1. The above said accused persons have been sent up to face the trail of case FIR No.41 dated 21-07-2012, registered U/S 9-C, 14 & 15 of CONTROL OF NARCOTIC SUBST ANCES ACT, 1997, Police Station ANF RD North Rawalpindi.
2. Brief facts of the case are that Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) has set the law into motion while sending a written complaint Exh-PA to SHO Police Station ANF RD North Rawalpindi, while stating that on 21-07-2012, at about 14:00 hours, he alongwith other police officials namely Mehboob Hussain Shah, Saif Ullah, Muhammad Naveed, Constables were present in Police Station ANF RD North Rawalpindi, where Syed Mehboob Hussain Shah handed over a letter bearing No. 3(44)/ANF/1R/Law/201 1 dated 20-07-2012 issued by Lieutenant Colonel Touqeer Abbas Zaidi, Joint Director ANF RD Rawalpindi to Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) and then in the light of above referred letter Exh-PB Syed Imtia z Hussain Shah, Sub Inspector (PW-35) has prepared complaint Exh-PA for registration of FIR against owner namely Muhammad Hanif Abbasi, Mst. Razia Zahid Bakhtawari and some of employees of Grays Pharmaceutical for misuse of quota of Ephedrine of 500 Kgs, which was allocated for preparation of medicine; As result thereof an inquiry was conducted by Abid Zulfiar , Deputy Director , (investigating officer of FIR No 40/201 1), Syed Imtiaz Hussain Shah, Sub Inspector perused said inquiry report; As per said inquiry report, Ministry of Health Islamab ad, issued ephedrine quota, to some of Pharmaceutical Companies, in excess of prescribed limit; As per record received from Ministry of Health during inquiry , out of 99 Companies, 28 Companies were searched, which previously did not obtain Ephedrine quota, Grays Pharmaceutical was also included in above referred Companies, which obtained Ephedrine quota for the first time; As per inquiry report after obtaining quota of Ephedrine, said Companies did not prepare medicine from said Ephedrine and Grays Pharmaceutical has not produced any record, only samples were prepared and Ephedrine quota while using illegally , sold the same to smugglers of drugs and obtained illegal amount; On the basis of complaint Exh-P A, case FIR No. 41/2012 dated 21-07-2012 u/s 9 (c) 14&15 of CNSA was registered in PS ANF RD North Rawalpindi. AD Shahzad Ali Kawish on the basis of letter Exh-PB directed Syed Imtiaz Hussain Shah, Sub Inspector/ SHO for registration of case and to investigate the same.
Syed Imtiaz Hussain Shah, Sub Inspector (PW-35), started investigation of the case and secured the letter written by Lieutenant Colonel Touqeer Abbas Zaidi, JD Regional Directorate ANF RD North Rawalpindi vide recovery memo Exh-PB, attested by the witnesses; Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) recorded the statements of PWs u/s 161 of Cr.PC; On the same day, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) joined Nadeem Anjum UDC and Deputy Director Abid Zulfiqar, Law Branch Regional Directorate ANF Rawalpindi and recorded the statement of Nadeem Anjum UDC u/s 161 of Cr.PC; Abid Zulfiqar, Deputy Director Law Branch RD ANF Rawalpindi has produced before Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) an inquiry report Exh PD alongwith the complete file of United Plastic Jars Supplier Exh-PEE consisted of 75 pages P1 to 75, complete file of AB Pharma Distributor Exh-PFF consisting of 58 pages P1 to 58, file of AB Pharma Exh-PGG consisting of 09 pages P1 to 09, marketing file alongwith statement of Hammas Pharma Distributor Exh-PHH consisting of 56 pages P1 to 56, distribution file of Hammas Pharma Distributor Exh-PII consisting of 144 pages P1 to 144, invoices file of Hammas Pharma Exh-PJJ consisting of 13 pages P1 to 13, marketing file of Arfat Traders alongwith invoices issued by Grays Pharma Exh-PKK consisting of 17 pages P1 to 17, statements of employees of Grays Pharma Exh-PLL consisting of 21 pages P1 to 21, agreement file between Etihad cargo contractor and Pakistan Railway Exh-PMM consisting of 20 pages P1 to 20, 24 Jars having De-ASM tablets P1 to 24, which Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) took into possession vide recovery memo Exh-PD attested by the witnesses namely Abbas Ali, ASI and constable Mehboob Hussain Shah Constable. Syed lmtiaz Hussain Shah, Sub Inspector (PW 35) recorded the statements of PWs u/s 161 of Cr.PC.
