1992 P Cr (PLP)

JUSTICE ABDUL MAJEED TIWANA, MEMBER.

Iqbal Hassan and his son Nadeem Hassan, the appellants herein, were tried, by the learned Judge of Special Court for Speedy Trials No.2, Lahore on the charge of manufacturing spurious drugs for sale punishable under section 27 of the Drugs Act, 1976 read with section 34, P.P.C. and, vide his judgment; dated 7-3-1992, they were convicted under section 27(1) and sentenced 10, years' R.I. and a fine of Rs.T,00,000 each. The spurious drugs constituting case property were directed to be destroyed after the decision of appeal, if any, and Suzuki Car No.LHJ-211 was forfeited to the Provincial Government under section 29 thereof. . 2: On 27-7-1990 at about 2 p.m. Khawaja Fawad, Drugs Inspector, Incharge of District Lahore, received at telephone message from Saeed Ahmad D.S.P. Model Town, Lahore that a person was bringing spurious drugs for sale. The Drugs Inspector passed on this information to Haq Nawaz Malik, Divisional Drugs Inspector, Lahore Division and both of them went to Police Station, Model Town. Reaching there, they constituted a raid party consisting of Inspector Muhammad Akram Cheema; S.H.O. P.S. Model Town; S.I. Muhammad Rafiq; S.I. Muhammad Akram and certain other police officials. The raid party so constituted waited for the person to come on the road side near Barkat Market, New Garden Town, Lahore. After sometime the concerned person, whose name was later ascertained as Nadeem Hassan, came there, driving Suzuki Car No.LHJ-211. He was intercepted by the raid party and the search of the vehicle led to the recovery of 168 boxes of ampiclox injections 500 mg. each box containing ten vials, and 160 boxes of penbriten capsules of 500 mg. each and each box contained 100 capsules. Nadeem Hassan, who is now appellant, was unable to produce bill warranty. The injections and capsules so recovered were seized by Khawaja Fawad, Drugs. Inspector through Form No.4 (Exh.P.C.) and a copy thereof was supplied to Nadeem. Hassan appellant in lieu of his signatures:- The seizure document (Form No.4) was attested by Haq Nawaz Malik, Divisional Inspector and three police officers, namely, Inspector Muhammad Akram Cheema S.H.O. S.I. Muhammad Rafiq and S.I. Muhammad Akram. He also Filled up Form No.5 (Exh.P.D.) which was also attested by the aforesaid witnesses. Copy of this form was also supplied to the said appellant who duly acknowledged it.

3. On interrogation Nadeem Hassan appellant disclosed that spurious drugs were being manufactured in House No.823, A-Block, Gulshan-e-Ravi Scheme, Lahore and led the raid party to this premises. Reaching there, the raid party found Iqbal Hassan appellant preparing the spurious drugs in a large quantity and it seized 14,130 vials and 800 unpacked injections of ampiclox 4,800 labels of these injections, 500 embossed aluminium caps of such injections; one set of metallic dye for embossing aluminium caps, 1,323 boxes of penbritin capsules, each of 500 mg. each box containing 10 capsules; one kg powder of penbritin capsules, one packet of empty penbritin capsules, one packet of penbritin labels one capsules filling machine, 177 boxes of sosegon injections, each containing 5 vials, 6,000 ampules of sosegon injections, 5,000 prescribing literature of sosegon and 600 empty cartons of this drugs, one packet of labels of testosterone depot, 20,000 prescribing literature of testosterone depot, 1,000 duly packed and 180 unpacked samples of testosterone injections, 10 printing plates .of these injections with wooden brackets two printing plates of these injections, besides one metallic press for stamping batch mark, date of manufacture and expiry date, glue of red black and white colours, five bottles of printing ink, and 15 rubber stamps of different Government Institutions. The Drugs Inspector seized all these articles vide Form No-4 and supplied its copies to Iqbal Hassan appellant in lieu of his signatures and thumb-impressions in token of having received the copy of the form and samples. This form was also attested by the above said witnesses. He also filled up Form No.5 in two sheets. Iqbal Hassan appellant could not produce any licence for manufacturing of the said injections and capsules, nor he had registration .certificate. The Inspector also filled up Form No.6 (Exhs.P.H., P.J., PA., P.L., P.M. and P.N.) and sent the copes of Form No.6 alongwith letter P.Q. to the Chairman of the Quality Control Board. On the receipt of the test reports (Exh. S.P.R., P.S., P.T., P.U., P.V. and PX) from the Government Analyst he sent the copies of the reports to Nadeem Hassan appellant under covering letter (Exh.P.Y.) through P.S. Model Town.. Similarly, he sent copies of the reports of the Analyst to Iqbal Hassan appellant. 4 Khalid Latif (P.W.) of Beecham Pakistan (Private Ltd., which manufactures ampiclox injections and penbritin capsules, as a call visited the. office of Khawaja Fawad, Drugs Inspector and compared the injections and capsules recovered from the appellants alongwith aluminium caps with the product of the company and vide his letter (Exh.P.AA.) he gave his opinion about the spurious nature of drugs seized. He also certified that Iqbal Hassan appellant had no authority from Beecham Pakistan (Private) Ltd. to manufacture; ampiclox injections and penbritin capsules. 5: On the receipt of directions from the Chairman, Provincial Government Quality Control Board, as contained in his letter (Exh.P.F.F.), for taking, legal action against the appellants under the Drugs Act, 1976, Khawaja Fawad Drugs Inspector drafted complaint (Exh.P.G.) and handed over the seized articles alongwith the appellants to Inspector Muhammad Akram Cheema, S.H.O. of Police Station Model Town. The complainant was sent to Police, Station Nawan Kot and formal F.I.R. was recorded.

