CH. ABDUL AZIZ, J.---This judgment shall dispose of the afore-captioned appeal filed by Dilawar Hussain (appellant) against his conviction and sentence inflicted upon him by learned Chairman Drug Court, Multan vide judgment dated 28.04.2012, whereby, while acquitting co-accused namely Babar Hussain, Salah-ud-Din and Hamayun, convicted and sentenced the appellant in the following terms:-
1. Under section 23(1)(a)(i) of the Drugs Act, 1976 to undergo RI for six years as well as to pay fine of Rs,200,000/- and in default whereof to further undergo six months' SI.
2. Under section 23(1)(a)(v) of the Drugs Act, 1976 to undergo RI for three years.
All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.
2. Briefly stated the facts of prosecution case are that Fayyaz Rasool, Drug Inspector instituted complaint No,734/DIM dated 05.06.2007 under sections 23/27 of the Drugs Act, 1976, stating therein that on 01.07.2006; he inspected a premises situated in Mohallah Nawazabad Eid Gah Road, Multan and came across Babar Hussain son of Abdul Rehman (since acquitted) and seized different types of medicines/drugs/articles which were seventeen in number. The recovered substance was taken into possession by incorporating its detail on Form No,5 as it was found to be in contravention of Drugs Act, 1976 due to following reasons:-
(1) Manufacturing of drugs without licence;
(2) Manufacturing of un-registered drugs;
(3) Manufacturing of spurious drugs.
The ease was referred to the Provincial Quality Control Board, Lahore vide letter No,1855/DM dated 01.07.2006, which accorded permission for registration of FIR against Babar Hussain son of Abdul Rehman, Salah ud Din son of Babar Hussain, Humayun Hussian son of Babar Hussain and Dilawar Hussain son of Babar Hussain. Accordingly permission was granted by the Provincial Quality Control Board, Lahore against all the four accused persons, vide letter No,PQCB/F-62/06 dated 01.07.2006. The Police also declared all the four accused persons guilty and submitted report under section 173, Cr.P.C. The detail of case was reported to Chairman, Provincial Quality Control Board, Lahore vide letter No,2218/DIM dated 28.08.2006. The Provincial Quality Control Board, Lahore also issued show-cause notice vide, letter No,Secy-R389- 07-06/426/06, dated 05.08.2006 and also granted sanction for prosecution to launch the case vide their letter No,PQCB-R-389-07/06 and R- 426-07/06 dated 19.01.2007.
During investigation, out of recovered substance, the samples of Sulphadimindine 100 ml Batch No,UN 1290 statedly manufactured by Messrs Star Laboratory, Lahore and ivermectin 100 ml manufactured by Messrs Razak Labs, made in China were sent to the Government Analyst Punjab, Lahore and Provincial Quality Control Board, Lahore vide letter No,1851-52/DIM dated 01.07.2006 as well as to respective manufacturer. The Government Analyst Punjab, Lahore declared the samples of Sulphadimidine injection as spurious and substandard vide its report (Exh.PE) and found the samples of Ivermectin as substandard and misbranded vide its report (Exh.PF). Likewise, the manufacturers disowned the samples by reporting that these are not manufactured by them.
3. On submission of complaint, accused were summoned to face the trial and after observing all legal requirements were charge sheeted on 04.04.2008. In order to prove its case against the appellant and his co-accused, prosecution produced as many as seven PWs including Fayya z Rasool Drug Inspector (PW.1), Muhammad Akhtar Butt (PW.2) and Muhammad Aleem Bhutta Naib Qasid (PW.3), who narrated the detail of recovery proceedings and signed Form No,5 (Exh.PA). In order to prove that the recovered drugs/medicines were spurious, substandard and misbranded, the report of Government Analyst (Exh.PF) was tendered in evidence.
4. Learned trial court also examined the appellant and his co-accused under section 342 of Cr.P.C.
Dilawar Hussain (appellant) in response to question "Why the case against you and why the PWs have deposed against you" replied as under:- "In fact, Muhammad Zakrya and Khyzer Hayat whose names are present at form No,5 as recovery witnesses but have not been produced by the prosecution, used to make spurious Sulphadimindine and Invermectin as there are so many cases registered against them for manufacturing spurious Sulphadimindine and they are proclaimed offenders, they used to manufacture and sell those items under the name of Star Laboratories through the distributor of Star Laboratories namely Ishtiaq Bhatti. When Star Laboratories got the knowledge, they pressurized their distributor who just to save himself after conniving with the Drug Inspector raided our house. Fake recovery of Sulphadimidine and Invermectin was put to me which in fact were not recovered from my house from me."