On 23-07-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) alongwith Doctor Fakhar Ud Din Amir Federal Inspector of drug (PW-13) and Sub Inspector Shakeel visited the Grays Pharmaceutical industrial Zone block. Syed lmtiaz Hussain Shah, Sub Inspector (PW-35) joined Ghazanfar Ali Production Manager of Grays Pharma into the investigation who produced before PW-35, 19 Dyes P1 to P19, 19 Upper Punches with the PK mark P1 to P19, 19' lower punches of ZP-19 rotary machine, (which were used for manufacturing of De-ASM tablets), 10 secured the above said recovered dyes and punches vide recovery memo Exh-PJ attested by the witnesses Doctor Fakhar Ur Din Amir and Shakeel Ahmed Sub Inspector. Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) recorded the statements of PWs u/s 161 of; Cr.PC.
On the same day, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) came back in the office of Regional Directorate ANF Rawalpindi; Doctor Fakhar Ud Din Amir after analyzing the above said recovered dyes and punches gave opinion and issued a certificate Exh-PK/1 which PW 35/10 took into possession vide recovery memo Exh-PK attested by the witnesses. Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) recorded the statements of PWs u/s 161 of Cr.PC.
On 01-08-2012, Syed lmtiaz Hussain Shah, Sub Inspector (PW-35) investigated Asif Sheikhani Proprietor of Arfat Traders Distributor of Grays Pharma (PW-21) and recorded his statement u/s 161 of Cr.PC; The said Asif Skeikhani sought time for production of the distribution record belonging to the De-ASM Tablets which was duly granted, but of no avail. Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) summoned Zulfiqar Sheikhani owner of Arfat Traders Distributor Karachi (PW-23) and asked him to join the investigation and to produce the record regarding the distribution of De-Asm Tablets, despite that he did not join the investigation.
On 09-08-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) investigated Ghazanfar All production Manager and Nasir Khan Quality Control Manager of Grays Pharmaceutical. During the course of investigation Ghazanfar All production Manager made a disclosure that they had manufactured 22 Batches of De-ASM tablets with the Ephedrine quota of 500 Kgs; During the course of investigation, he also produced before 10, the record of batches of manufacturing of tablets De-ASM which was consisted of 19 files of different batches (each file consists of 16 pages) alongwith the original inspection book of Grays Pharma company having a license No. 000518. The original inspection register was consisting of 100 pages. PW-35/I0 obtained the signatures of Ghazanfar All Prpduction Manager and Nasir Khan Quality Control Manager of Grays Pharmaceutical on page numbers 63 of inspection book and secured the above said file and inspection book vide recovery memo Exh-PL attested by Naheed Ahmed and Ahsan Ayub Constable. Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) recorded the statements of PWs u/s 161 of Cr.PC. Despite of the opportunities, the accused could not produce any further proof regarding manufacturing of De-ASM tablets, its distribution, its transportation, delivery challan and gate form. Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) summoned Rana Mohsin Khurshid Marketing Manager and Siraj Ahmed Abbasi, Facto ry Manager to join the investigation alongwith the record on 12-08-2012. Neither they joined the investigation, nor produced the requisite record.
On 09-08-2012, Syed Imtiaz Hussain Shah, Sub Inspebtor (PW-35) joined Mst. Razia Zahid Bakhtawary (PW-21) in the investigation, who was the 50 percent share holder of Grays Pharmaceutical Company; On the same day, she joined the investigation alongwith her Husband Zahid lqbal Bakhtawary in presence of lady constable Shagufta and got recorded vher statement u/s 161 of Cr.PC. It transpired from her statement that she was used to look after the business affairs of Grays Pharmaceutical in her house; She was also the owner of D-Watson pharmaceutical company; PW-35/I0 interrogated her, regarding the Ephedrine quota and manufacturing of De-ASM tablets and its distribution from Grays Pharmaceutical, but she showed her ignorance.
