P L D 2010 Supreme Court 623 (PLP)

RAHMAT HUSSAIN JAFFERI, J.

The appellant Ali Muhammad, with the leave of the Court, has filed the present appeal, to challenge the judgment dated 9-8-2006, passed by the High Court of Sindh, Circuit Court, Hyderabad, by which the conviction recorded by the learned Special Judge, CNS, Mirpurkhas, for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as `the Act') and sentence of imprisonment for life with fine of Rs.200,000 or in default thereof to suffer imprisonment for two years, was maintained.

2. The facts giving rise to the present appeal are that on 4-10-1997, the complainant Raja Fazal-ur-Rehman, DSP/SDPO, Mirpurkhas (P.W.1), interrogated the appellant arrested in Crime No.71 of 1997 of Police Station Satellite Town, Mirpurkhas, who led the police party along with SDM Farhan Aziz (P.W. 5) and other police officials to his house, where two persons namely Shamoon and Kanji Kolhi, who were his Harris and after seeing the police party, ran away from the house. The appellant took the police party into the house and produced five cartons. On opening the cartons, the complainant found charas lying therein; two cartons had 40 packets each; two cartons contained 34 packets each and one carton contained 39 packets of charas, weight of which was 192 kilograms. The complainant separated one packet each from each carton, weighing 1 kilogram and sealed them separately by making five packets for sending them to Chemical Analyzer for examination and report. The property was sealed at the place of recovery, such mashirnama was prepared. The appellant and the property were brought to the police station, where the F.I.R. was lodged being Crime No. 25 of 1997.

3. At the trial, the prosecution examined 8 witnesses. P.W. 1 was the complainant, who gave the same details of the incident, as mentioned above. P.W.2 was SIP Attaullah, who arrested the co-accused Shamoon and Kanji Kolhi. P.W.3 Bashir Ahmed was Incharge CIA, Mirpurkhas, who was also in the party in arresting the co-accused. P.W.4 Qaisar Ali Khan was Judicial Magistrate, who destroyed the property. P.W.5 Farhan Aziz was SDM, Mirpurkhas at the relevant time, in whose presence the raid was conducted but he gave a completely different story from that of the complainant. According to him, on 4-10-1997, he was asked by P.W. to perform emergency duty, therefore, he reached Chandni Chowk, where the complainant along with police party, was present and had conducted a Nakabandi, where a car, being driven by the appellant was stopped. On search of the car, 37 kilograms of narcotic were secured. Thereafter, on interrogation he took the police party to Satellite Town, where the police party secured sizeable quantity of narcotic and then on further interrogation, the appellant led them to the house (place of present incident), where his two Harris were present, who were apprehended by the Police and the appellant produced Charas from the house. The total quantity of the charas, recovered on the pointation of the appellant, was 8 1/2 mounds. In the cross-examination, he admitted that five packets were prepared but the same were sealed in a clothe bag at the Police Station and except these five packets rest of the Charas was not in the Court. P.W.6 Abdul Hakeem was one of the mashirs of the recovery. His evidence is the same as that of the complainant but he gave different version about the property as he disclosed that five plastic bags instead of cartons, as stated by P.W.1, were produced by the appellant containing Charas weighing 192 kilograms, two bags contained 39 kilograms each; two bags contained 40 kilograms each and one packet contained 34 kilograms of Charas. This sequence is quite different, which P.W. 1 gave in the statement. P.W.7 was Muhammad Abid, who was S.H.O. of Police Station Satellite Town, Mirpurkhas. His evidence reveals that on 12-5-1998, he moved an application for destroying the property before the Magistrate and on the same day on 4-00 p.m. the Magistrate destroyed the property of the case in presence of police officials and such certificate was issued. He admitted that no sample from the property, which was destroyed, was prepared. P.W.8 was A.S.-I Aftab Ali. His evidence shows that in his presence the Magistrate destroyed the property.

