ABDUS SATTAR ASGHAR, J.---Ghulam Qambar and Khalid Mehmood faced trial in case F.I.R.
No.4/2002 dated 28-1-2002 registered with Police Station ANF Lahore, under sections 9(c)/15 of the Control of Narcotic Substances Act, 1997. At the conclusion of the trial vide judgment dated 14-11- 2003 learned Judge, Special Court CNS, Lahore convicted and sentenced each of them under section 9(c) read with section 15 of the Act ibid to imprisonment for life with a fine of Rs.3,00,000 or in default to suffer further S.I. For one year. They were also given benefit of section 382-B, Cr.P.C.
2. Both the convicts have lodged Criminal Appeal No.2227 of 2003 against their convictions and sentences.
3. As per F.I.R. (Exh.PA) lodged on the complaint of Muhammad Azam Khan SI/SHO (P.W.4), prosecution case is that high-ups of ANF Lahore received information through special Investigation Cell Islamabad that Qambar along with his brother Khalid who deal in the business of narcotics are in possession of heavy quantity of narcotic substance kept at their Dera situated in Ferozwalza district Gujranwala and if raided the same can be recovered; that a raiding party headed by Umar Hayat JaVed Deputy Director including the complainant (P.W.4) and Muhammad Sarwar ASI (P.W.3) along with the informer reached the Dera of the appellants at about 8-00 p.m. And captured the appellants; that the appellants got recovered 34 packets of Charas contained in a Tera from an Almirah and 20 packets of Charas contained in another Plastic Tora lying on a cot in the room; that on weighing total Charas came to 54 K. Gs; that five gram Charas from each packet was separated for chemical analysis and made into two sealed sample parcels; the remaining charas was also sealed into two parcels; that during investigation 7 bottles of liquor and .12-bore pump-action as well as 45 live cartridges were got recovered by Ghulam Qambar appellant from the under-construction house of Ghulam Abbas.
4. After completion of investigation report under section 173, Cr.P.C. Was prepared and submitted in the Court. The appellants were charged under section 9(c) read with section 15 of the Control of Narcotic Substances Act, 1997, to which they pleaded not guilty and claimed to be tried.
5. To prove the charge prosecution examined four witnesses. Muhammad Yasin Moharrir/HC (P.W.1) is scribe of the formal F.I.R. (Exh.PA/1). Rashid Mehmood constable (P.W.2) transmitted two sealed sample parcels containing Charas and the third parcel containing liquor to the office of Chemical Examiner Lahore for analysis. Muhammad Sarwar ASI (P.W.3) is the recovery witness. Muhammad Azam Khan, SI (P.W.4) is complainant as well as Investigating Officer of the case. Learned Special Public Prosecutor tendered in evidence an application (Exh.PG) filed under section 516-A, Cr.P.C. For drawing of samples and destruction of narcotics, Order of the Special Court (C.N.S.) dated 26-2- 2003 (Exh.PG/1) passed on the application under section 516-A, Cr.P.C., Certificate dated 4-4-2003 (Exh.PH) issued by learned Judicial Magistrate under section 516-A, Cr.P.C., Cerificate dated 2,1-7- 2003 issued by Judicial Magistrate under section 516, Cr.P.C. (Exh.PH/1) and closed the prosecution evidence.
6. At the conclusion of the prosecution evidence the appellants were examined under section 342, Cr.P.C. Whereby they discarded prosecution evidence and pleaded their innocence. In reply to question "Why this case against you and why the P. Ws. Have deposed against you" Ghulam Qambar appellant stated as under:-- "I was having a show room of cars. Tariq Pathan was also dealing in cars and tyres. Tariq Pathan had purchased from me a car. He had paid the down payment and for remaining price he took two months time from me. One day brother of Tariq Pathan, namely Tahir met me at Lorry Adda Gujranwala. I 'asked him to make the payment of balance amount as I had to make the payment to party. We exchanged hot words. He then communicated this incident to his brother Tariq Pathan.