On 11-08-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) joined Muhammad Hanif Abbasi owner of Grays Pharmaceutical Company into the investigation and recorded his statement; It reflected from his statement, recorded u/s 161 of Cr.PC that he got permission to establish Psychortropic Section in March 2009 and also got registered of De-Asm tablets (for medicine Asthma disease) with Ministry of Health Islamabad; In month June 2010, he applied for a quota of Ephedrine in a Ministry of Health, which was duly sanctioned from Ministry in month of July 2010; He further stated in his statement that company purchased 500 kgs Ephedrine from Alpha Chemical Lahore during the period from July 2010 to Dec 2010; He further stated that his company manufactured De Asm tablets with the mark of PK; He further stated that there are 03 distributors of Grays Pharmaceutical Company namely Hammas Pharma College Road Rawalpindi, AB Pharma College Road, Rawalpindi and Arfat Traders Karachi; He further disclosed in his statement recorded u/s 161 of Cr.PC that he got prepared the dyes and punches from Zero Tolerance dye maker Sialkot; Hanif Abbasi during the course of investigation on admitted that Mst. Razia Zahid Bakhtawary is his 50 person partner in Grays Pharmaceutical Company; He further stated that he look after the affairs of the factory himself whereas, she used to look after the interest of the company while sitting at home; On the same day, Hanif Abbas i accused produced a copy of special power of attorney of Zahid lqbal Bakhtawary executed on behalf of her wife Razia Zahid Bakhtawary (PW-19) which PW-35/l0 took into possession vide recovery memo Exh PF attested by the witnesses.
On 16-08-2012, Syed lmtiaz Hussain Shah, Sub Inspector (PW-35) joined Ghazanfar Ali Production Manager , Nasir Khan Quality Control Manager and Rana Mohsin Khurshid Marketing Manager in the investigation and again asked them to produce the record regarding the manufacturing, sale, distribution and transportation; They sought time for production of the record but failed.
Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) wrote a letter to Pakistan Railway for getting the record of agreement allegedly executed between Pakistan Railway and Etihad Cargo; Pakistan railway denied the existence of agreement between her and Etihad Cargo after 2009; On 10-08-2012, Syed lmtiaz Hussain Shah, Sub Inspector (PW-35) joined Javaid Farooq, Commercial and parcels services Pakistan Railway Rawalpindi (PW-15) and recorded his statement u/ s 161 of Cr .PC.
On 10-09-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) alongwith Naseer Ahmed ASI, Abdul Waqar ASI and other officials of ANF visited the Grays Pharmaceutical Company in connection with the investigation of the case and in search of the accused i:e employees of Grays Pharmaceutical Company; Rizwan Saddique employee of Grays Pharmaceutical Company met Syed Imtiaz Hussain shah Sub Inspector (PW-35) inside the factory; 10 asked where abouts of Rawalpindi the accused from the said Rizwan Saddique, who showed his ignorance.IO made further query to Rizwan Saddique regarding the presence of Jars De-Asm Tablets lying in the store; Rizwan Saddique brought before PW 35 two jars of De-ASM containing 1000 tablets in each jar having a Batches No.X-073 & X-098; Out of the above said two Jars 25/25 tablets having white colour with the mark-PK were separated and made into two sealed parcels for chemical analysis; The remaining two Jars were also made into one sealed parcel and taken into possession vide recovery memo Exh-PH attested by Naseer Ahmed ASI and Abdul Waqar constable. Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) recor ded the statements of PWs u/s 161 of Cr.PC. 10/PW -35 regarding hand ing over the above said 03 parcels said to contain De-ASM Tablets to Moharrar Malkhana for keeping the same in the safe custody and its onward transmission to the office of NIH Islamabad.
On the same day, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) joined Doctor Fakhar Ud Din Amir (PW-13), Doctor Abdul Rashid (given up) member licensing and quality control Islamabad, Sayyad Hussian, Deputy Drug controller Islamabad (PW-14), Naveed Anwar Provincial Inspector Drug (PW-07) and Shoaib Akhtar Provincial Inspector Drug (PW-08) into the investigation; Four certificates issued by the said officers were taken into possession vide recovery memo Exh-PE attested by the witnesses. Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) recorded the statements of PWs u/s 161 of Cr .PC.
On 14-09-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) joined Razia Zahid Bakhawary (PW-19) in the investigation and made inquiry regarding the special power of attorney; She stated that they have cancelled that special power of attorney; She produced before 10 the photocopy of cancellation certificate of special power of attorney which PW -35 annexed with the file.
