1992 PLP 2072 (SCMR)

JUSTICE SHAFIUR RAHMAN (CHAIRMAN)‑‑‑Two separate appeals have been filed by the two convicts under section 13 of the Special Courts for Speedy Trials Ordinance, 1991 against a common judgment of the Special Court for Speedy Trials No. II, Lahore, dated 30th of May, 1992 whereby both the appellants were convicted under section 27(1)(a) of Drugs Act, 1976 and sentenced to undergo R.I. for three years and a fine of Rs.1,000 each or in default of payment of fine to undergo. R.I. for six months more.

2. The prosecution case against the appellants in brief was that Rizwan Ashraf, Drug Inspector (P.W.1) received information that a group of persons was manufacturing and marketing spurious drugs in Bhagatpura, Shad Bagh, Lahore. He contacted the C.I.A. Staff Qila Gujar Singh, obtained police help from there and in the company of Makhan Khan Inspector C.I.A. (P.W.4) raided the house in question. The room was bolted from inside. It was opened by Sharif, one of the co‑accused of the appellant who died a natural death after the registration of the case. One of the main culprits namely, Afzal Ashfaq managed to escape but three others namely, the two appellants and Sharif were apprehended. They were at that time engaged in preparing, filling and labelling the medicine Betnesol‑N. which on expert examination was found to be spurious drug.

3. At the trial four prosecution witnesses were produced to prove the case. Rizwan Ashraf, Drug Inspector appeared as the first witness. Haji Abdul Hameed (P.W.2) a Naib‑Qasid in the Office of the Director Health was a member of the raiding party. Muhammad Iqbal, A.S.I. (P.W.3) Police Station Shad Bagh registered the case on the complaint filed. Makhan Khan Inspector C.I.A. (P.W.4) conducted the raid alwongwith the Drug Inspector. The recoveries from the spot were as follows:‑‑-- "(i) Finished Betnesol‑N drops 7.5 MLB N9. 388010 purported to be M.F.D. BY: Glaxo Labs (Pak) Ltd., Karachi. (ii) Empty Cartons = 38900 of Betnesol‑N drops. (iii) Pamphlets (Inside Literatures) = 38900 of Betnesol=N drops. (iv) Labels of Betnesol‑N drops = 38900 of B.No. 388010, (v) Blue plastic drum containing solution of Betnesol‑N of approx‑40 Litres: One drum. (vi) Lotey? Two. (vii) Wooden Chokian? Four. (viii) Empty bottles (plastic) of capacity 7.5 ML each 38900."

4. The report of the Government Analyst with regard to the samples was as hereunder:‑‑ "DESCRIPTION.‑‑‑Colourless liquid, adulterated with particles. STERILITY TEST.‑‑‑Non‑Sterile. INDENTIFICATION:‑‑Neomycin Sulphate Not identified. RESULT.‑‑‑The above sample of Betnesol‑N Drops (7.5mi) for Eye, Ear or Nose, Batch No. 388()1(), is SPURIO(.IS. as it does not contain Neomycin Sulphate. It is also Non‑Sterile and is adulterated with particles."