After few days Tariq Pathan called me on telephone and threatened of dire consequences. After about 10/15 days of the aforementioned incident Tariq Pathan called on telephone and took me in confidence. He complained that I did not behave well with his brother, then he undertook to settle the accounts. The said Tariq Pathan called me on telephone one day prior to my arrest in this case and he informed me that he had car with him at Lahore and he told me that he would bring the car at Gujranwala and if the same suited me I may purchase the car and accounts will be settled. The day I was arrested, Tariq Pathan came to me on my show room and after 2/3 minutes of his arrival, the incident took place and I was arrested."
Khalid Mehmood appellant in reply to question "Why this case against you and why the P. Ws.
Have deposed against you" stated as under:-- "I have been working at Rawalpindi for the last 15 years on Naz Optical Kashmir Road, Saddar. 5/6 days prior to my arrest Tariq Pathan and 3-4 other persons came, which included a person namely Umar Hayat. Umar Hayat purchased from me 3-4 spectacles, some for reading and some of distance sight. I gave him the bill of the said spectacles. He disputed the bill saying that it was excessive. He told me that 3-4 other shops of the vicinity were charging less price. On this I and Umar Hayat exchanged hot words. I told him that I was ready to return the spectacles but he had to bear the cost of the glasses, on which he again exchanged hot words. When the raid was conducted, then I came to know that he was the same person who had a quarrel with me."
Both the appellants in their defence also made statements on oath under section 340(2), Cr.P.C.
And produced Muhammad Naseer (D.W.1) and Tanvir Aslam (D.W.2). Ghulam Qambar appellant tendered in evidence certified copy of F.I.R. No.3/2002 dated 28-1-2002 Police Station ANF Lahore in the offence under sections 9(c)/15, C.N.S.A. (Exh.DG), certified copy of the statement of Muhammad Sarwar ASI dated 29-10-2002 (Exh.DH), photo stat copy of the licence of pump action (Mark-A), photo copies of affidavits (Mark-B/1-70).
7. It is argued by the learned counsel for the appellants that they are falsely implicated in this case b the ANF on account of grudge of Tariq Pathan and Umar Hayat with the appellants; that all the P.Ws. Are police officials; that no independent witness from the public is produced by the prosecution; that the testimonies of the P.Ws. Are inconsistent and admit material discrepancies rendering them un-reliable; that the P.Ws. Have deposed false being associates and subordinate officials of the complainant failing to prove the charge beyond any shadow 9f doubt; that the learned trial Court has based the impugned conviction on unreliable testimonies of the prosecution witnesses; that the allegedly recovered Charas was not produced in the trial court; that the case property allegedly recovered Charas has illegally been destructed violative to the provisions of section 516-A, Cr.P.C.; that the appellants at the most could be held liable for keeping 270 grams of Charas comprising sample parcels; that the impugned convictions and sentences are against law and facts based on mis-appreciation of evidence causing serious miscarriage of justice to the appellants and liable to set aside.
8. Learned Deputy Prosecutor-General has resisted the appeal with the contentions that the prosecution has proved the charge to the hilt against the appellants through the statements of truthful P.Ws. Beyond any shadow of doubt; that in the peculiar circumstances police officials are as good witnesses as a public person could be; that in the cases of heinous offences people hesitate to come forward as witnesses to avoid animosity of the drug sellers as well as hazards of the trial; that minor and immaterial discrepancies in the testimonies do not affect merits of the prosecution case; that case property was destroyed by the Judicial Magistrate under the orders of the learned Special Judge i.e. The trial court; that the learned trial court has rightly convicted the appellants on the basis of salutary appreciation of ocular account produced by the prosecution on the record corroborated by the report of the Chemical Examiner therefore the appellants are not entitled to acquittal.