6. The police conducted further investigation of the case. Mst. Nasreen Iftikhar (P.W,) the owner of House No.823, Block-A, Gulshan-e-Ravi Scheme, Lahore, who resided in the upper storey of the house, was associated with the investigation of the case and rent agreement dated 30-5-1988 was seized from her. A challan was prepared by the police Jameel, Provincial Drugs Inspector, Lahore, was notified as Drugs Inspector for Police Station Nawan Kot and Model Town vide notification dated 22-8-19990 and he riled complaint (Exh.P.K.K) in the Drugs Court, Lahore, where it remained pending till 28-11-?1991 when it was transferred to the Special Court for Speedy Trials No.2 Lahore.

7. On the commencement of the trials, the appellants were charged under section 27 of the Drugs Act, 1976 read with section 34, P.P.C. They pleaded not guilty and the prosecution produced as many as eight witnesses. The first witness was Mst. Nasreen Iftikhar. She deposed that she was owner of House No.823, A-Block, Gulshan-e-Ravi Scheme, Lahore and had rented out its ground floor to Iqbal Hassan on 30-5-1988 vide Rent Agreement (Exh.P.A.) signed by the appellant and he remained in its occupation or the date of raid Khawaja Fawad Drugs Inspector, District Lahore (P.W.2), in his statement recounted the facts from start to finish i.e. from the receipt of telephonic message from D.S.P. Model Town, constitution of raid party, interception of the vehicle being driven by Nadeem Hassan appellant, recovery and seizure of the drugs from him, the raiding of premises of the House No.823, A-Block. Gulshan-e-Ravi, Lahore and seizure of spurious drugs being manufactured by Iqbal Hassan appellant till the handing over of the appellants and the case property to the police. In short, his statement finds reflections in the narration in the prosecution story. Haq Nawaz, Divisional Drugs Inspector (P.W.3), who was also member of the raiding party corroborated the statement of P.W.2 in all material details. Jameel Anwar, Drugs Inspector (P.W.4) testified as to how he sent copies of the reports of Government Analyst to the appellants through registered post and had filed the complaint (Exh.P.KK.) in the Drugs Court. The next witness was S.I. Muhammad Sadiq (P.W.5) who proved the recording of formal F.I.R. (P.G./1) on the receipt of complaint (Exh.P.G.). Muhammad Rafiq, Naib-Qasid of the Drugs Inspector (P.W.6) deposed about the safe delivery of six sealed parcels, half of them in the Drugs Testing Laboratory and he remaining half to the Quality Control Board.