5. Amjad denied his presence in the premises from where recoveries were effected and the raid was conducted. He denied his participation in the crime and gave an explanation as hereunder:‑‑ "I was arrested by the police 15days before the alleged raid and I was kept in a separate room. Thereafter, I was shown to the Drug Inspector. Police had arrested Afzal Ashfaq and his brother Azhar and a brother‑in‑law of Afzal Ashfaq known as Billa. Father‑in‑law of Afzal Ashfaq filed writ petition and the said three persons were released by the police ... ... ... .... ... .... ... .... ... ... ... ... . . I worked as a Welder. I wanted to go abroad. I obtained Passport for this purpose. I came to know that Afzal Ashfaq accused was sending persons to Middle East countries. He had set up his office at Chah Miran. I came to know that he had already sent Salim and Jehangir to Middle East countries. I contacted Afzal Ashfaq accused and asked him to send me abroad. He demanded Rs.20,000 for this. I handed over to him my Passport and Identity Card. I paid him rupees Twenty Thousand in cash through his maternal‑grand‑mother. He promised to get me visa after 15 days. I contacted him at the appointed day but he started potting me off. He made false promises to return the money. I contacted his father‑in‑law Jehangir who promised to return the money after few days. My cash was not returned. I picked up quarrel with Afzal Ashfaq. After great efforts, Afzal Ashfaq returned me my Passport and Rupees Five Thousand. He did not return my I.D. Card. After some time, he gave me his own I.D. Card and told me to keep his identity Card till such time that the balance of rupees Fifteen Thousand was paid back. He did not pay me the balance. I have produced his I.D. Card D.1 in this Court. I was arrested from the shop of Iqbal on Friday where I was working. I was taken to Anti‑Dacoity Staff where Afzal Ashfaq, Azhar and Billa were also there. Jehangir, father‑in‑law of Afzal Ashfaq filed writ petition and the police released them. Afzal Ashfaq was once convicted in counterfeit currency case. I have been involved falsely at the instance of Afzal Ashfaq," He produced a witness Iqbal Hussain (D.W.2) in defence who stated about whole time appointment of Amjad at his workshop as a Welder and his arrest from there. Muhammad Latif appellant also denied his presence or participation in the crime and he explained the case against him as hereunder:‑‑ "My father's sister resides in Miran De Khoi where Afzal Ashfaq absconder resided. My aunt told me that I should go abroad and work there and earn money as I have small children. I agreed to it. My aunt met grandmother of Afzal Ashfaq and my aunt paid Rs.15,000 for my visa to Middle East country. My aunt is also is my mother‑in‑law. This money, money was paid to Afzal Ashfaq accused through his maternal‑grand? mother. Afzal Ashfaq absconder usurped the said amount and he did not get me " visa. I have been involved falsely in this case at I was arrested from Dholanwal, on 30-6-1990. He produced a witness Muhammad Salim (D.W.1) it defence who stated that Latif used to work with him as an Electrician and that he was apprehended by the police for no reason and that he was not allowed to meet Latif at the Police Station. It was after fifteen days of his apprehension that this case against him was registered and he was implicated in it.

6. The trial Court on examining the entire evidence and the other material led at the trial held as hereunder:‑‑-- (i) "The Drug Inspector and the Sub‑Inspector had absolutely no malice or motive against the accused to involve them falsely in the case. The Drug Inspector recovered huge quantity of spurious drugs:' (ii) "This report which was proved in defence smashed the defence plea that the two accused had been arrested fifteen days prior to the alleged date of arrest. Rizwan Ashraf Drug Inspector, Haji Abdul Hamid Naib‑Qasid and Makhan Khan Sub‑Inspector clearly stated that they found Amjad and Muhammad Latif accused preparing spurious drugs. I have no reason to doubt the statements of the said three witnesses." (iii) "All the legal formalities required under the law had been complied with by the Drug Inspector." (iv) "The provision of 156, Cr.P.C. are clear on the matter and there was no illegality in the matter that the case had been investigated by Makhan Khan Sub‑Inspector Anti‑Dacoity Staff Qila Gujjar Singh." (iv) "I do not find any truth in the accusation of the accused that Makhan Khan Sub‑Inspector received illegal gratification and he had involved the two accused falsely in the case at the instance of Afzal Ashfaq." (v) "Latif accused is employee of Muhammad Salim Defence witness. Amjad accused works at the shop of Iqbal Hussain D.W.2. Such type of evidence is easily available. I reject the statements of two defence witnesses." (vi) "The statements of Rizwan Ashraf, Haji Abdul Hamid, Naib‑Qasid and Makhan Khan Sub‑Inspector were consistent. I do not find any defect in their statements. They were disinterested witnesses. They neither contradicted each other nor they contradicted the F.I.R. and the statements made to the police." On these findings of fact the trial Court came to the conclusion that both the appellants were guilty under section 27(1)(a) of the. Drugs Act and the sentence was passed giving the following reasons:‑‑

"This is the minimum sentence which is provided under the said section. I have taken the lenient view as both the accused were entrapped by Afzal Ashfaq absconder who according to the evidence on record was once convicted in case of counterfeit currency and in my view the sentence awarded to Amjad and Muhammad Latif accused would meet the ends of justice,"

