2019 PLP 925 (YLR)

FAROOQ HAIDER, J.

This appeal has been filed against the judgment dated 01.06.2016 passed by the Judge, Special Court CNS, Lahore, whereby in case arising out of FIR No.41/2013 dated 30.10.2013 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station RD ANF, Lahore (Ex.PA), the learned trial Court has convicted and sentenced the appellant as under:-- under Section 9(c) of Control of Narcotic Substances Act, 1997 to 11 years R.I. with fine of Rs.1,30,000/- and in default of payment thereof the appellant was directed to further undergo S.I. for 11 months. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Briefly case of prosecution is that on 30.10.2013, after receipt of secret information that international smugglers of narcotics namely Zahid Khan and Muhammad Arshad will try to smuggle Heroin in huge quantity through Qatar Air Way from Allama Iqbal International Airport to Tanzania, special checking team including Mujtaba Mehdi SI/ complainant, Imran Bashir, Muhammad Azhar, Constables, Ashiq Hussain, Khurram Ali, Driver Mazhar and spy/ secret informer, under supervision of AD Sahib Khan at 12.45 a.m. (night), on pointing out of secret informer, apprehended Muhammad Arshad standing at the gate of Royal Shed of Allama Iqbal International Airport with an envelope in his right hand; from which consignment Airway Bill No.157-20161304, under-taking about narcotics and other documents total seven pert ( ) were recovered; on interrogation regarding above mentioned consignment, Muhammad Arshad disclosed that consignment is in Royal Shed and Heroin is present in two cartons; on pointing out of Muhammad Arshad, forty five cartons, laying in Royal Shed, were opened from which footballs were recovered; from further checking of cardboard ( ) cartons, it was found that in two cardboard cartons Heroin (white colour) was concealed in highly skilled manner, which was taken up and weighed, the same was found as 3.5/3.5 kilograms each i.e. total seven kilograms; from recovered Heroin 10/10 grams Heroin was separated as sample into two separate sealed parcels whereas remaining Heroin was also sealed into two parcels. All these four parcels along with other case property mentioned above were taken into possession vide separate recovery memos. During search of the accused, his Identity Card and other relevant documents were found, which were also taken into possession vide separate recovery memo. Mujtaba Mehdi SI after preparing relevant recovery memos mentioned above drafted complaint/Fard Bayan Ex.PE at 9.30 a.m. (day) and sent the same to Police Station RD ANF Lahore, for formal registration of the case.

3. The appellant was challaned to the Court, he denied the charge and claimed trial, hence prosecution produced its evidence, then Court also examined three Court witnesses, whereafter the appellant was examined under Section 342 Cr.P.C., during which the questions arising out of the prosecution evidence were put to him but he denied almost all such questions and pleaded his false involvement in the case but he did not opt to lead any evidence in his defence or make statement under Section 340(2) Cr.P.C. Finally, the impugned judgment was passed in the afore-mentioned terms.

4. Arguments advanced by the learned counsel for the appellant as well as Special Prosecutor for ANF have been heard and the record has been perused.