Neither the appellant made statement under section 340(2) of Cr.P.C. nor produced any evidence in his defence. The learned court after the completion of trial, convicted and sentenced the appellant detailed above.
5. It is contended by the learned counsel that the appellant was innocent in the instant case; that the perusal of the impugned judgment reveals that the conviction awarded to appellant is neither based on some incriminating evidence nor on some legal reasoning; that as per admitted facts, the drugs were recovered from a house which was being inhabited jointly by four persons; that this is also an undisputed fact that at the time of raid, the appellant was not present in the premises from where the spurious drugs were recovered; that during search proceedings, the requirement of section 103 of Cr.P.C. was not complied with; that it reasonably evinces from Form No,5 that at the eventful time only Babar Hussain was present in the house; that the prosecution evidence was disbelieved to the extent of Babar Hussain and two others namely Salah ud Din and Humayun Hussain, resultantly, they were acquitted from the case and on same set of evidence, the appellant was convicted; that from the bare perusal of the impugned judgment, it reveals that appellant was awarded conviction solely on account of weakness of defence; that recital of prosecution case gives rise to a reasonable doubt about the involvement of the appellant in the commission of crime, however, its benefit was withheld from him and that since the prosecution miserably failed to prove the guilt of appellant through confidence inspiring evidence, hence, he is entitled to be acquitted from the case.
6. The learned law officer strongly controverted the arguments advanced on behalf of appellant and submitted that it was proved from the prosecution evidence that a sizeable quantity of medicines was recovered from the house of appellant, which on examination was found to be spurious; that the detail of spurious and substandard drugs is mentioned in Form No,5, which was prepared immediately after the raid; that recovery of these drugs was proved from the confidence inspiring evidence of witnesses, who had no animus against the appellant; that during trial, the appellant miserably failed to offer any justification worth acceptance for the possession of recovered drugs; that during raid, not only substandard drugs but an electric sealing machine was also recovered from the house of the appellant and that since the appellant was found involved in the nefarious activity of substandard drugs manufacturing, hence, he deserves no leniency.
7. Arguments heard. Record perused.
8. A wade through record unveils that the case of prosecution primarily hinges upon the statement of Fayyaz Rasool Drug Inspector, Muhammad Akhtar Butt and Muhammad Aleem Bhutta Naib Qasid (PW.1 to PW.3), who narrated the detail of search and recovery of spurious drugs and are witnesses of Form No,5 (Exh.PA). Likewise, in order to prove the recovered drugs/medicines as spurious, the prosecution placed reliance on the report of Government Analyst (Exh.PF).
9. It divulges from the record that the instant case is arising out of a raid conducted by Fayyaz Rasool, Drug Inspector Zone-1 Multan (PW.1) at a premises situated in Mohallah Nawaz Abad, Eidgah Road Multan. During these proceedings, a bulk of medicines was recovered from the premises, which according to the report of Government Analyst (Exh.PE and Exh.PF) were found to be substandard, spurious and misbranded. For this occurrence, law was set into motion through a written application (Exh.PK) moved on behalf of Fayyaz Rasool (PW.1), after obtaining permission for registration of FIR from Provincial Quality Control Board, Punjab. According to record, the premises was raided by Drugs Inspector on 01.07.2006 at about 12:00 Noon, whereas the FIR (Exh.PK/1) was registered at about 5:10 p.m. on the same day. During this period, the complainant counted the recovered medicines which are comprising upon 23 injections of Sulphadimindine, 2000000 white colour small tablets, silver vial seals approximately 1500 in number, empty glass vials 10 cc which were 14000 in number etc. Apparently, it does not look humanly possible to count the above- mentioned medicines, within such a short span of time. It is further observed that Faiz Rasool (PW.1) at the same time also sought permission for the registration of FIR from Provincial Quality Control Board, Punjab. In this backdrop, it is observed that the place of occurrence is situated in District Multan whereas Office of Provincial Quality Control Board, Punjab is situated in Lahore. The prosecution case is in eternal silence as to how the permission was obtained from PQC Board, Punjab so swiftly. Similarly, it is noticed that no time of raid is mentioned in crime report (Exh.PK/1).
The afore-mentioned features are giving rise to a reasonable doubt regarding the mode, manner and the time of occurrence.
