2024 CCJ 37

Other citations: 2023 LHC 2967 = 2024 PCrLJ 385

[Lahore High Court]

Before Sardar Muhammad Sarfraz Dogar and Ali Zia Bajwa, JJ

Shahadat Ali and others—Appellants

versus

The State and others—Respondent

Criminal Appeals Nos. 1303 and 2096 of 2019 and Capital Sentence Reference No. 15-N of 2018, decided on 3^rd May, 2023.

HEADNOTES

(a)   Control of Narcotic Substances Act (XXV of 1997) —

— S. 9 — Possession of narcotics — Safe custody — Scope — Chain of custody begins with the recovery of the seized drug by the police and includes the separation of the representative sample (s) of the seized drug and their dispatch to the Narcotics Testing Laboratory — This chain of custody, is pivotal and the prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure — Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction. [Para. No. 7]

The State through Regional Director ANF v. Imam Bakhsh (2018 SCMR 2039) relied.

(b)   Control of Narcotic Substances (Government Analysts) Rules, 2001 —

— Rr. 5 & 6 — Receipt in laboratory and examination of sample with reference to Test Memorandum — Report of result of test or analysis — Scope — A complete mechanism has been given in Rule 5 and 6 of The Control of Narcotic Substances (Government Analysts Rules, 2001), the Chemical Examiner is required to adopt complete procedure and then the report is to be submitted after referring necessary protocols and mentioning the tests applied and their results. [Para. No. 11]

The State through Regional Director ANF v. Imam Bakhsh (2018 SCMR 2039); Khair-Ul-Bashar v. The State (2019 SCMR 930) relied.

(c)   Control of Narcotic Substances Act (XXV of 1997) —

— S. 9 — Possession of narcotics — Standard of proof — Scope — Since the provisions of the Control of Narcotic Substances Act, 1997 provides stringent punishments, therefore, its proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused. [Para. No. 12]

Muhammad Hashim v. The State (PLD 2004 SC 856); Ameer Zeb v. The State (PLD 2012 SC 380) referred.

(d)   Control of Narcotic Substances Act (XXV of 1997) —

— S. 32 — Articles connected with narcotics — Scope — A vehicle can be seized under the Control of Narcotic Substances Act, 1997 only in three situations, i.e. firstly, where it is carrying unlawful narcotics along with some lawful narcotics, secondly, where it is a part of the assets derived from narcotic offences and, thirdly, where narcotics have been recovered from its secret chambers, cavities or compartments, etc. Apart from the above mentioned three implied situations there is no other express or implied situation or provision in the context of the Control of Narcotic Substances Act which may make it permissible for seizure of a vehicle or conveyance in a case of narcotic. [Para. No. 14]

Javed Hayat and another v. The State (PLD 2006 Lahore 167) referred.

(e)   Control of Narcotic Substances Act (XXV of 1997) —

— S. 32 — Articles connected with narcotics — Scope — Section 32 deals with the final confiscation or release of the vehicle to the owner, after the conclusion of the trial, if he proves that he has no knowledge about the offence, which allegedly had been committed in the vehicle — Not only that an innocent owner of the vehicle is entitled to the return of the vehicle but the burden has been placed on the prosecution to establish that the owner had the knowledge of his vehicle being used in the crime — As far as the question of knowledge is concerned, undisputedly it is required to be proved by leading evidence and the learned trial Court can form such opinion after having taken into consideration the facts of the case. [Para. No. 16]

Khalid Masood Sandhu, Advocate for the appellant.

Muhammad Irfan Malik, Advocate/Special Prosecutor for ANF for the State.

Date of hearing: 3^rd May, 2023.

JUDGMENT

Sardar Muhammad Sarfraz Dogar, J:—Having faced trial in case FIR No.09/2015, dated 28.3.2015, offence under section 9(c) of The Control of Narcotic Substances Act, 1997, registered with the Police Station RD ANF, Lahore, the appellant, Shahadat Ali son of Waryam Ali was convicted by the learned Judge special Court (CNS), Lahore vide judgment dated 12.12.2018, under section 9(c) of The Control of Narcotic Substances Act, 1997 and sentenced him to death with direction to pay Rs. 1,00,000/- (rupees one lac only) as fine and in case of default the same shall be recovered as arrears of land.

