2022 PLP 584 (MLD)

ALI BAQAR NAJAFI, J.

Through this appeal under section 48 of Control of Narcotic Substances Act, 1997, the judgment dated 17.01.2019 passed by the learned Judge Special Court CNS, Sialkot, passed in case FIR No.20/2016, dated 21.07.2016, under section 9(c) of CNSA, 1997 registered at Police Station Sialkot, has been challenged whereby the appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to ten (10) years and (06); months R.I. with fine of Rs.50,000/- in default whereof to undergo further simple imprisonment for eight months. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Brief facts of the prosecution case against the appellant are that on 20.07.2016, Anjum Shakeel Sub Inspector (PW-3) along with other police officials and informer, on receipt of spy information and upon the direction of the high-ups constituted a raiding party, conducted raid and apprehended the appellant from the street near Dera who led the police party to his Dera wherefrom he got recovered charas weighing 08 kilograms contained in 08 white colour plastic bags (Torra) in presence of witnesses. 10 grams was separated from each packet as samples for chemical analysis and all said small eight packets and remaining eight packets were sealed as Exh.PB attested by Mian Bilal Ahmad/SI (PW-4) and Rizwan Ullah constable (given up PW). The recovered charas along with other articles i.e. ID Card, HBL Card, ATM Card were taken into possession through recovery memos (Exh.PC) and complaint (Exh.PA) was drafted and formal FIR (Exh.PA/1) was registered.

3. After completion of investigation by Anjum Shakeel SI (PW-3) he submitted challan against the accused-appellant before the trial court. On indictment, the appellant pleaded not guilty and claimed trial. The prosecution produced five witnesses, namely, Muhammad Ashraf ASI (PW-1), Ikram-ur-Rehman (PW-2), Anjum Shakeel SI (PW-3), Mian Bilal Ahmad SI (PW-4) and Munir Ahmad Patwari (PW-5). Thereafter, the accused/appellant was examined under section 342, Cr.P.C., whereby he professed his innocence and denied all the allegations levelled against him and claimed trial. He did not opt to depose within the scope of section 340(2), Cr.P.C. or adduce evidence in defence. In reply to the question as to why this case against him and why the PWs have deposed against him, he stated as under:- "I have been falsely involved in this case. I was serving in police department and working in intelligence wing, D.P.O. Office Gujrat. I made some reports to D.P.O. Gujrat regarding corrupt practices of difference police officials including S.H.O. P.S. Saddar Gujrat namely Arif Munir. On the basis of said reports D.P.O., Gujrat took serious actions against said corrupt police officials. The police officials had grievance in their mind against me. After the transfer of DPO Gujrat namely Rai Zameer-ul-Haq, Arif Munir S.H.O. P.S. Saddar Gujrat, who is relative of Khalid ud Din, A.D. A.N.F. Sialkot dragged me in this false case in connivance with each other by planting false recovery upon me. The PWs remained miserably failed to prove the recovery against me and also failed to prove my exclusive possession and domain over place of recovery. P.Ws. also failed to establish their visit at the place of recovery." After conclusion of the trial, the learned trial court pronounced aforementioned conviction and sentence.

5. We have heard learned counsel for the parties and perused the record with their able assistance.

6. Mr. Naveed Afzal Basra, Advocate, learned counsel for the. appellant has attacked the prosecution case from all four sides, i.e. no conscious possession of the appellant, no safe custody of the samples to and from the laboratory, recording of the complaint on different dates, and non-observance of the protocols by the Chemical Examiner in the reports. However, Mr. Zafar Iqbal Chohan, the learned Special Prosecutor for ANF fully supports the judgment under judicial scrutiny before this court.