5. It has been noticed that occurrence took place at 12:45 a.m. (night) on 30.10.2013 whereas complaint Ex.PE was prepared at 9.30 a.m. (day) on 30.10.2013 after unexplained delay of about eight (08) hours and forty-five (45) minutes, this delay raises eyebrows qua veracity of the case and signals towards consultation, concoction, inducement and procurement on the part of prosecution in this regard. It has also been observed that it is case of the prosecution that forty five cartons were checked but only footballs were found therein, however, on further checking from two cartons (made by cardboard/ ) Heroin was found, which was concealed in the same with high skill but said two cartons were not separately taken into possession. In this regard, operative portion of cross-examination of PW-4 Mujtaba Mehdi Inspector is being reproduced:-- "I have not separated two cartons from where the heroin was recovered from the remaining 43 cartons " We have also noticed that it is the case of the prosecution that samples were transmitted to the office of Government Analyst i.e. National Institute of Health, Islamabad but safe custody and transmission in this regard could not be proved by the prosecution because on the one hand PW-1 Muhammad Shafique ASI deposed during his evidence before the Court that on 30.10.2013 he received sample parcels and then handed over the same to Umer Daraz Constable for depositing in the office of National Institute of Health, Islamabad; said Umer Daraz while appearing as PW-3 also deposed on the same lines, however, Mujtaba Mehdi Inspector/ complainant while appearing as PW-4 clearly deposed in his statement before the Court, "I transmitted sealed sample parcels of narcotics to NIH, Islamabad" whereas reports of Government Analyst i.e. National Institute of Health, Islamabad (Ex.PG/1-2) reveal that samples were received by National Institute of Health, Islamabad FROM Incharge PS RD Anti-Narcotics Force House No.36-C, Khalid Lane, Sarwar Road, Lahore Cantonment, "By Hand". Now the question does arise that if complainant Mujtaba Mehdi Inspector (PW-4) handed over samples to Moharrir and he handed over the same to Umer Daraz (PW-3), who delivered the same in National Institute of Health, Islamabad, then it means that after receiving sample parcels from the complainant, Moharrir never handed over the same back to complainant rather himself got deposited the same through Umer Daraz Constable (PW-3) and this aspect falsified the claim of complainant that he transmitted the sample parcels to National Institute of Health, Islamabad; furthermore reports of National Institute of Health, Islamabad Ex.PG/1-2 did not confirm the stance of Muhammad Shafique (PW-1), Umer Daraz Constable (PW-3) and Mujtaba Mehdi Inspector/complainant (PW-4) that either of them deposited or transmitted the sample parcels to National Institute of Health, Islamabad because said reports clearly depict that parcels were received "by hand" from Incharge PS RD Anti-Narcotics Force House No.36-C, Khalid Lane, Sarwar Road, Lahore Cantonment. It is also important to mention here that said Incharge PS RD Anti-Narcotics Force has never appeared before the Court to depose that when and how sample parcels reached to him or he by hand delivered said parcels in the office of National Institute of Health, Islamabad. In this backdrop, "safe custody and transmission of sample parcels" in the instant case could not be proved, which is fatal blow for the case of prosecution. In this regard, guidance has been sought from the case of "Ikramullah and others v. The State" (2015 SCMR 1002). Relevant portion of paragraph No.5 of the said judgment is being reproduced:-- "

. In this view of the matter the prosecution hand 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" (emphasis added). In this regard, further guidance can also be sought from the case of "The State through Regional Director ANF v. Imam Bakhsh" (2018 SCMR 2039), relevant portion whereof is being reproduced below:-- "Chain of Custody - Safe custody and safe transmission

9. We have noted above that in Criminal Appeals Nos.523 to 525/2017 and No.22/2018, safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory. This chain of custody, is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the Report of the Government Analyst becomes doubtful and unreliable. 20.

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" In this regard, in another recent pronouncement dated 13.09.2018 delivered by Full Bench of august Supreme Court of Pakistan in case of Abdul Razzaque v. The State (Criminal Review Petition No.69 of 2018 in Jail Petition No.301 of 2014) matter has been settled once for all in the following words:-- "It has already been held by this Court in the case of Amjad Ali v. The State (2012 SCMR 577) and Ikramullah and others v. The State (2015 SCMR 1002) that in a case where safe custody of the recovered substance or safe transmission of the samples of the recovered substance is not proved by the prosecution there an accused person cannot be convicted in such a case. This aspect of the case had escaped attention of this Court at the time of passing the order under review"

6. Now coming to another vital aspect of the case i.e. proving that allegedly recovered contraband material is narcotic. In this regard, we have noticed that in reports of Government Analyst i.e. Ex.PG/1-2 no protocols of the tests have been mentioned, which fact makes said reports "inconclusive and renders them invalid and not reliable for the purpose of conviction in this case". In this regard, guidance has been sought from the case of "Ikramullah and others v. The State" (2015 SCMR 1002) and relevant portion whereof is being reproduced below:-- "4.