On 18-09-2012, Syed lmtiaz Hussain Shah, Sub Inspector (PW-35) dispatched 02 sealed sample parcels in the office of NIH Islamabad through Jahan Kamal constable, intact. On the same day, 10 joined Naveed Ahmed Tunio Moharrar and Jahan Kamal constable and recorded their statements u/s 161 of Cr.PC.
On the same day, Rizwan Saleem owner of Zero Tolerance dye maker company Sialkot (PW-17) joined investigation and got recorded statement u/s 161 of Cr.PC; It appeared from his statement that he manufactured dyes having 6 millimeter dimension, 19 upper punches having a PK mark and 19 lower punches for Grays Pharmaceutical company on the order of Rana Mohsin Khurshid Marketing Manager, Grays Pharmaceutical Company and provided the same to the Grays Pharmaceutical company on 15 Sep, 2010.
On 18-09-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) filed an application before Learned Illaqa Magistrate for obtaining of Non bail able warrants of arrest against the accused Ghazanfar Ali, Nasir Khan, Rana Mohsin Khurshid Saraj Ahmed Abbasi, Zulfiqar Sheikhani and Asif Sheikhani but he refused.
On 08-10-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) visited Karachi in connection with the investigation of the instant case; he made his best effort to search and arrest Asif Sheikhani (PW-21) and Zulfiqar Sheikhani (PW -23) of Arfat Traders but of no avail.
On 15-10-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) received positive report from NIH Islamabad Exh-PR/1-2, which IO/PW -35 annexed with the police file; On 01-11-2012 Abid Zulfiqar Deputy Director (PW-33) produced before Syed lmtiaz Hussain Shah, Sub Inspector (PW-35) one letter issued by Lieutenant Colonel Ashar Rizwan Joint Director ANF Karachi alongwith the list of 17 shop keepers and their state ments, which PW-35/I0 took into possession vide recovery memo Exh-PBB attested by the witnesses Abbas Ali ASI and Mehboob Hussain Shah, constable (PW -3). 10 recorded the statements of PWs u/s 161 of C r . PC.
On 13-11-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) alongwith the Lieutenant Co!One! Toubeer Abbas Zaidi JD Rawalpindi and Abid Zulficiar Deputy Director ANF Rawalpin di (PW-33) visited Karachi in connection with the investigation of this case; They met Saleem Asharat Chief Drugs Inspector Karachi and asked for Co operation; He deputed Muhammad Adrees Sheikh, Divisional Drug Inspector (PW-22) and Muhammad Arif Mathani provincial Drug Inspector (PW-16) to assist them in the investigation; Muhammad Arif Mathani (PW 16) produced before 10, the certificate regarding the De-ASM tablets and its distributo r Arfat Traders which PW-35/I0 annexed with this file; On the same day, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) with his companion officers visited Mehran Clinic, situated in Sindhi Muslim Society Karachi; It was found closed since 03 years back; One security guard namely Nisar was present there, he was joined into the investigation and got recorded his statement.
On 14-11-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) alongwith his accompanying officers visited the office of Divisional Drug Inspector Karachi; Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) joined Muhammad Idrees Sheikh (PW-22) and Muhammad Arif Mathani PID (PW-16) into the investigation; he also joined into the investigation Syed Muzaf far Ali Jaffari PID (PW-18), who remained posted as area Drug Inspector during the year 2010-201 1, in the are not Denso Hall Medicines Market Marriot Road, Karachi; He handed over to I0/PW -35 a certificate dated 14-11-2012 which 10 took into possession vide recovery memo Exh-PCC attested by witnesses.
On the same day, Idrees Sheikh (PW-22), Arif Mathani (PW-16) and Syed Muzafar All Jafari (PW-18) issued a joint certificate which was also taken into possession vide recovery memo Exh-PDD; During the course of investigation Syed Imtiaz Hussain Shah, Sub Inspector (PW-35)/I0 also recorded statements of different shop keepers / PWs namely Muhammad Ashraf (PW-20), Shahab Ud Din (PW-24), Abdul Qadir (PW-25), Rehan Hassan (PW-26), Sajid Khan (PW-27), Farooq Murad (PW-28), Qayyum Ali (PW-29), Abdul Jabbar (PW-32) and Abdul Habib Daud (PW- 31). All these PWs denied the receipt of De-Asm Tablets.