2.           The appellant has challenged his above-said conviction and sentence before this Court by way of filing the instant Criminal Appeal No.1303 of 2019 under section 48 of The Control of Narcotic Substances, Act, 1997, whereas, a Capital Sentence Reference No.15-N of 2019 sent by the learned trial Court under Section 374, Act V of 1898 is also under consideration, for confirmation or otherwise of the sentence of death awarded to the appellant. However, the ANF/the State has also challenged the vires of judgment dated 12.12.2018 qua releasing of vehicle/car bearing Registration No.LZA-8277 (P-3) in favour of its original owner, by filing of Criminal Appeal No.2096 of 2019. We are deciding all these matters together through this consolidated judgment.

3.           Pithy facts of the prosecution case as propounded by the complainant/Investigating Officer Amjad Ali, Inspector (PW-1) through complaint (Exh.PE) on the basis whereof formal FIR (Ex.PE/1) was chalked out are that on 28.3.2015, the high-ups of ANF received information that a person namely Shahadat Ali would try to transport huge quantity of narcotics from Peshawar to Muridke on motorway via his car Balino bearing Registration No.LZA-8277. Pursuant to the said information, a raiding party comprising ANF officials/officers under the supervision of Kashif Musthaq AD, was constituted, which reached near the Motorway kala Shah Kako tool Plaza and started surveillance there. At about 7.00 a.m. a Suzuki Balino car having Registration No.LZA-8277, driven by the appellant, was seen coming from the Toll Plaza, which was signaled to stop but the driver instead of stopping the car accelerated its speed. The said car was stopped by blockage of the road through official vehicles. On interrogation, the driver told his name as Shahadat Ali (appellant) and conceded presence of six packets of opium beneath his driving seat. The appellant himself produced six packets of opium each weighing 1200 grams total weighing 7200 grams while taking it from the beneath of his driving seat. The complainant separated 10 grams of opium from each packet and prepared six sample parcels for chemical analysis. Besides, the appellant made further disclosure that he concealed charas in the secret cavities built in the dickey at the floor of the car. The appellant opened rear bumper of the car and there were three secret cavities beneath dickey at the floor of the car and produced 35 packets of charas. The complainant weighed the recovered 35 packets of charas and found each packet containing 1200 grams, total 42 kilograms charas. The complainant extracted 10 grams of charas from each packet of charas as sample for chemical analysis. The recovered narcotics as well as car bearing Registration No.LZA8277 were taken into possession by the complainant vide recovery memos (Exh.PA, PB & PC). Consequently, the complainant drafted the complaint (Exh.PE) and transmitted the same in the Police Station through Nusrat Ali constable, on the basis whereof formal FIR (Exh.PE/1) was chalked out.

4.           In pursuance of the above F.I.R., investigation was conducted by Amjad Ali, Inspector (PW-1), who during the course of investigation recorded the statements of witnesses under Section 161, Cr.P.C.; sent the samples for analysis to NIH. On completion of investigation, challan was prepared and sent to Court.

5.           The learned trial court, while taking cognizance of the case framed the formal charge against the appellant on 17.2.2016 under section 9(c) of CNSA, 1997, on account of recovery of 7.200 kgs opium and 42 kgs charas from the appellant. The appellant while resisting the charge pleaded not guilty and claimed trial. In order to prove the charge against the appellant, prosecution examined four witnesses and also tendered certain documents including reports of the NIH (Exh.PG/1-8) as part of prosecution evidence. On completion of prosecution evidence, statement of the appellant was recorded under Section 342 of Cr.P.C. through which he denied all the allegations against him and pleaded his innocence. The appellant, however, did not opt to either got his statement recorded under Section 340(2) of Cr.P.C. or to produce any defence evidence. On culmination of trial, the appellant was convicted by way of impugned judgment as is referred hereinbefore.