. We have particularly noticed that the report submitted by the Chemical Examiner (Exhibit-P.W.2/5) completely failed to mention the basis upon which the Chemical Examiner had come to a conclusion that the samples sent to him for examination contained charas. 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 and no test was referred to on the basis of which the Chemical Examiner had concluded that the samples sent to him for examination contained charas. In the context of the present case Rule 6 is of paramount importance and the same is reproduced below:-- "Report of result of test or analysis. After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II" A bare look at the report submitted by the Chemical Examiner in the present case shows that the entire page not only substantially kept blank but the same had 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" Guidance can also be sought on this aspect from the dictum laid down in the case of "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039) and relevant portion is being reproduced below:-- "

15. Rule 6 on the other hand stands on a different statutory footing. It provides that the Report of the Government Analyst, after the test and analysis, is to furnish the result together with full protocols of the test applied. The accuracy of test and analysis and the correct application of the full protocols alone can determine if the recovered substance is a narcotic drug or a psychotropic or controlled substance. "Protocol" 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" include 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.

16. Non-compliance of Rule 6 can frustrate the purpose and object of the Act, i.e. control of production, processing and trafficking of narcotic drugs and psychotropic substances, as conviction cannot be sustained on a Report that is inconclusive or unreliable. The evidentiary assumption attached to a Report of the Government Analyst under section 36(2) of the Act underlines the statutory significance of the Report, therefore details of the test and analysis in the shape of the protocols applied for the test become fundamental and go the root of the statutory scheme. Rule 6 is, therefore, in the public interest and safeguards the right of the parties. Any Report (Form-II) failing to give details of the full protocols of the test applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a Report of the Government Analyst under Section 36(2). Resultantly, it will hopelessly fail to support conviction of the accused. This Court has already emphasized the importance of protocols in Ikramullah's case (supra).

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.

"

7. As far as contention of learned Special Prosecutor for ANF that relevant law does not require mentioning of protocols of test applied in report of Government Analyst and case law has only emphasized for the same, which has to be followed in future only, is concerned, we have noticed that said contention is without any force and complete reply in this regard is available in Section 36 of the Control of Narcotic Substances Act, 1997 and Rule 6 of the Control of Narcotic Substances (Govt. Analysts) Rules, 2001, which are reproduced below for ready reference:-- Section

36. Reports of Government Analysts.

(1) The Government Analyst to whom a sample of any narcotic drugs, psychotropic substance or controlled substance has been submitted for test and analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed. (2) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive" Rule 6 Report of result of test or analysis. After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II. Needless to observe that through precedents, legislation is never introduced/done rather interpretation of the relevant provisions of law is done by the Courts; it is crystal clear that in the aforementioned case law, wherein mentioning of the protocols of the test applied by Government Analyst in report has been held as necessary, is simply interpretation of Section 36 of the Control of Narcotic Substances Act, 1997 and Rule 6 of the Control of Narcotic Substances (Govt. Analysts) Rules, 2001. Thus, above mentioned contention of learned Special Prosecutor for ANF is repelled with full force. Nutshell is that when reports of Government Analyst i.e. National Institute of Health, Islamabad (Ex.PG/1-2) in the instant case did not contain protocols of the test applied, then prosecution even could not prove that allegedly recovered contraband material was heroin or any other narcotic, so, said reports are neither conclusive nor reliable for the purpose of conviction.

8. In view of above, we have reached at the conclusion that prosecution in the instant case could not prove prompt registration of case, and also could not separately point out before the Court about cartons of cardboard ( ) from which Heroin was allegedly recovered; safe custody and transmission of representative samples to Government Analyst also could not be proved. Similarly prosecution also could not prove through reports of Government Analyst that allegedly recovered contraband was heroin or any other narcotic because said reports were not containing detail of protocols of the test applied. Thus, prosecution has failed to prove its case against the appellant. In this scenario, there is no need to discuss defence version.

9. Resultantly, instant appeal is allowed, conviction and sentence recorded against the appellant through the impugned judgment dated 01.06.2016 passed in case arising out of FIR No.41/2013 dated 30.10.2013 registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station RD ANF, Lahore, are hereby set aside. The appellant is acquitted of the charge, he shall be released forthwith if not required in any other case. SA/M-19/L Appeal allowed.