8. Jawad Ali Khan, Lodhi, Superintendent Government Printing Press, Lahore (P.W.7) described the printing technique and publication of the notification regarding the appointment of Khawaja Fawad, Jai-heel Anwar and Haq Nawaz Malik, Drugs Inspectors vide documents (Exh.P.GG./1), (Exh.P.HH./1) and (Exh.P.JJ/1). Khalid Latif, Institutional Sales Manager, Beecham Pakistan (Private) Ltd., (P.W.8), after producing cartons of ten vials of ampiclox injections and penbritin capsules, deposed that ampiclox injections were not being manufactured by his Firm in Pakistan and these injections were either being manufactured in Singapur or in U.K., that the powder and capsules used for preparing penbritin capsules were also being imported by the Firm and only the container and the labels were country-made. He testified that he had visited the office of the Drugs Inspector on 10-9-1990 and. compared the ampiclox injections and penbritin capsules seized by him with he genuine drugs prepared by his Firm and found the former of inferior quality. He proved his report (Exh.P.A.). He also produced the copy of manufacturing licence (Exh.P.BB.) and registered certificate (Exh.P.DD.) of 3eccham Pakistan (Private) Limited.

9. The trial Court also examined Muhammad Iqbal, Section Holder of the Government Printing Press as a Court-witness. He deposed about the notifications printing. Muhammad Akram Cheema, S.H.O: (P.W.9) also gave the details of the raid, recovery and seizure of the drugs. Sarfraz Baluch (P.W.10) testified that he supplied medicines to the Government Hospitals and was running a drugs shop known as Friends Traders, 6-Sikandar Block, Allama Iqbal Town, Lahore. He stated that neither lqba1 Hassan appellant nor his son Nadeem Hassan appellant was his partner in the drug business nor he contacted Iqbal Hassan appellant for the agency of PDH and that Akbar Ali Bhatti was neither his partner nor his relation, nor did he receive Rs.3,00,000 from Iqbal Hassan appellant nor did he supply medicines to him. According to him, he supplied only those medicines to the Government Hospitals which were manufactured in Pakistan and did not sell medicines to Government Hospitals which were being manufactured by Beecham. Smith Cline, Winthrop etc. the foreign companies. The last witness was S.I. Muhammad Sharif (P.W.11) who had partly investigated the case. He gave the details of the investigation carried out by him. ???????????

10. The appellants were examined under section 342, Cr.P.C. They denied all the incriminating circumstances figuring against them in the prosecution evidence. Both the appellants in their respective statements recorded under section 342, Cr.P.C. denied the raid, recovery and seizure of the drugs from their possession and alleged their false implication at the instance of Akbar Al Bhatti M.N.A. who allegedly supplied medicines to the Government alongwith his relation and employee Sarfraz Baluch P.W.

11. To be a little more precise, Iqbal Hassan appellant stated that in July. 1987 when he was Distribution and Sales Manager of Pakistan Drugs House, controlling the sale and distribution of its product, Akbar Ali Bhatti and Sarfraz Baluch P.W. became acquainted to him as they used to purchase drugs of his company for supplying the same to the Government. He alleged that when they became intimate to each other, he, on the suggestion of Sarfraz Baluch P.W. became his partner in' the drugs business and contributed Rs.3,00,000 as a sleeping partner. According to him, they jointly rented a premises but the rent note was executed in his name, though the rent was being paid by Sarfraz Baluch. He stated that Sarfraz Baluch brought 2,000 boxes of penbritin capsules from Akbar Ali Bhatti and stored the same in. the rented premises and when he gave a sample out of those boxes to Agha Shabbir, a drugs dealer at Lalamusa to know the reaction of the market, he reported to him that the drug dealer found it substandard and on his persuasion he dissolved partnership business with Sarfraz Baluch P.W., who returned to him Rs.2,000 in October, 1989 but the balance of Rs.1,00,000 was still .due from him. He asserted that when he stopped the supply of medicines, manufactured by Pakistan Drugs House to Sarfraz Baluch in 1970 he was asked by Akbar Ali Bhatti to restore the supply of medicines to him but he declined to oblige him and he was threatened. He further stated that in the evening of 27-7-1990 when he returned to his house in Suzuki Car No. LHJ-211, he was informed by his wife that his son Nadeem Hassan appellant had been taken away by the police to some destination. According to him, he alongwith his wife and daughter went on searching for his son throughout the night and at 1-30 a.m. he came to know that he was in the custody of Model Town Police where he too was taken into custody by the police and his signature and thumb-impression were taken on certain papers under duress. He alleged that he was kept in wrongful custody by the police for seven days but nobody listen to him.