9. Arguments heard. Record perused.
10. Prosecution case is that the appellants got recovered 54 packets of Charas total weighing 54 K.G. And seven bottles of liquor from their Dera and that out of the seized substance five gram charas from each packet was separated and sealed into two sample parcels sent to the Laboratory for chemical examination besides sample of seized liquor and the remaining seized substance was sealed into separate two parcels. It is evident on the record that the case property was not produced before the learned trial court rather an application dated nil under section 516- A, Cr.P.C. (Exh.PG) is placed on the record which was lodged by Muhammad Afzal Asim Inspector/SHO Police Station Anti-Narcotics Force, Lahore to the learned Special Judge (CNS) Anti- Narcotics Lahore, seeking permission for destruction of the alleged case property of this case.
Prosecution has brought on record copy of the order dated 26-2-2003 (Exh.PG/1) passed on the above said application under section 516-A, Cr.P.C. Which reads below:-- "Since the case property falls under definition of Narcotics, the property be destroyed in accordance with provisions laid down under section 516-A, Cr.P.C. After retaining necessary samples.
Mr. Haider A meen, Judicial Magistrate (Sec.30), Control of Narcotic Substances, Lahore is deputed to get prepared the sealed samples from the case property (narcotics) in terms of section 516-A, Cr.P.C. And destroy the remaining quantity of narcotics under his direct supervision. He shall submit a certificate in this connection in the Court giving details of the proceedings."
Prosecution has also produced in evidence two certificates Exh.PH dated 4-4-2003 and Exh.PH/1 dated nil allegedly issued by Judicial Magistrate (Section-30), Lahore. Both are reproduced here under for ready reference:-- "Certificate under section 516-A, Cr.P.C. Dated 4-4-2003 (Exh.PH): CASE F.I.R. NO.4/2002 DATED 28.1.2002 UNDER SECTION 9(c)15, C.N.S.A., 1997 PS ANF LAHORE.
In compliance with the orders of the Special Judge (CNS) Lahore dated 26-2-2003, the undersigned reached at Police Station, Anti Narcotics Force, Lahore today where SHO Police Station Anti Narcotics Force, Lahore produced two sealed parcels containing Charas total weighing 53.730 Kgs and 7 sealed parcels containing liquor total number 7 Bottles before me for drawing necessary samples out of these parcels.
(2) On examination these sealed parcels have been found intact and correct in weight. I randomly selected 2 sealed parcel from the above parcels containing Charas and Liquor and marked them as Nos.1 to 2 and 1 to 7. I have drawn the following samples from above said sealed parcel containing Charas and Liquor by de-sealing and opening them: Sealed parcel No.1 50 grams Charas Sealed Parcel No.3 1-Bottle Liquor
(3) I have sealed these samples of narcotics as well as the parcels from which they were drawn under seal bearing words H.A. And handed over all the sealed parcels pertaining to this case to SHO PS ANF Lahore for safe custody and further proceedings under section 516-A, Cr.P.C."
"Certificate under section 516-A, Cr.P.C. Dated nil (Exh.PH/1): CASE F.I.R. NO.4/2002 DATED 28-1-2002 UNDER SECTION 9(c)15, C.N.S.A., 1997 PS ANF LAHORE.
Today on 21-7-2003 by the orders of learned Special Judge (CNS) Lahore dated 26-2-2003 at the proposed site for "Lahore Expo and Trade Centre" Johar Town, Lahore", the Incharge Police Station, Anti Narcotics Force, Lahore produced before me 2 sealed parcels of Charas weighing 53.680 Kgs and 6 parcels of liquor weighing 6 bottles seized in the above cited case for destruction. The parcels were correct in weight and duly sealed with the seal of H.A. Consequently, I have caused and ensured the destruction of the Charas contained in the above said parcels by burning. The certificate is accordingly issued and submitted in compliance with the order dated 26-2-2003."
11. At this juncture it may be expedient to reproduce provisions of section 516-A of the Code of Criminal Procedure, 1898, which reads below:-- "516-A. 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 subject 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 the property consists of explosive substances, the Court shall not order it to be sold or handed over to any person other than a Government Department or office dealing with, or to an authorized dealer in, such substances: Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the 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 an inquiry or proceeding in relation to such offence before any authority or Court."