7. The learned counsel appearing for the appellants have challenged the conviction and sentence of the appellants on numerous grounds which are enumerated as hereunder:‑- (1) The offence more appropriately fell under section 27(2)(a) of the Drugs Act, 1976 which was a less grave offence than under section 27(1)(a) of the Drugs Act for which they have been convicted and sentenced. ????? (2) The main accused in the case as per finding of the trial Court as well was Afzal Ashfaq who was allowed to escape, granted protection from the prosecution and not proceeded against. (3) The oral evidence with regard to the presence, participation and the actual act in which the two appellants were engaged is contradictory, unreliable and does not make out a case against the appellants. (4) The Police Station in whose jurisdiction the property fell and where the recoveries were allegedly made was ignored and even those other Police Stations which fell on the way, and instead recourse to C.I.A. Staff obtained/Anti‑Dacoity Staff was had for ulterior purposes. (5) In spite of the fact that the Drug Inspector had sufficient advance information about the manufacture of the spurious drug and had arranged a raid, he had in contravention of section 103 of the Criminal Procedure Code not included any respectable or independent person of the locality in the proceedings thereby defeating a mandatory provision of the law. ' (6) The defence evidence was equally convincing, creditworthy and it went to prove that the two appellants were engaged whole time in innocent trades and their arrest had not taken place in the manner shown by the prosecution. There was no plausible ground for rejecting such defence evidence' and necessarily preserving the prosecution case which m any case was discrepant on facts. (7) The benefit of section 382‑B of the Criminal Procedure Code has not been extended to the appellants though they remained in confinement for quite a long period and no reason has been given for denying them the statutory benefit.

8. So far as the legal grounds are concerned, we have examined the definition of "manufacture", "spurious drug" and "counterfeit drug" as provided in the Drugs Act, 1976 and find that they cover the act alleged against the appellants so as to bring the offence under section 27(1)(a) of the Drugs Act. What can be said at the most is that the offence alleged may equally fall under section 27(2)(a) of the Drugs Act as well. Even on that assumption, recourse to subsection (1) as against subsection. (2) of section 27 which is not so grave or serious was legal and proper. It could not ire otherwise.

9. As regards the other legal objection of substantial compliance with section 103 of the Criminal Procedure Code, the Drug Inspector admitted that he had received secret information about such manufacture a day or two earlier to the day the raid was conducted. He also made it clear that he did not in the first instance get assistance from the Shad Bagh Police Station and this was for the reason that he suspected that it may be with their connivance. It is in this background of secrecy and protection that the Drug Inspector sought the assistance of the C.I.A. Staff and excluded the participation and association of the Police Stations having jurisdiction or even the respectable of the locality. Such a caution on the part of Drug Inspector would not make the proceedings suspect for non‑inclusion of a respectable resident of the locality.

10. As regards the contradiction on factual matter as to whether the culprits were filling the bottles or putting labels on them, one has to keep in view the fact that there were more than three persons, in all four, in the premises engaged in the work. The process of filling the bottles, of labelling and of putting the material in bottles would all be a part of the process, a link in the completion of the transaction and different individuals may be engaged in different activity. This accounts for what the learned counsel consider factual discrepancy in the ocular testimony.

11. It is true that the trial Court has also come to the conclusion that Afzal Ashfaq was the main culprit, the beneficiary of the enterprise and the head of it. It is for that reason that a lenient view for their mere assistance as underlings, which the appellants happened to be, has been taken. It is incorrect to say that Afzal Ashfaq was given protection by the Police Officers though he was dealt with in a manner to prompt filing of Constitution Petition by the members of the family. He is a proclaimed offender. Evidence has 'been recorded against him under section 512 of the Criminal Procedure Code. All the processes that were legally permissible and could be taken had been taken against him and nothing more could reasonably be done to bring him before the Court.

12. As regards the preference of the oral evidence of the prosecution over the defence, one must notice that the prosecution witnesses are responsible officers of the Government having a' statutory duty to discharge. It is in the performance of that duty and not with a view of any mala fide action that they conducted the raid after taking all the precautions and observing the legal formalities that could reasonably be expected from them. On the other hand, though the defence witnesses claimed to have employed the appellants as Welder and Electrician, no record whatsoever could be produced by them or other. contemporaneous .evidence to inspire confidence with regard to it.

13. We find that on the material on record the trial Court has reached a correct conclusion with regard to the guilt of the appellants and the sentence awarded is such as would not require interference of this Court on any ground whatsoever. It is true that the trial Court has tried to be as lenient to the appellants as was possible within the limits of law but has omitted to extend them the benefit of section 382‑B of the Criminal Procedure Code without noticing any feature which could have justified such a denial.

14. In the circumstances, we dismiss the appeals against conviction and sentence but allow the two appellants the benefit of section 382‑B of the Criminal Procedure Code. N.H.Q./49/SAC ????????????????????????????????????????????????????????????????????? Appeals dismissed.