12. Nadeem Hassan appellant in his statement alleged that he was working as Assistant in the Return Department of BCCI, LDA Plaza, Egerton Road, Lahore and with the permission of Bank manager he worked over-time on Fridays. According to him, on 27-7-1990 (Friday) at 8-30 a.m. he reached his office and- worked till 4-30 p.m. and his presence in the office stood duly marked in the register known as `Odd Time Register'. He denied having been arrested near Barkat Market and the medicines having been recovered from him. He stated that in the afternoon he came to his house and in response to a call bell when he went out of his house he found Akram Cheema, S.H.O. of Police Station Model Town, who took him to the police station without allowing him to inform his members of family. He alleged that during the night his father, mother and sister came in the Suzuki Car, where his father was also apprehended after sending his mother and sister to the house. He alleged that the police obtained his signatures and thumb-impressions on certain papers under threats. Neither of them expressed his willingness to make a statement on oath under section 340(2), Cr.P.C.

13. In support of his partnership business and its dissolution Iqbal Hassan appellant produced Agha Shabbir Ahmad Proprietor of Sanam Medicose Lalamusa (D.W.6) and Muhammad Jehangir (D.W.7). The former corroborated the role assigned to him in the statement of the appellant while the latter deposed that in the first week of 1990 when he went to the house of Iqbal Hassan appellant, he saw him quarrelling with Sarfraz Baluch P.W. on inability of the latter to return the invested amount of Rs.1,00,000 to him (former).

14. In support of his plea of alibi, Nadeem Hassan appellant produced Shamas Khan, Manager' BCCI (D.W.1), Tallat Mahmood (D.W.2), Naveed Ahmad (D.W.3), Shahnawaz Sial (D.W.4) and Alam Din (D.W.5). They deposed about the presence of Nadeem Hassan appellant in the bank at the relevant time.

15. It appears that when the prosecution evidence was in progress, the learned prosecutor on 18-2-1992 made an application to the learned trial Judge for summoning Sarfraz Baluch, Akbar Ali Bhatti, M.N.A. and Saeed Khan D.S.P. as prosecution witnesses and he was allowed to do so but only Sarfraz Baluch was examined as (P.W.10) and other two witnesses, namely, Akbar Ali Bhatti, M.N.A. and Saeed Khan D.S.P. were eventually given up as unnecessary. On the conclusion of the trial, the appellants, by the judgment dated 7-3-1992, were convicted and sentenced in the manner aforesaid and they preferred this appeal.

16. During the course of argument Sh. Ziaullah Advocate, the learned counsel for the appellants has inter alia contended before us that? (i) the Drugs Inspector had illegally got the case registered against the appellants in violation of the mandatory provisions of sections 11 and 19 of the Drugs Act, 1976 and Rule 4(3) of the Drugs Rules, 1988 which envisaged the prior permission of the Provincial Quality Control Board and service of show-cause notice on them to enable them to explain their position; (ii) the provisions of section 154, Cr.P.C. for the registration of the case, by virtue of the provisions of section 1(2) thereof, were subject to the provisions of the special enactment such as Drugs Act, 1976; (iii) the spurious nature of the drugs as defined in the Drugs Act, was not proved in accordance with law because neither the Government Analyst was a duly qualified person nor the certificate issued by him contained the necessary details of the process of analysis carried out by her; (iv) the appointment of Kh: Fawad, Haq Nawaz Malik and Muhammad Jamil Anwar, Drugs Inspectors, who appeared as prosecution witnesses was without lawful authority and not in accordance with law as the same was not notified in the official Gazette nor their territorial jurisdiction stood duly specified as contemplated by section 17 of the Drugs Act, 1976; and (v) the raid, recovery and seizure of the drugs allegedly recovered from the appellants were fake and fictitious and the same were planted on the appellants at the instance of Akbar Ali Bhatti, M.N.A. as they incurred his displeasure on account of their dis-association with partnership business of drugs with him through his relation and employee Sarfraz Baluch P.W.

17. Elaborating his last contention, the learned counsel has vehemently stressed that Akbar Ali Bhatti, M.N.A. is the largest manufacturer, stockist and supplier of spurious drugs in Pakistan and on account of his political influence he has been and continues to be the sole supplier of such drugs to the Government and its various agencies. According to him, each and every packet, packing and covering of this huge quantity of drugs worth lacs of rupees allegedly seized at the- instance and from the possession of the appellants, bore the stamp of `DHS.' an abbreviation for `Director Health Services', which by itself indicated that these drugs were to be supplied or being supplied to the Provincial Government and the supplier was no other person except Akbar Ali Bhatti, M.N.A., has agents and employees. According to him, no wholesale or retail seller of the drugs and medicines can sell to the members of Public the drugs or medicines bearing the stamp of `Director Health Services', indicating the same to be the property of the Government in the Health Department and the drugs constituting case property, therefore, could not be sold in market to the ordinarily drugs dealers. He contends that Akbar Ali Bhatti, M:NA. and his relation and agent Sarfraz Baluch P.W., who falsely denied his connection with him, are the real culprits in this case but the former has been purposely withheld from being produced as a prosecution witness lest his nefarious activities might be exposed in the cross-examination and he might find himself in hot waters.