12. The expression "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" used in the second proviso to section 516-A, Cr.P.C. Is of grave importance. Object of the above expression is obvious that the case property is at least once produced before the trial Court before its destruction. Contrary to the above, in the instant case perusal of the afore-referred order dated 26-2-2003 (Exh.PG/1) passed by the learned trial Court and certificates Exh.PH dated 4-4-2003 and Exh.PH/1 dated nil issued by the learned Judicial Magistrate reveal that the case property was never produced before the learned trial court for preparation of sample before destruction. It is also pertinent to mention that no notice was given to the appellants/convicts by the learned trial court before passing of order under section 516-A, Cr.P.C. For destruction of the case property. Needless to say that appellants have a right to seek chemical examination of the entire case property at the trial or appellate stage. Non-issuance of a notice to the accused before destruction of the case property during the trial therefore is likely to cause a serious prejudice to the right of the accused.
13. To discharge the onus of proof it was incumbent upon the prosecution to establish that 54 Kgs.
Charas was recovered from the possession of the appellants and the same was kept in safe custody as incriminating material/case property to produce the same before the court. Unless the incriminating material was produced before the court and the court was satisfied that the alleged recovery was made, sealed and kept properly in accordance with law it will be difficult to endorse that the accused can be held liable for the alleged recovery. In the absence of any notice to the accused or his counsel an order of destruction of the case property made during pendency of the trial therefore is violative to the principle of due process of law and thus furnishes a valuable right to the accused/appellants to object against destruction of the case property allegedly recovered from their possession. It therefore causes serious prejudice to their right of opportunity of hearing.
14. In this case out of the seized 54 Kgs. Charas only 270 grams were separated and sent to the Chemical Examiner and the remaining was allegedly destroyed on the request of the prosecution with permission of the learned trial Court under section 516-A, Cr.P:C. Without serving any notice to the accused/appellant or their counsel during the trial. The alleged destruction therefore being violative to the due process of law and without providing an opportunity of hearing to the appellants/accused lacks the legal sanctity and thus cannot be endorsed. Reliance be made upon Nawab Ali v. The State (1995 PSC (Criminal) 246 Federal Shariat Court). Relevant extract from the above cited case is reproduced as follows:-- "The provision contemplates and obligates the court which is competent to try the case to secure the sample and then cause the destruction of the remaining property under its control and supervision. Any laxity in the matter of securing samples or causing of destruction of remaining case property is bound to cause disastrous consequences. Further any illegality or serious irregularity in securing 'sample would deprive the prosecution the benefit of treating the sample as the whole of the case property and the prosecution case may therefore, fail. Further held: In the instant case, the samples were not secured by the competent Court. The whole proceedings of securing the samples and destruction of the remaining property vide certificate Exh.PB/2 is thus illegal and of no evidentiary value as these proceedings were taken by a Magistrate Ist Class who was admittedly not competent to try the case."
15. Benefit of non-production of incriminating material/case property before the trial court therefore cannot be extended to the prosecution rather the same would certainly go to the accused/appellants. Careful appraisal and analysis of the facts of this case leads us to formulate the opinion that the prosecution has failed to establish its case under section 9(c) of the Control of Narcotic Substances Act, 1997 against the appellants, however keeping in view the prosecution evidence with regard to securing of 270 Grams of Charas as sample from the allegedly recovered contraband Charas for chemical examination and in the light of report of the Chemical Examiner (Exh.PF) declaring the sample article as Charas case of the prosecution is established only to the extent of 270 grams of Charas against the appellants. Therefore, the appellants are liable for this quantity under section 9(b) of the Control of Narcotic Substances Act; 1997 which is punishable with seven years' R.I.
16. For the above reasons, this appeal is partly allowed, the conviction and sentences of imprisonment to the appellants under section 9(c) of the Act ibid including the fine are set aside.
The appellants are convicted under section 9(b) of the Act and sentenced to seven years' R.I. Each.
Appellants are behind the bars for the last more than 11 years since 28-1-2002 and have already served more than the sentence of seven years awarded to them. The appellants therefore shall be released from jail forthwith if not required in any other case.