6.           Arguments advanced by the learned counsel for the appellant as well as learned Special Prosecutor for ANF have been heard and the record has been perused minutely.

7.           We have straightaway noticed that in the case in hand not only the prosecution failed to establish the safe custody and transmission of sample parcels to the office of NIH Islamabad but the reports submitted by NIH Islamabad (Exh.PG/1-8) was also legally laconic. It is significant to point out here that the chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample (s) of the seized drug and their dispatch to the Narcotics Testing Laboratory. This chain of custody, is pivotal and the prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction.

8.           In the instant case, Amjad Ali Inspector/complainant (PW-1) in his examination in chief deposed as under:-

“As per recovery memos, I handed over case property to Raqib Usman ASI/Muharrar for safe custody. I got confined the accused in the hawalat of the PS. On 30.3.2015, I got sent the accused on judicial remand. On 31.3.2015, I got transmitted sample parcels in the office of NIH, Islamabad through Safdar Abbas/C and same day, recorded statements U/S 161 Cr.P.C. of Raqib Usman ASI and Safdar Abbas/C.”

The deposition of complainant (PW-1) reflects that he has not handed over the sample parcels to the Moharrar in the Police Station for keeping the same in safe custody rather retain the same with him till its transmission in the office of NIH, Islamabad. On the other hand, Raqib Usman SI (PW-2) while appearing before the learned trial Court deposed as under:-

“On 31.3.2015, I handed over 06 sealed sample parcels of opium, 35 sealed sample parcels of charas , each weighing 10 grams, bearing seal of “AA” alongwith road certificate, English docket and sample seal of “AA” for chemical analysis to Safdar Abbas/C for their onward transmission to the office of NIH, Islamabad, intact.”

In the testimony of Moharrar (PW-2), he acknowledged the receiving of sample parcels alongwith the case property from the Moharrar and its entrustment to Safdar Abbas constable for its transmission to the office of NIH, Islamabad for analysis. Both the material prosecution witnesses i.e. complainant (PW-1) and Moharrar (PW-2) alleged that they have sent the sample parcels to the office of NIH, Islamabad but the reports of NIH Islamabad (Exh.PG/1-8) totally speaks otherwise that the samples were received in the said office “By Hand”. The reports (Exh.PG/1-8) does not bear name of any person, who submitted the sample parcels in the said office. In the attending circumstances, the safe custody and as well as transmission of sample parcels from the place of occurrence to the Police Station and office of NIH, Islamabad is missing.

9.           Needless to mention here that the chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. In this regard, guidance can be sought from the case of The State through Regional Director ANF v. Imam Bakhsh (2018 SCMR 2039).

10.         Apart from the above, we have noticed that the reports of National Institute of Health, Drugs Control and Traditional Medicines Division, Islamabad, Pakistan (Ex.PG/1-8) are not in consonance with the Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 and we have no doubt in our mind to observe that the reports of analyst are vague since these do not show the nature of protocols observed and test applied, hence, the said agency has violated the Rules 5 & 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which for reference reproduced as under:-

“5. Receipt in laboratory and examination of sample with reference to Test Memorandum.—(1) The sealed envelope containing the samples, received in the laboratory should be carefully opened and given a distinct laboratory number.

“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.

11.         A complete mechanism has been given in Rule 5 and 6 of The Control of Narcotic Substances (Government Analysts Rules, 2001), the Chemical Examiner is required to adopt complete procedure and then the report is to be submitted after referring necessary protocols and mentioning the tests applied and their results. In the instant case, required test was not applied on the basis of which chemical examiner has concluded that the samples sent to him for chemical examination contained opium or charas. The said agency has failed to provide the details that how much quantity, he has tested and when the report is not prepared in the prescribed manner then it may not qualify to be called a report in the context of section 36 of the Control of Narcotic Substances Act, 1997 and such report of National Institute of Health, Drugs Control and Traditional Medicines Division, Islamabad, Pakistan would loses its sanctity and that cannot be relied upon for the purposes of conviction. Guidance in this respect can be sought from The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039). Proceeding further, we could not take our eyes off the principles laid down in the case of Khair-Ul-Bashar v. The State” (2019 SCMR 930) wherein the Hon’ble Supreme Court of Pakistan held as under :-