On 15-11-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) alongwith Lieutenant Colonel Touqeer Abbas Zaidi Joint Director and Abid Zulfiqar Deputy Director ANF (PW-33) visited Hyderabad and recorded statements of different shop keepers / PWs, thereafter ANF officials/of ficers had retuned back to Islamabad. On 16-11-2012 at about 14:10 hours Syed Imtiaz Hussain Shah, Sub Inspector (PW-35)/10 was present in PS, where Jahan Kamal Naib Moharrar (PW-11) handed over to him a letter No. 2474/2012 dated 15-11-2012 of Sayyad Hussain Deputy Drug Controller (PW-14), which 10/PW -35 took into possession vide recovery memo Exh-PR, attested by witnesses; Syed Imtiaz Hussain Shah, Sub Inspector (PW -35) recorded statements of PWs u/s 161 of Cr .PC.
On 27-11-2012, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) obtained warrants of arrest of Ghazanfar Ali, Nasir Khan, Rana Mohsin Khurshid, Siraj Ahmed Abbasi, Asif Sheikhani and Zulfiqar Sheikhani; Thereafter , on 17- 12-2012 on account of ailment of Syed (Sardar lmtiaZ Hussain Shah, Sub Inspector (PW-35), investigation of this case was entrusted to Muhammad Zubair SI (PW-34); On 12-02-2013 investigation of this case was again handed over to Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) and remained with him from 27-03-2013 till 31-03-2013, Syed Imtiaz Hussain Shah, Sub Inspect or (PW-35) remained in Karachi in connection with investigation of this case; he summoned distributors of Grays Pharma Muhammad Basit Abbasi and Ahmed Bilal Aadil owners of AB Pharma and Hammas Pharma for investigation but they did not appear .
On 11-06-2013, Asif Sheikhani was arrested at Karachi Airport and after intimation Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) visited Karachi and obtained his transit remand. IO/PW -35 produced the accused before the Learned Illaqa Magistrate, Rawalpindi and obtained his physical remand till 19-06-2013. On 20-06-2013, 10 got send the accused in judicial lockup; On 19-06-2013 Zulfiqar Sheikhani joined investigation on ad-interim pre-arrept bail and got recorded his statement; On the same day, 10 produced accused before the Speqial Judicial Illaqa Magistrate, Rawalpindi, wherein his statement was recorded u/s 164 Cr.PC; On 24-06-2013, Asif Sheikhani was admitted on a post arrest bail; On 26-06-2 013, he voluntarily appeared before Learned Special Judicial Magistrate and got recorded his statement u/s 164 of Cr.PC; On 12-09-2013 Mst. Razia Zahid Bakhawary (PW-19) voluntarily appeared before the Learned Judicial Magistrate, Rawalpindi and got recorded her statement u/s 164 of Cr.PC; On 19-09-2013, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35)/I0 arrested Muha mmad Basit Abbasi and Ahmed Bilal Aadil, on rejection of their bail from the Hon'able Lahore High Court Lahore, Rawalpindi Bench and obtained the accused persons on physical remand; During the course of investigation Syed imtiaz Hussain Shah, Sub Inspector (PW-35)/IO interrogated about recording the invoices issued by the Grays Pharmaceutical Company in the name of AB Pharma Distributor College Road Rawalpindi and joined the shop keepers in the investigation to verify the invoices allegedly issued by the AB Pharma Distributor to them on 30-09-2010, 02-10-2010, 05-10 2010, 07-10-2010 and 09-10-2010; 10 verified the batch manufacturing record i:e Batch No.X-086 which was found fake and fabricated as the medicines were manufactured on 16-10-2010 according to Batch manufacturing record whereas, the sale was shown with effect from 30 09-2010 to 09-10-2010 which proved that all the record was fictitiously maneuvered.
On 25-09-2013, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) got send Ahmed Bilal Aadil and Basit Abbasi in the judicial lockup; On 14-10-2013, Syed Imtiaz Hussain Shah, Sub Inspector (PW 35) submitted the incomplete challan/report u/s 173 of Cr . PC against the accused persons.