7. On conscious possession of the narcotics by the appellant, the prosecution has produced Anjum Shakeel SI (PW-3), as head of the raiding team who also conducted the investigation of the case. According to him, the raiding party had reached at street outside the Dera where he was overpowered and on asking about the narcotics, led the raiding party to his Dera and took out white coloured plastic bag (Torra) concealed in the fodders of the cattle and produced before him who opened it in the presence of witnesses and 10 grams was separated from each packet for samples. He prepared and sealed parcels of remaining bulk of Charas (Exh.P-1) and sealed all parcels with stamp "A.S.". He took it in possession vide recovery memo (Exh.PB) and other articles ID card, HBL card, ATM card as recovery memo (Exh.PC) which were attested by Mian Bilal Ahmad SI (PW-4) and Rizwan Ullah Khan constable(given up PW). According to star witnesses he drafted complaint Exh.PA and sent it to police station through Zahid Iqbal/Constable (given up PW) for registration of FIR (Exh.PA./1). He handed over the case property to the Moharrir. He wrote a letter (Exh.PE) for obtaining record of properties owned by accused as well as the ownership of Dera. He interrogated the statements of Haji Ghulam Rasool, grand father of the appellant and Tauseef his brother in law. Vide letter (Exh.PF), the Assistant Commissioner concerned, deputed Patwari to visit the Dera and after his visit a rough site plan was prepared. During cross-examination, this PW-3 had admitted that there were construction on the southern and western sides and Abadi on the eastern side and that there is a street on the northern side, but then contradictory himself he stated that eastern and southern sides were open. He then admitted that there is no boundary wall around Dera and then denied the suggestion that no one can enter in the Dera easily. Importantly, Munir Ahmad Patwari Halqa (PW-5) also admitted that the Dera was without bound boundary wall, though he statedly prepared the report (Exh.PH) on the instructions of Anjum Shakeel SI (PW-3) but he also admitted that there was a discrepancy regarding the direction and place of construction on the western side of Dera. Surprisingly, he stated that as per statements of the respectables of the locality, the Dera was under supervision of the appellant. This witness has not denied that he neither recorded the statement of Ghulam Rasool, grandfather of appellant, respectables of locality nor had collected any document in the form of girdawari showing the control and supervision of the appellant over the Dera. He did not know whether cattles were present in Dera. Allah Ditta/Numberdar who was informed by the Patwari, was interrogated by PW-3. PW3. also admitted that he arrested the appellant from the street and then after his arrest he led to the recovery from the Dera. He also admitted that he did not investigate the police service record of the appellant as an employee of the police department statedly working in intelligence department of police. Another important aspect of the prosecution case is that Mian Bilal Ahmad SI (PW-4) had stated that appellant was not arrested in his presence but he led to the recovery of narcotics himself. He also admitted that anyone can come and go in the Dera without any hindrance. The complaint was not registered on 20.07.2016, and that its date was changed at night. Importantly, no evidence was collected regarding the ownership of Dera. It is a common observation that in the rural background, Dera is a private place of common use by all the owners for agricultural affairs. Any co-owner may have access, though some frequently visit there while others may not. One of them may have a supervisory control over possession through tillers/servants who may also be responsible for any illegal activities. Here it is important to refer to case titled "Hussain Shah and others v. The State" reported as PLD 2020 SC 132 where it was held that direct evidence was required to establish conscious possession which is clearly lacking in the present case and mere presence of accused at a place of recovery of concealed narcotics would not be sufficient to convict him. Relevant extract from page 136 is reproduced as under:-- "The law is settled by now that if the prosecution fails to establish conscious possession or knowledge in that regard then a passenger cannot be convicted solely on the basis of his availability inside a vehicle at the relevant time."

8. Even mere presence of the appellant on the place was not sufficient to hold him responsible for conscious possession as held in case titled "Mst. Jameela and another v. The State" reported as PLD 2012 SC

369. Relevant extract from page 370 is reproduced as under:- "The law on the subject is quite settled that there presence of a passenger in a vehicle cannot be treated as sufficient to saddle him with the responsibility of possession of narcotic substance recovered from the vehicle unless the prosecution establishes through independent evidence that such passenger was conscious and aware of availability of narcotic substance in the vehicle." The appellant, therefore, did not have the conscious possession.