10. We have also scanned the evidence of three witnesses of search and seizure proceedings namely Fayyaz Rasool, Muhammad Akhtar Butt and Muhammad Aleem Bhutta (PW.1 to PW.3). It evinces from their testimony that the spurious drugs were recovered from a house situated in Mohallah Nawaz Abad, Eidgah Road Multan, during a raid conducted on 01.07.2006 at about 12:00 Noon. At the eventful time, only Babar Hussain (since acquitted) was present in the house. So far as, the appellant is concerned, neither he was present in the house at the relevant time nor paid a visit, even for a short while. It is noticed that none of the three witnesses of search and seizure proceedings named Dilawar Hussain (appellant) in their statements before the court, so as to establish his connection with the manufacturing or possession of the recovered substance. It is evident from the statement of Fayyaz Rasool (PW.1) that the house in question was being jointly inhabited by Babar Hussain (acquitted), Salah ud Din (acquitted), Humayun Hussain (acquitted) and Dilawar Hussain (appellant). No evidence was brought on record to connect the appellant with the recovered substance. Hence, we are constrained to hold that prosecution failed badly to prove an essential ingredient of an offence under section 23 of the Drugs Act, 1976.
11. It is further noticed that none of the witnesses of search. and seizure are residents of the vicinity where the place of recovery is situated. According to record, Muhammad Akhtar Butt (PW.2) is resident of a locality known as Shamsa Abad Colony, Multan, whereas Muhammad Aleem Bhutta (PW.3) is a Naib Qasid working in the office of EDO, Health Multan. From such feature of the case, we have arrived at an irresistible conclusion that the requirement of search and seizure, as contemplated in section 103 of Cr.P.C. have not been complied with. Though it is argued by the learned law officer that the requirement of section 103 of Cr.P.C. is not applicable in search and seizure proceedings conducted under the Drugs Act, 1976, however, we are afraid that such argument is in conflict with section 18(2) of Drugs Act, 1976. It would be in fitness of things to reproduce the foregoing provision which is as under:- "18(2) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), insofar as they are not inconsistent with the provisions of this Act, shall apply to searches and seizures made under this Act."
From above, it can safely be gathered that the provisions of Criminal Procedure Code are applicable to the search proceedings conducted under the Drugs Act, 1976. As a necessary corollary, the provisions of Chapter-VII Part-D comprising upon sections 100 to 103 of Cr.P.C. attract in such like cases. Section 101 of Cr.P.C. pertains to search warrants, whereas it is postulated in section 103 of Cr.P.C. that during search, the officer conducting the proceedings is bound to call upon two or more respectable inhabitants of the locality. A similar question came under consideration in case titled as Drug Inspector v. Muhammad Ashiq Mirza and others (NLR 1993 Cr.LJ 102) wherein it was observed as under:- "Learned counsel has also referred to the provisions of section 18(2) of the Drugs Act, 1976 and those of section 103 of the Cr.P.C. with regard to the searches and seizure. It has been submitted that no respectable person of the locality was joined by the Drug Inspector at the time of the seizure of the sample taken in this case and as such the recovery effected in this case cannot be said to have been made in accordance with law. This position appears to be correct and the State has also miserably failed to controvert this aspect of the matter. Reliance has also been placed in this behalf on NLR 1985 U.C. 386 (2) by virtue of which the then Drug Court for Punjab had also found that non-compliance of the provisions of section 103, Cr.P.C. also got to help the accused in claiming acquittal."
12. There is yet another aspect, which has not skipped from our notice and is of immense importance. The Drugs Act, 1976 is a special law, enacted to regulate the manufacturing of drugs/medicines. On one hand, it contains penal provisions for the violation of conditions mentioned therein and on other hand, it provides the procedure for taking of samples and initiation of prosecution. Similarly, the qualification of the person, competent to lodge a complaint under the foregoing law are also provided therein. According to section 30, no prosecution can be instituted under the Drugs Act, 1976 except by a Federal or a provincial inspector. In this regard, we consider it expedient to reproduce section 30(1) of Drugs Act, 1976 which is as under:- "30. Cognizance of offence.---(1) Subject to the provisions of section 19, no prosecution shall be instituted under this Chapter except:
(a) by a Federal Inspector, where the prosecution is in respect of a contravention of clause (h) of subsection (1) of section 23 or section 24 or any of the provisions of this Act or the rules relating to the import or export of drugs or the manufacture for sale, or sale, or a drug which is not for the time being registered or for the manufacture for sale of which a licence is not for the time being in force; or
(b) by a Provincial Inspector: Provided that, where the public interest so requires, the Federal Inspector may, with the prior permission of the Federal Government institute a prosecution for a contravention of any other provisions of this Act.