During the commencement of trial, accused Hanif Abbai submitted an application before the court for verification of the stock lying in the factory allegedly returned from the distributors being expired; By the order of court, 10/PW -35 Syed Imtiaz Hussain Shah, Sub Inspector visited the store built in the factory and found 5100 Jars of De-ASM Tablets lying in the store; 10 compared the above said 5100 Jars with the Stock returned certificate dated 18-10- 2012 and found against the invoices issued by the Grays Pharmaceutical Company to Arfat Traders because Batch No. X-086 was never ever supplied to Arfat Traders Karachi; The tablets De-ASM were not manufactured by the Grays Pharmaceutical Company in accordance with the dossier submitted by Grays Pharmaceutical Company to Ministry of Health; After due completion of investigation, Syed ,Imtiaz Hussain Shah, Sub Inspector (PW-35) reached on a definite conclusion that the accused are involved in smuggling and misusing of Ephedrine and this way, they took the law in their hands; Syed lmtiaz Hussain Shah, Sub Inspector (PW-35) submitted challan /report u/s 173 of Cr . PC against the accused.
On 23-06-2017, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) took verification and attestation of photocopy of dossier issued by Health Ministry from Sayyad Hussain Deputy Drug Controller (PW-14) registration section DRA Islamabad and secured the same vide recovery memo Exh-PS/1-80 attested by the Ghulam Shabbir HC (PW-36) and Muhammad Waseem constable; Syed lmtiaz Hussain Shah, Sub Inspector (PW-35) recorded their statements u/s 161 of Cr.PC. On 30-06 2017, Syed Imtiaz Hussain Shah, Sub Inspector (PW-35) got submitted supplementary challan/ report u/s 173 of Cr. PC against' the accused persons.
3. The accused persons were summoned on the submission of report u/s 173 Cr.PC and copies of the documents as required under section 265-C of Cr. PC were delivered to the accused persons on 16-08 2013, on 09-01-2014 and on d2-09-2014. The charge was framed against the accused persons vide order dated 29-10-2014. All the accused persons present in the Court have denied the charge and claimed trial, therefore, prosecution was directed to produce evidence. The prosecution has produced the following evidence:-
4. PW-1 Arshad Mehmood, HC is duty officer, who, has chalked out formal FIR Exh-P A/1, upon receiving written complaint Exh PA duly sent by Syed Imtiaz HUssain Shah, Sub Inspector (PW -35).
5. PW-2 Muhammad Nadeein Anjum, UDC has delivered Letter No. 3(44) ANF/IR/LAW/k11 dated 20-07- 2012, signed by Colonel Syed Touqeer Abbas Zaidi, JD to Syed Mehboob Hussain Shah (PW-3) . on 21-07-2012.
6. PW-3 Syed Mehboob Hussain Shah, HC has stated about receiving a letter No. 3(44) ANF/IR/LAW/2011 dated 20-07-2012 Exh-PB, signed by Colonel Syed Touqeer Abbas Zaidi, JD from Nadeem Anjum, UDC (PW-2) on 21-07-2012 and further handed over the same to Syed Imtiaz Hussain Shah, Sub Inspector upon which Syed lmtiaz Hussain Shah, SI/SHO has inquired from Abid Zulfiqar, DD (10 of case FIR No. 40/11) about owners and administration of Grays Pharma and prepared Complaint. Syed Imtiaz Hussain Shah, SI took into possession above said letter in custody vide recovery memo Exh-PC attested by him and Saif Ullah, Constable.
He has also stated that Deputy Director Abid Zulfiqar Law Branch Regional Directorate produced before 10, the inquiry report alongwith the complete file of United Plastic Jars Supplier AB Pharma Distributor, invoices AB Pharma, marketing file alongwith statement of Hammas Pharma Distributor, invoices file of Hammas Pharma, marketing file of Arfat Traders alongwith invoices issued by Grays, statements of employees of Grays Pharma and agreement file between Etihad cargo contractor and Pakistan Railway, 24 Jars having De-ASM tablets which Syed Imtiaz Hussain Shah, SI took into possession vide recovery memo attested by him and Abbas Ali, ASI.