9. On safe custody of recovered narcotics and samples, Anjum Shakeel SI (PW-3) gave parcel samples to Muhammad Ashraf/Moharrir (PW-1) on 21.07.2016 and on 22.07.2016 he delivered 08 sealed parcels to Ikram Ullah (PW-2), According to him the date of occurrence was disclosed at night on 21.07.2016 but his statement was not recorded on 21.07.2016 since as per FIR (Exh.PA/1) on 20.07.2016, Anjum Shakeel/SI (PW-3) left the police station at 8.30 p.m. and at 11.00, the recovery was effected. Ikram Ullah (PW-2) stated that he handed over the samples to him on 22.07.2016 who deposited it in the office of N.I.H. Islamabad but he does not know its address. However, this point cannot be appreciated since the address is not mentioned even on the report. It is, therefore, concluded that the chain of the safe custody is not broken.

10. On the non-observance of protocols, it is important to mention that although all eight samples were separately analysed but the kind/type of protocols applied for the chromatography tests were not mentioned rather international conventions were written.

11. Exh.PI is the chemical examination report prepared in view of the outdated/old interpretation of Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 as directory, therefore, its non-observance would not have invalidated the trial. Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 is reproduced as under" "

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." However, it would be important to observe that in case titled The State through Regional Director ANF v. Imam Bakhsh and others reported as (2018 SCMR 2039), Rule 6 has now been declared as mandatory, the non-observance of which shall invalidate, the result. Para 15 of the judgment is reproduced as under:- "

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." (underlining for emphasis is ours). "

12. It was recently reiterated in case titled Khair ul Bashar v. The State reported as (2019 SCMR 930) that said Rule necessarily requires test and analysis by following the protocols on the alleged drugs by mentioning each test and the names of all the protocols applied to carry out the result without which, the report so prepared by the Government Analyst shall be invalid. Page 935 of the said judgment is reproduced as under:- " 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 Analysts. Hence, the argument that Imam Bakhsh is per incuriam, is hopelessly misconceived and rejected. For completion of record it is pointed out that review filed in Imam Bakhsh was also dismissed vide an earlier order dated 06.02.2019".

13. In the more recent judgment in PLD 2020 SC 57 titled "Qaiser Javed Khan v. The State through Prosecutor General Punjab Lahore and another", decided on 18.12.2019 the Hon'ble Supreme Court has reiterated the views expressed in Ikramullah (2015 SCMR 1002), Imam Bakhsh (2018 SCMR 2039) and Khair-ul-Bashar (2019 SCMR 930) while holding as follows:- "

8. The Report of the Government Analyst in the instant case does not specific the protocols of the tests applied and does not meet the requirements of the law as interpreted by this Court in the cases of Imam Bakhsh and Khair-ul-Bashar (supra). The said report cannot be relied upon for the Conviction of the petitioner. Therefore, the petition is converted into appeal and allowed. The conviction and sentence of the petitioner are set aside. He shall be released forthwith if not required to be detained in any other case.

9. We have observed in a number of cases before us that the import of the above cited judgments have not been fully understood in the context of "protocols", which has been further clarified in this judgment. Thereafter, it will be appropriate to a copy of this judgment is dispatched to all the High Courts for their reference and for further circulation to the Trial Courts dealing with such matters and to the Forensic Science Laboratories in their respective areas".

14. Based upon the above latest law, we have noted that report of National Institute of Health, Islamabad (Exh.PI) the said requirement was not fulfilled as required in Imam Bakhsh's case supra. Only the test performed on the receipt items were mentioned which included top-load balance for weighing, chemical spot tests for presumptive testing and gas chromatography-Mass Spectrometry used for confirmation. The scanned copy of the report Exh.PI is as under:-

15. Keeping in view the above, it cannot be safely said that the conviction of the appellant was based on the prosecution case proved beyond any reasonable doubt.

16. For what has been discussed above, this appeal is allowed, conviction and sentence of the appellant is set aside and he is acquitted of the charge levelled against him by extending the benefit of doubt. He is in custody, be released forthwith if not required to be detained in any other case. SA/A-97/L Appeal allowed.