provides the information required under Rule 6 in order to establish the culpability of the accused. Hence, for the Report to serve the purposes of the Act and the Rules, it must contain (i) the tests and analysis of the alleged drug (ii) the result of each test(s) carried out and (iii) the test protocols applied (the name(s) of protocols applied) to carry out these tests. It is important to underline that protocols are an intrinsic part of the tests and analysis. A test conducted without following the protocols does not pass for a test or meet the requirement of Rule 6.

10. The proforma is provided in judgment itself. We have perused the impugned judgment and paper book. The chemical report of narcotics in question, is that:- REGISTERED A/D CONFIDENTIAL Lab. No.926 Karachi Dated12.03.2019 C. 4726/18 DIRECTOR LABORATORIES AND CHEMICAL EXAMINER TO THE GOVERNMENT OF SINDH, KARACHI Report on One sealed Parcel Sent by SHO P.S T.M.KHAN, DISTT: T.M.KHAN ______ and Received On 18.09.2018 as per his letter No. Cr-233/18 Dated by the hand of PC-JUNAID Discrepancy __________________________________________ __________________________________________________ MODE IN WHICH THE PARCEL WAS/WERE FOUND TO BE PACKED ON RECEIPT DESCRIPTION OF SEALS One sealed white cloth parcel with (03) seals, seals perfect and as per copy sent. COPY OF LABEL ON THE PARCELS Crime No. 233/18 Under section 9(c), CNSA. Accused: M.YOUNUS BHATTI S/O M.JUMAN. Case Property: 3006 gm chars. Signature of I/O: SI-PS. T.M.KHAN. Signature of witness: (1) PC-DILDAR ALI (2) PC-SHER ALI. DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL Parcel containing black plastic shopper contains five greenish brown hard diff: sizes pieces broken into fragments with smell of chars only two big pieces wrapped in plastic panni and tape. TEST PERFORMED

1. Weight: (i) Gross weight: 3006 gm (ii) Net weight: 2970 gm

2. Physical Appl. Greenish brown hard pieces

3. Smell: of Charas

4. Micro Scope Exam: Horn/claw shape trichomes of cannabis plant seen.

5. Chemical Test Performed:- Resin test of cannabis and fast blue B. Salt test:-Positive

6. Content Consumed:- (10) gm Consumed from each piece in analysis, remaining case property duly sealed is to be collected from this office. RESULT OF EXAMINATION The above parcel contains charas pieces Sd/- Sd/- EXCISE-II SECTION (DR. NOUSHABA ZAFAR) CH. EX GOVT: OF SINDH DIRECTOR LOBARATORIES AND CHEMICAL EXAMINER TO THE GOVERNMENT OF SINDH, KARACHI Note: The articles, if their return is not asked for within a fortnight after the receipt of this report are liable to be destroyed.

11. Perusal of the above, reflects that such report is lacking the requirement as emphasized in rules and judgment of the apex Court concluded in case of Khair-ul-Bashar supra as:- "10. ..... As a conclusion, it is reiterated, that the Report of the Government Analyst must mention (i) all the tests and analysis of the alleged drug (ii) the result of each test(s) carried out along with the consolidated result and (iii) the name of all the protocols applied to carry out these tests. Thus, such report legally cannot qualify the term of conclusive proof of allegedly recovered articles as narcotics. Further, in instant report, seal parcel number column is vacant as well in column of letter number crime number is shown, date is not available. Besides, recovery was effected on 15.09.2018 and same was sent with delay of three days on 18.09.2018. Per available record, the prosecution has not succeeded in establishing safe transmit after three days by detailing safe custody thereof during such period.

12. Though legally the defective chemical report coupled with failure to establish safe transmit of sample/property is sufficient to record acquittal, however, the record also shows that prosecution case is that they caused raid at a gambling party which is a house and recovered a suspected shopper which was lying adjacent to the appellant hence constructive possession is lacking in this case as well as prosecution has failed to substantiate that the place was owned by the appellant. Needless to mention that in every criminal case prosecution is duty bound to establish its case beyond shadow of any reasonable doubt and a single dent in the prosecution case entitles the accused for acquittal. Here mandatory provision is not followed as well case is not free from doubt hence the instant appeal was allowed by our short order dated 09.07.2019 and these are the reasons whereof.

13. While parting, it would be conducive to direct P.G. Sindh that he shall take necessary steps by ensuring that compliance of apex Court's judgment referred hereinabove in its letter and spirit with regard to property and reports in the laboratory, so that there be not failure of prosecution case on this count alone which, otherwise, declared as fatal. JK/M-182/Sindh Appeal allowed.