4. The prosecution also produced Chemical Analyzer's Report (Exh.31), which shows that it was dispatched through letter dated 5-10-1997 but it was received on 2-12-1997 after about two months without furnishing any explanation about the whereabouts of the property in these two months. The report is in positive. The appellant in his statement recorded under section 342, Cr.P.C. denied all allegations of the prosecution. He stated that the property was not sent to the Chemical Analyzer; that the Magistrate was not authorized to destroy the property as it was for the trial Court to have destroyed it; that the property was not produced in the Court and in his further statement, he has stated as under: -- "Prosecution has falsely and illegally made two crimes from same story i.e. crime No.71 Satellite Town PS and Cr.No.25 of PS of 1997. I have been falsely implicated by police in these cases on the instance of Qurban Ali Shah. His persons namely Nek Muhammad, Hadi Bux, Tulsi Jiwan, Shevdad were indulged in narcotics dealings, they were arrested by police on the influence of Qurban Ali Shah, they were released and I was substituted by the police and have been falsely implicated in this case. There was no any property at Police Station. The allegedly destroying the property at Police Station Satellite Town by S.H.O. Abid Ali and Magistrate Qaiser Ali Khan was nothing but it was arranged in papers by both of them with collusion of Qurban Ali Shah and others. The said Magistrate Qaiser Ali Khan nor was Illaqa Magistrate of Satellite Town. The case was pending before him. He was not authorized by this honourable Court (Trial Court). He had no powers to destroy case property of honourable Court. Even the police station Satellite Town was not within his jurisdiction. When such fact is came in the knowledge of this honourable Court the then Sessions Judge reported the matter to high-ups and against him to highups and against SHO Abid Ali higher officers of police."

5. The learned trial Court tried the appellant along with co-accused Shamoon and Kani Kolhi. After assessing the evidence, the co-accused were acquitted, whereas the appellant was convicted for possessing 192 kilograms of Charas. On appeal, the learned High Court formed the opinion the property was illegally destroyed, which was not produced before that trial Court and the appellant were responsible for 8 kilograms of Charas, which were sent to Chemical Analyzer for examination and report. Therefore, the appellant was convicted and sentenced for possessing 8 kilograms of Charas, under the impugned judgment dated 9-8-2006.

6. Having heard the learned counsel for the parties and going through the record with their assistance, we find that the statements of P. Ws.1 and 6 are contradictory to each other in respect of the property lying in cartons or plastic bags and the packets found in each bag. Their statements are further contradicted by P.W.5 Farhan Aziz, SDM, who gave completely different story. According to him, both the co-accused were arrested at the place of incident but according to P.Ws. 1 and 6 they ran away from there. The important aspect of the case is that P.W.5 specifically stated that five packets were sealed in clothe bags at the Police Station, whereas P.Ws. 1 and 6 stated that they sealed the property at the place of incident, which creates serious doubt in sealing the property at the place of recovery. Thus the ocular testimony is highly doubtful, therefore, no implicit reliance can be placed on such type of evidence.

7. Furthermore, P.W.4 Judicial Magistrate destroyed the property without the permission of trial Court though the case was not triable by him but it was triable by Special Judge, CNS. The property can be destroyed under section 516-A, Cr.P.C, which reads as under:

"516A. Order for custody and disposal of property pending trial in certain cases.

When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subjected to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of: [Provided that if property consist of explosive substances, the Court shall not order it to be sold or handed over to any person other than a Government Department or officer dealing with, or to an authorized dealer in such substances:] [Provided further that if the property is dangerous drug, intoxicant, intoxicating liquor or any other narcotic substances seized or taken into custody under Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf:]- [Provided also that such samples shall be deemed to be whole of the property in any inquiry or proceedings in relation to such offence before any authority or Court."] A perusal of section 516-A of Criminal Procedure Code reveals that if a property regarding which an offence appears to have been committed or which appear to have been used for the commission of an offence, is produced before any Criminal Court during any inquiry or trial, it empowers the Court to pass orders, pending such inquiry of trial, for the proper custody of the property, but if the property is subject to speedy or natural decay the Court may order it to be sold or otherwise disposed of after recording such evidence as thinks fit.

8. In the year 1981 first proviso of section 516-A, Cr.P.C. was added vide Ordinance XXXIII of 1981, whereas second and third provisions to the said section were added vide Act VII of 1993. Under the first proviso the Court has been debarred from ordering the property, consisting of explosive substance, to be sold or handed over to any person other than a Government Department or Officer dealing with, or to any authorized dealer in such substances.

9. The second proviso deals with the property which is dangerous drug, intoxicant, intoxicating liquor or any of the narcotic substance which is seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1913), the Custom Act, 1969 (IV of 1969) Prohibition (Enforcement of Hadd) Order, 1979 (P.O. IV of 1979) or any other law for the time being in force. It empowers the Court to order suo motu or on an application of any party and under its supervision and control, to obtain and prepare samples of the property for safe custody and production before it or to any other Court and cause destruction of the property under a certificate issued by it in that behalf.

10. The third proviso provides that the sample taken under the second proviso from 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.