So far as, the appointment of Provincial or Federal Drugs Inspector is concerned, it is made under section 17 of Drugs Act, 1976. It is mandatory under section 17 that such person must be having prescribed qualification and his appointment should be notified in the official gazette. As a necessary corollary, during a prosecution held under the Drugs Act, 1976 the appointment notification of Drug Inspector must be brought on record. The failure or omission to tender in evidence the notification, is to adversely affect the case of prosecution. While holding so, we are enlightened from a judgment of this Court reported as Shaukat Hayat v. The State (1982 PCr.LJ 48), wherein it was observed as under:- "Apart from the question as to whether the omission to notify the appointment of Inspector in the official gazette detracts from his authority to function under the Drugs Act, which may be dealt with in an appropriate case in future, the record shows that no order of appointment has been produced at all in this case."
Similarly, this proposition was expounded upon by the Hon'ble Supreme Court of Pakistan in a case reported as The State through Advocate-General High Court of Singh, Karachi v. Iqbal Ahmad Khan (1996 SCM R 767) with the following observation:- "Mr. A.A. Siddiqui, learned AOR for the petitioner contended that it is a question of public importance and the miscreants who sell spurious and counterfeit drugs should not be allowed to go scot free on mere technical grounds. He has, however, not been able to produce even today, a notification by the Federal Government of the Provincial Government by which Mr. G.R. Halipota had been appointed as an Inspector of Drugs."
It will be equally important to make reference to another observation expressed in the later part of the afore-mentioned judgment by the Hon'ble Supreme Court of Pakistan, which is as under:- "The requirement of law and precondition imposed for prosecution have to be complied with by the complainant and the prosecuting agency. It was the duty of the prosecution to have produced the relevant notification for appointment of Inspector along with the complaint. It was not the duty of the accused or the defence counsel to have asked the complainant to produce any notification or to prove his capacity to 'institute prosecution as required by section 30. This requirement of law is meant to be complied with by the prosecution and. if no objection has been raised by the defence at the trial, it would not validate the proceedings which otherwise are vitiated for non-compliance of section 30."
In the above backdrop, we have made an in-depth analysis of the record and have not been able to come across any notification issued under section 30 of Drugs Act, 1976 regarding the appointment of Faiz Rasool (PW.1) as Drug Inspector. There is no cavil to the proposition that if the law requires a thing to be done, then it must be performed in the same manner. This omission has damaged the prosecution case and has rendered it beyond repair.
13. It needs no elaboration that the appellant has been handed down with a guilty verdict for manufacturing spurious and misbranded drugs. In our considered view, such accusation is to be proved on the basis of some positive evidence and not through hypothesis alone. In our view, primarily, the prosecution was obliged to prove that the recovered drugs were belonging to none other than the appellant. Similarly, in order to bring home the guilt of appellant, beyond any scintilla of doubt, some evidence should have been led to substantiate that the appellant was in constructive possession of the spurious drugs and was involved in its manufacturing. A scrutiny of the record unveils that prosecution failed to discharge above-mentioned onus.
14. There is another aspect which has persuaded us to lean in favour of appellant. According to record, appellant along with three other persons namely Babar Hussain, Salah ud Din and Humayun Hussain was prosecuted with the charge of manufacturing spurious and misbranded drugs. It spells out from the impugned judgment that the prosecution evidence was not considered worth consideration, against the afore-mentioned three accused and all of them were acquitted from the case. We do not have any hesitation to hold that since no evidence is brought on record to draw a distinguishing line between the case of appellant and the acquitted co-accused, hence, he cannot be awarded conviction on the same set of evidence. In such a situation, to prove the guilt of the appellant, independent corroboration is required, which in the instant case is missing.
While holding so, this Court is guided by the Judgment of Hon'ble Supreme Court of Pakistan in the case of Akhtar All and others v. The State (2008 SCM R 6) wherein it was observed that:- "It is settled law that eye witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration".
15.The facts and circumstances mentioned above, cumulatively, lead this court to draw a conclusion that prosecution remained unsuccessful in proving the charge beyond any shred of doubt. Consequently, while giving benefit of doubt to Dilawar Hussain (appellant), Criminal Appeal No,359 of 2012 is allowed, his conviction and sentence is set aside and is acquitted of the charge.
Dilawar Hussain (appellant) is on bail and as such his sureties stand discharged from the bail bonds.