2004 PLP 542 (MLD)

18. The third proviso provides that the sample taken under the second proviso from the property shall be deemed to be the whole of the property in an inquiry or proceedings in relation to such offence before any authority or Court.

19. For the purpose of present case the second and third provisos are relevant. In the second proviso following facts are essential: (a) A discretion has been vested in the Court to destroy the property. (b) The Court has to exercise such discretion on an application or of its own motion. (c) The Court is required to take a sample or samples from the whole property before its destruction. (d) The Court is required to take, the sample or samples of the whole property and cause destruction of the remaining property under its supervision and control. The meanings of the words "Supervision", "Control" and "Cause" have been given in various dictionaries and superior Courts' judgments. Some of them are as under:‑‑ (i) "Supervision" Black's Law Dictionary: Supervision. An act of occupation of supervising; inspection American Heritage Talking, Dictionary: Supervision. The act, process, or function of supervising. The word supervision has been derived from word "supervise". Its meaning, as per Chambers 21st Century Dictionary, is as under: "Supervise 1. verb to be over all incharge of (employees, etc) to oversee (a task, project, etc)." The word "supervision" has been defined in Judicial Dictionary 13th Edition by K.J. Aiyar as under: "Supervision, in the ordinary dictionary sense, `to supervise' means to direct or oversee the performance or operation of an activity and to oversee it, watch over and direct. It is work under eye and gaze of someone who can immediately direct a corrective and tender advice. In the textual sense `supervision' of the principal employer or his agent is on `work' at the places envisaged and the word `work' can neither be construed so broadly to be final act of acceptance or rejection of work, nor so narrowly as to be supervision at all times and at each and every step of the work. When the employee is put to work under the eye and gaze of the principal employer, or his agent, where he can be watched secretly, accidentally, or occasionally, whole the work is in progress, so as to scrutinize the quality thereof and to detect faults therein, as also put to timely remedial measures by directions given, finally leading to the satisfactory completion and acceptances of the work, that would be supervision for the purpose of S.2(9) of the Employees State Insurance Act 1948 (CESC Ltd v. Subhash Chandra Bases (1992)] SCC 441‑454, AIR 1992 SC 573). (ii) "Control" Black's Law Dictionary: Control, v. To exercise restraining or directing influence over. To regulate; restrain; dominate; curb; to hold from action overpower; counteract; govern. American Heritage Talking Dictionary: Control,

1. To exercise authoritative or dominating influence over; direct. 2. to hold in restraints, check, The word `control' has been defined in the Judicial Dictionary 13th Edition by K.J Aiyar as under: "The word `control' is synonymous with superintendence, management or authority to direct, restrict or regulate. [Shamrao Vithal Cooperative Bank Ltd. v. Kassargod, Pandhuranga, Mallaya 1972 UJ (SC) 204)" The word "control" has been defined by the Hon'ble Supreme Court of Pakistan in a case of G. Rasool v. M. Hayat (PLD 1984 SC 385) as under: "A comprehensive term, of well‑understood, meaning, having various significations and subject to different limitations, but having no legal or technical meaning distinct from that given in the popular acceptation. It has been said that, when broadly used, the term may embrace every form of control, actual or legal, direct or indirect, negative or affirmative, and under particular circumstances, has been held to import complete control of the full or unqualified right to control and direct legal control, potential control, potential control or direction, or the right of control as distinguished from actual physical control." (iii) "Cause" Concise Oxford dictionary Ninth Edition: "Cause:‑ n.1. a that which produces an effect, or gives rise to an action, phenomenon, or conditions. b. a person or thing that occasion something. c. a reason or motive; a ground that may be held to justify the same. thing. v. tr. 1. be the cause of, produce, make, happen. " (e) A procedure has been provided for the destruction of property, (f) the Court is required to issue a certificate in that behalf; The word "certificate" has been defined in Chamber's 21st Century Dictionary as under:‑‑ "Certificate noun. An official document that formally acknowledges or witnesses a fact." (g) The purpose of taking out the sample or samples from the whole of the property is to produce the sample or samples before the Court ordering destruction or any other Court as a case property in lieu of the whole property.

20. The third proviso shows that on the production of such sample before the Court in relation to the inquiry of proceedings of the offense, the sample will represents he whole property as if the whole property has been produced in the Court.

21. It is pointed out that generally entire property secured or seized by the investigation agencies is required to be produced in the Court but the second and third provisos to section 516‑A, Cr.P.C. are exceptions to the general rule. Thus the discretion vested in the Court under the second proviso is to be exercised judicially by giving notice and after taking into consideration the points raised by the parties and safeguarding their valuable rights.

22. The procedure provided under the second proviso should not be taken lightly or merely a formality but it should be strictly construed and applied for the simple reason that the accused might claim that the property is not a narcotic substance or that the property is not tallying with the Mashirnama of recovery or the evidence produced in the Court, or that the property may be sent to the chemical analyser for examination and report etc. Thus if the required procedure is not adopted for destruction of the property then the accused might be prejudiced in his defence or his valuable and legal rights may be taken away. In such a situation the law is very clear that the penal provision should be strictly construed.