18. The learned Law Officer appearing on behalf of the State has tried to defend the impugned judgment. He has, however, not been able to satisfy us as to why Akbar Ali Bhatti, M.N.A., against whom the defence has levelled allegations of serious nature by describing him as the main culprit in the business of spurious drugs having masterminded the whole drama by misusing his official position and political influence through D.S.P. Saeed Khan, was not brought in the witness-box as a prosecution witness after seeking permission of the trial Court for his production as such.

19. The contention of the learned counsel for the appellants regarding the drugs packets and coverings bearing the stamp of `DHS', which fact has not been denied by the learned counsel appearing on behalf of the State, does not appear to be without substance. Ordinarily no wholesale dealer or retail seller of drugs and medicines would purchase or sell in open market the drugs and medicine bearing the stamp indicating them to be the property of the Government. We appreciate his contention that neither the Drugs Inspector nor the S.H.O., Police Station Model Town, who constituted the raid party, explained as which was the destination of the drugs being transported by Nadeem Hassan appellant in his Suzuki car. It was a necessary question to be asked to him by them and they must have asked but each of them suppressed this fact. If they were keeping quiet, the learned trial Judge could elicit this information from them. This omission and silence reflected adversely on all concerned. The marking `DHS' on the packings and coverings of the drugs apparently indicated that they were the property of the `Director Health Services, Punjab', or for that matter, of the Health' Department of the Provincial Government and if the story, of prosecution regarding the transportation of some quantity of ampiclox injections and penbritin capsules by Nadeem Hassan appellant in his Suzuki, car, which was allegedly seized near Barkat Market, New Garden Town, Lahore, was correct, then the possibility of those drugs and medicines being taken to the Medical Stores of Director Health Services (MSD) or the same being secretly brought from the MSD for sale to certain wholesale or retail dealers of drugs in a clandestine manner, cannot be excluded.

20. Since the menace of sale, purchase and use of spurious drugs by certain persons. dealing in drugs trade is threatening the health and well being of the general public, we, in the larger interest of justice, deem it proper to enable the learned trial Court to probe into this aspect of the matter and to bring to book the real culprits, whether they are the appellants herein, about whose criminal liability we would refrain from expressing any opinion at this stage, or they are some other persons of whatever status. Therefore, we accept the appeal, set aside the conviction and sentence of the appellants and remand the case to the learned trial Court with the directions that it shall first of all B examine the Incharge of Government Medical Store Depot (MSD) as a Court? witness with the help of relevant record to rind out as who was the actual supplier of abovementioned kinds of drugs, namely, ampiclox injections and penbritin capsules, sosegon injections and testoviron injections to the Provincial Government in the year 1989-90 and how these drugs were supplied by MSD to different hospitals and dispensaries during this period. Thereafter Akbar Ali Bhatti, M.N.A., who is already cited as a prosecution witness, shall be examined. If necessary, anyone or more of the prosecution witnesses already examined shall be re-examined with a view to find out as to which was the source or destination of the drugs in question and if, after the examination arid re-examination of the aforesaid witnesses, the learned trial Judge came to the conclusion that any other person was also concerned with the commission of the offence, he may also be arraigned as a co-accused and may be tried in accordance with law. If after the examination and re-examination only the appellants remain as- accused, then they shall be re-examined under section 342, Cr.P.C. and also under section 340(2), Cr.P.C. if they chose to appear as their own witnesses. Their further defence evidence, if any, shall also be recorded. Then the case shall be re-decided in accordance with law but expeditiously in accordance with the statutory mandate of the Court.

21. Before parting with this order, we would like to observe that the charge framed by the learned trial Judge does not precisely conform to the number and quantity of the drugs and other articles allegedly seized by the raid party from the vehicle of Nadeem Hassan appellant and from the business premises of Iqbal Hassan allegedly manufactured by him as detailed in the seizure memoranda and the charge might necessitate rectification with all necessary legal consequences. N.H.Q./43/SAC ??????????? Case remanded.