11. It is important to note that a duty lies upon the prosecution to produced the property in the Court as it is the evidence, which has been collected during the investigation and is being used against the accused to prove the offence. At the same time, it is the right of the accused, when the prosecution has discharged the duty in producing the property, to examine the allegedly recovered property during the trial but second and third proviso of section 516-A,. Cr.P.C. have made exceptions to the general rule. Thus discretion vested in the Court under the second proviso is to bi exercised judicially before and at the time of destruction of the property to safeguard the interest of all concerned including the accused. By destroying the entire property after keeping its samples, the accused would be deprived of his right to examine the same at the time of trial, if it is done without his knowledge. Therefore, in order to safeguard his right and to hear the objections whatever available with the accused, inter alia, about weight, contents of packets, seals affixed on the packets, legal possession or a request for sending the entire property for analysis, which he might raise at the trial when the entire property is produced before the Court can be taken into consideration at the time of passing the order of destruction of the property by giving a notice to the accused person. If the Court suo motu exercises the power under second proviso that it is essential to give notice not only to the accused but also to the prosecution so that after hearing the contentions and objections, if any, by any party, the order of destruction of the property can properly be passed. Issuing of notice to the parties is an essential requirement of the law to hear the parties as it is a well settled principle of law that no. body should be condemned unheard and no adverse order, concerning his right can be passed against any party without hearing him. This rule is a rule of natural justice, which unless prohibited by wording of statute, must be read in each and every statute, as held by this Court in the cases of "Abdul Majeed Zafar v. Governor of the Punjab 2007 SCMR' 330 and Asim Khan v. Zahir Shah 2007 SCMR 1451".

12. It is not out of place to mention here that whenever an order under section 516-A, Cr.P.C. is passed for proper custody of the property a notice is not only required to be issued to the prosecution but if the ownership of the property is established then a notice is also required to be issued to the owner of the property in appropriate cases and after hearing them the property can be handed over to the person from whom it was secured or to its owner. It is possible that the accused may take defence that the narcotic drug psychotropic substance or controlled substance was legally possessed by him for medical, scientific or industrial purposes as provided under the Act or any other law. Such defence is protected under section 6 of the Act that reads as under: "

6. Prohibition of possession of narcotic drugs etc.

No one shall produce manufacture, extract, prepare, possess, offer for sale, purchase, distribute, delivery on any terms whatsoever transport dispatch, any narcotic drugs psychotropic substances or controlled substance except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force." Similar protection can also be taken under Dangerous Drugs Act 1930, Customs Act and Prohibition (Enforcement of Hadd) Order, 1979 or any other law.

13. As regards the right of the accused in respect of the property, this Court in the case of "Ali Muhammad v. State 2003 SCMR 54" at page 58 observed as under: "The appellants also did not pray before the trial Court or High Court that entire case property be sent to Chemical Examiner for report as to challenge that entire case property was not narcotic substance/drug." The above observation establishes the fact that the accused has a right to make prayer before the trial Court or High Court for referring the entire case property allegedly recovered from him to the Chemical Analyzer for report-as to whether or not it is a narcotic substance or drug. Thus a notice is required to be issued to the accused or prosecution, as the case may be, when an application for destruction of the property is moved by any party and while exercising powers of suo motu, the Court shall issue notice to the prosecution and the accused.

14. It is surprising to note that on 12-5-1998 S.H.O, Police Station Satellite Town, Mirpurkhas moved an application for destruction of the case property, which was not signed by the prosecutor before the Judicial Magistrate (P.W.4), who had no jurisdiction to try the case, but passed the order "arrange program at 4 pm" without giving any notice to the prosecution or accused or passing any appropriate order for allowing the application, without permission of the trial Court and preparing the samples destroyed the property on the same date. The entire process of destruction was highly illegal, objectionable and for that the Magistrate should be taken to task and the matter shall be reported to the High Court for taking appropriate action, as deemed fit, in accordance with law.

15. As no opportunity was given to the accused to protect his right in the proceedings of destruction of property, therefore, he was prejudiced in his defence, which cannot be cured under section 537, Cr. P. C.

16. After considering the material available record, we are of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, he is entitled to the benefit of doubt, which was accordingly given to him, while passing the short order dated 6-1-2010.

17. Above are the reasons of our said short order, which reads as under: "For the reasons to be recorded later on, while accepting the appeal of the appellant, his conviction and sentence, passed by the Courts below, are set aside. He is acquitted of the charge and be released forthwith from the Jail, if not required in any other case." M.H./A-8/S Appeal allowed.