23. With regard to procedural requirement of the Criminal Law the Hon'ble Supreme Court of Pakistan in a case Abdul Sattar v. Crown reported in PLD 1953 FC page 145 and at page 169 has observed as under: ‑‑ "Procedural requirements of the criminal law are not mere formalities. Underlying the rules of procedures is an all pervading care to ensure the liberty of the subject and the due dispensation of justice. Certain observation appearing in a number of judgments cited during the argument in this case appear to me to be likely to defeat this purpose by undue enlargement of the powers of Magistrates on the basis of assumptions which are not well founded in law. Some of these views may be interpreted so as to enlarge the powers of a transferee Magistrate beyond those with which he is invested e.g. to take cognizance on his own information or suspicion, of an offence appearing in the course of a pending proceedings, although he is not empowered to take cognizance in this manner. The rights of accused persons are also placed in jeopardy as a result of the acceptance of such views, e.g. where on certain assumptions, a Magistrate who clearly takes cognizance of an offence otherwise than on the basis of a complaint or a police report, may yet be regarded as not taking cognizance on his own information or suspicion, and in consequence, the right of the accused to object to being tried by the person who was the first to form the opinion that facts existed showing that he had committed any offence, is taken away. Any of the law which leads to consequence of this kind must in my opinion be rejected. It would violate for fundamental principle that penal laws must be interpreted strictly, and in favour of the subject not so as to drive him of his legal‑rights." (Underlined is ours to give emphasis)

24. Even otherwise it is well‑settled principle of law that if a particular thing is required to be done in a particular manner then it should be done in that manner or it should not be done at all.

25. In the present case, on 11‑12‑2000, Ahmed Saba Deputy Directory (Law) ANF, Karachi, moved an application for destruction or case property viz. 200 Kgs. of Hashish. On the said application, without giving notice to the appellant but after hearing Special. Prosecutor, the trial Court passed an order for the destruction of the property. The operative part of the order is as under: "It is, therefore, directed that 10 samples of 200 grams each packet be taken out from total substance recovered by the complainant lying at Police Station Regional District, ANF in bag and the same be sealed in presence of undersigned and rest substance be destroyed in presence of the undersigned."

26. Under section 14 Anti‑Narcotic Force Act, 1997, the Deputy Director of the ANF has been declared as ex officio public prosecutor but he cannot conduct the proceedings of the narcotic cases in the Court and deal with any matter connected therewith or ancillary thereto without specifically directed to do so by the Director General. Section 14 of Anti‑Narcotic Force Act, 1997 reads as under:‑‑ "Member as Public Prosecutors.‑‑‑Notwithstanding anything contained in the Code, all Directors, Deputy Directors and Assistant Directors of the Force, shall be ex officio public prosecutors in respect of all offences relating to narcotic and specified in clause (a) of section 5, for trial before the Special Court or any other Court when so, directed by the Director- General and may conduct the proceedings in the said Court and deal with any matter connected therewith ancillary thereto."

27. No authority of Director General was produced before the trial Court empowering Ahmed Saba, Deputy Director (Law) Anti‑Narcotics Force, Karachi to move the application for the destruction of the property which is the matter connected and ancillary to the proceedings of the case.

28. Be that as it may, the application was granted on the same date without notice to the accused or hearing him. Further more, the official of ANF did not comply with the order of the trial Court in letter and spirit as the samples were neither taken nor sealed in the presence of the learned Judge nor the remaining property was destroyed in his presence As such, the learned Judge was not able to issue the required certificate as provided under section 516‑A, Cr.P.C. This shows that the ANF Authorities had not only violated the order of the trial Court but disobeyed the directions of the law as provided under section 516‑A, Cr.P.C. with the result that a valuable piece of evidence was destroyed which has ultimately benefited the accused and has been saved from the clutches of law.

29. It has been noticed that the prosecution produced samples of Charas allegedly obtained from the whole property before the trial Court, as Article "B". It has been pointed out that the said samples were neither taken in presence of the learned Judge of Special Court Narcotics nor destroyed the remaining property in. his presence, as such, the required certificate under section 516‑A, Cr.P.C. was not issued by the Court. In such situation, the prosecution was required to prove through evidence that property article "B" was sample of the whole property and the remaining property was destroyed.

30. But, no person from Anti‑Narcotic Force was produced before the trial Court, for giving evidence that the samples as per law and order of the trial Court were taken in his presence or sealed or that the property was destroyed in his presence. The said persons would have been competent to have produced the sample in the Court in lieu of the whole property as required under section 516‑A, Cr.P.C. Both the P.Ws. have admitted that neither the samples were taken nor sealed nor remaining property was destroyed in their presence. But in spite of that, the trial Court allowed the P.W.1 to produce the said sample in Court as article `B'. In such situation, the P.W.1 was not competent to produce the said property. Furthermore, without examining the persons before whom the samples were taken and the remaining property was destroyed, the samples produced before the trial Court could not beheld to be the same property from which the samples were taken, or remaining property was destroyed. The certificate in terms of section 516‑A, Cr.P.C. issued by the Court would have only fulfilled the requirement of law and then only the samples produced in the Court would be deemed to be the whole property.

31. At one stage we also felt the necessity of sending the entire property to the Chemical analyser for examination and report so as to ascertain, whether the said property was Hashish or not. This necessity was felt in view of discrepancy appearing in the evidence of the prosecution witnesses and Chemical Analyser Report about the numbers of slabs but the Court could not do so because the samples article "B" were not proved to be the sample secured from the whole property of this case.

32. As regards the case of Sardar Pervez Akhtar (supra) relied by the learned Special Prosecutor ANF, the same is not applicable as the facts and circumstances of the said case are distinguishable from the facts and circumstances of this case. 33: After considering the material available on the record, we are of the considered view that the case of the prosecution is highly doubtful, therefore, the appellant is entitled for the benefit of doubt which is accordingly given to him. Consequently, the conviction and sentence awarded under the impugned judgment are set aside. The appellant is in custody. He should be released forthwith if not required in any other custody case. The appeal is allowed.

34. A copy of the judgment be sent to the Director General Anti -Narcotic Force to initiate inquiry, fix responsibility on the person/persons who had destroyed the property in violation of the order of the trial Court and provisions of section 516‑A, Cr.P.C. and for taking appropriate action as per law under intimation to this Court. N.H.Q./J‑1/K Appeal allowed.