“2. At the very outset we have noticed that the Report of the Punjab Forensic Agency dated 18.02.2016 is deficient in material particulars, i.e. while it mentions the names of the three tests performed, it does not provide results of these tests (except a consolidated result) and there is no mention of the test protocols applied in carrying out the said tests. In State v. Imam Bakhsh (2018 SCMR 2039) while discussing Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 (“Rules”) this Court held that the information required under the said Rule is mandatory. Hence, the Report of the Government Analyst, prepared in consequence of Rule 6, must provide for (i) tests and analysis of the alleged drug (ii) the results of the test(s) carried out and (iii) the test protocols applied to carry out these tests. These three elements form the fundamental and the core elements of a valid Report prepared by a Government Analyst. Non-compliance of Rule 6 and absence of any of these mandatory elements/requirements frustrates the purpose and object of the Act thereby diminishing the reliability and evidentiary value of the Report. Rule 6, inter alia, requires that the Government Analysts must specify the test protocols applied and, therefore, the Report must signify (by name) the protocols applied to carry out the test(s)/analysis, which would certify that full protocols have been followed while conducting the tests/analysis. In case the veracity of the Report is challenged by the accused or is being examined by the Court, compliance of full protocols can be called for from the Government Analyst and verified.

3…………………….

4…………………….

5. Section 36(1) of the Act also mandates that the Report must be in the prescribed form. This Court, in Ikramullah, while discussing the scope of Rule 6 of the Rules held that “…a complete mechanism is to be adopted by the Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to the necessary protocols and mentioning the tests applied and their results …Section 36 of the Control of Narcotic Substances Act, 1997 requires a Government Analyst to whom a sample of recovered substance is sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in “the prescribed form” and, thus if the report prepared by him is not prepared in the prescribed manner then it may not qualify to be called a report in the context of section 36 of the Control of Narcotic Substances Act, 1997 so as to be treated as a “conclusive” proof of recovery of narcotic substance from an accused person.” A signed report in the prescribed form under Section 36(1) of the Act does not refer to FORM-II, as argued by the DPG, but to the form, structure, design and content of the Report provided in the Rules. This is also so because the Act was promulgated on 11.07.1997 while the Rules were framed and gazetted on 28.11.2001 under the title of Control of Narcotic Substances (Government Analysts) Rules, 2001, almost after four years. Therefore, FORM-II was not known to the legislature at the time of the promulgation of the Act, hence section 36(1) simply required that the structure and content (form) of the Report must be as provided in the Rules. FORM II, hereunder, is a manifestation of Rule 6 but does not have a stand alone existence.

12.         Learned Law Officer present in the Court failed to furnish any explanation regarding such lapses of the prosecution. It is by now well settled that since the provisions of the Control of Narcotic Substances Act, 1997 provides stringent punishments, therefore, its proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused. Reliance in this respect may be made to the case of Muhammad Hashim v. The State (PLD 2004 SC 856). Dealing with the same proposition, the Hon’ble Supreme Court of Pakistan held in the case of Ameer Zeb v. The State (PLD 2012 SC 380) that harder the sentence, stricter the standard of proof.

13.         The epitome of above discussion is that the prosecution has badly failed to prove its case against the appellant beyond any shadow of doubt. We come to the conclusion that the findings of the learned trial court regarding conviction of the appellant are based on misreading, non-reading and mis-appreciation of evidence available on record and are not sustainable in the eye of law, therefore, the appellant deserves acquittal.

14.         So far as the instant case to the extent of Criminal Appeal No.2096 of 2019 lodged by the State/ANF calling in question the vires of judgment dated 12.12.2018 qua return of car bearing Registration No.LZA-8277 to its original owner is concerned, it will be relevant to point out here that a vehicle can be seized under the Control of Narcotic Substances Act, 1997 only in three situations, i.e. firstly, where it is carrying unlawful narcotics along with some lawful narcotics, secondly, where it is a part of the assets derived from narcotic offences and, thirdly, where narcotics have been recovered from its secret chambers, cavities or compartments, etc. Apart from the above mentioned three implied situations we have not been able to find any other express or implied situation or provision in the context of the Control of Narcotic Substances Act which may make it permissible for seizure of a vehicle or conveyance in a case of narcotic. Guidance is sought from the judgment of this Court reported as Javed Hayat and another v. The State (PLD 2006 Lahore 167).

15.         Now coming to the case in hand, it will be appropriate to refer to the two relevant provisions of the Control of Narcotic Substances Act, 1997, namely, the proviso of section 74 of the Act ibid, deals with the temporary custody while section 32 provides for confiscation or otherwise of such vehicle at the conclusion of the trial. The present case involves the latter statutory provisions of law which for the sake of ready reference is reproduced as under:-

“S. 32. Articles connected with narcotics.—(1) Whenever an offence has been committed which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, material, apparatus and utensils in respect of which, or by means of which, such offence has been committed shall be liable to confiscation;

(2) Any narcotic drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold alongwith, or in addition to, any narcotic drug, psychotropic substance or controlled substance which is liable to confiscation under subsection (1) and the receptacles or packages, and the vehicles, vessels and other conveyance used in carrying such drugs and substances shall likewise be liable to confiscation;

Provided that no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be committed.

16.         Section 32 of the Act, 1997 deals with the final confiscation or release of the vehicle to the owner, after the conclusion of the trial, if he proves that he has no knowledge about the offence, which allegedly had been committed in the vehicle. Not only that an innocent owner of the vehicle is entitled to the return of the vehicle but the burden has been placed on the prosecution to establish that the owner had the knowledge of his vehicle being used in the crime. As far as the question of knowledge is concerned, undisputedly it is required to be proved by leading evidence and the learned trial Court can form such opinion after having taken into consideration the facts of the case. Reliance is placed on Allah Ditta v.The State (2010 SCMR 1181). In the instant case, the prosecution alleged that the narcotics was concealed in the secret cavities of the said car but this Court while granting acquittal to the accused Shahadat Ali disbelieved the entire prosecution’s story. Admittedly the vehicle was not in the ownership of the accused Shahadat Ali and the same was just used by him. Admittedly the owner of the vehicle has not been challaned to court to stand trial as co-accused. It is nowhere either alleged or proved on record that the owner of the vehicle had any direct or indirect connection with the commission of offence under trial and in this back drop the vehicle is not liable to be confiscated under sections 32 and 33 of the Control of Narcotic Substance Act, 1997. Even otherwise there is no other claimant of the car in question. The rigours provided in section 74 of CNSA, 1997, are thus, not attracted to the present case as the bar provided in the said provision is not absolute. Reference in this respect, if needed, can be made to the cases of Muhammad Hanif v.The State and others (2011 SCMR 1471) and Allah Ditta v. The State (2010 SCMR 1181). Therefore, the learned trial Court has rightly observed that the car bearing Registration No.LZA-8277 be returned to its original owner. Learned counsel for the State/ANF has failed to point out any legal infirmity or illegality in the impugned judgment qua return of vehicle to its original owner.

17.         For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant Shahadat Ali beyond reasonable doubt. The Criminal Appeal No.1303 of 2019 is, therefore, allowed, the conviction and sentence of the appellant Shahadat Ali recorded by the learned trial court vide impugned judgment dated 12.12.2018 are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. However, the Criminal Appeal No.2096 of 2019 lodged by the State/ANF being meritless is dismissed.

18.         Resultantly, death sentence awarded to Shahadat Ali appellant is not confirmed and Capital Sentence Reference No.15-N of 2018 is answered in the negative.

Order accordingly