He has further stated about taking- into possession of four certificates issued with signatures of Dr. Abdul Rasheed, Dr. Fakhar Ud Din Aamir, Siyad Hussain Khan, Shoaib and Naveed Anwar, Professional Inspector of Drugs and two pages of power of attorney of Razia Zahid Bhakhtawari in favour of zahid Iqbal Zahid Iqbal Bakhtawar attested by Muhammad Haneef Abbasi accused, owner, CEO Grays Pharma and a letter No.2(22)ANF/Erq/2012 dated 31-10-2012 singed by Lieutenant colonel Ashar Rizwan with record about list of shopkeepers and statements, shopkeepers Karachi, Haiderabad, Sukkar and photocopy of letter of Muhammad Arif Mathani, PID Karachi consisting of 67 pages vide recovery memos Exh-PE, Exh-PF and Exh-PG attested by him and other recovery witnesses.
7. PW-4 Naseer Ahmed ASI has stated that he alongwith Syed Imtiaz Hussain Shah, SI and Abdul Waqar, Constable met with Rizwan Saddique who has handed over to Syed Amtiaz Hussain Shah, SI, two jars of De- ASM containing 1000 tablets in each jar having Batches No.X-073 & X-098. Out of the above said two Jars 25/25 tablets were separated and were made into two sealed sample parcels for chemical analysis. The remaining two Jars were also made into one sealed parcel and 10/PW-35 took into possession vide recovery memo Exh-PH attested by him and Abdul Waqar constable.
8. PW-5 Shakeel Ahmed, Inspector has stated that on 23-07- 2012, he alongwith Doctor Fakhar Ud Din Amir Federal Inspector of drug and Syed Imtiaz Hussain Shah, Sub Inspector visited the Grays Pharmaceutical industrial Zone block. Syed Imtiaz Hussain joined Ghazanfar Ali Production Manager of Grays Pharma in the investigation who produce before 10/PW-35, 19 Dyes, 19 Upper Punches with the PK mark, 19 lower punches of ZP-19 rotary machine, (which were used for manufacturing of De-ASM tablets) which Syed Imtiaz Hussain Shah took into possession vide recovery memo Exh-PJ attested by him and witnesses.
He has further stated that on the same day, on their return back to the office of Regional Directorate ANF Rawalpindi, Doctor Fakhar ud Din Amir after analyzing the above said recovered dyes and punches gave opinion and issued a certificate which 10/PVV-35 took into possession vide recovery memo Exh-PK attested by him and Fakhar Ud . Din Aamir .
9. PW-6 Ahsan Ayub Constable has stated that on 09-08- 2012, Production Manager Grays Pharma came in Police Station and produced carbon copies of 19 files of complete record of batches of manufacturing of tablets De-ASM alongwith the original inspection book of Grays Pharma Company consisting of 100 pages. Syed lmtiaz Hussain Shah, SI obtained the signature of Ghazanfar All Production Manager and Nasir Khan Quality Control Manager of Grays Pharmaceutical on page numbers 63 of inspection book and took into possession vide recovery memo Exh-PL attested by him and Naheed Ahmed, Constable.
10. PW-7 Naveed Anwar, Drugs Controller EDO Health Rawalpindi has stated that on 10-09-2012, The ANF authorities has called him in their office situated at Ghori Town and inquired from him about De-Asm Tablets. On this, he told ANF authorities, that he has not seen De-Asm tablets in the area of his jurisdiction in the year 2010, 2011 and prepared a written report Exh-PM.
He has also stated about signing of Exh-PN prepared by some officers of Ministry of Federal Health and Exh- PP as Provincial Inspector.
11. PW-8 Muhammad Shoaib Akhtar , Drugs Controller , BBH Rawalpindi has stated that on 10-09-2012, ANF authorities called him in their office and inquired from him about the presence of De-Asm tablet manufactured by Grays Pharma, Islamabad in the market area of his jurisdiction in the years 2010, 2011 and about sampling of said tablets. He has submitted his report Exh-PQ, that he has not seen De-Asm tablets in his area of jurisdiction during his appointment in the year 2010, 2011.
12. PW-9 Naveed Ahmed Tunio, SI was performing his duty as Moharrar Malkhana on 23-07-2012 and on 10-09- 2012 and he has stated about receiving of one sealed parcel, Dyes and Punches sealed with seal/stamp of SIH on 23-07-2012 and three sealed parcels of Grays Pharma De-Asm tables with the seal/stamp of SIH on 10-09-2012 and has also handed over two sealed sample parcels of De-Asm tablets to Jehan Kamal, Constable on 18-09-2012 for onward transmission to the of fice of NIH, Islamabad, intact position.
He further stated about receiving of articles of personal search of accused Muhammad Asif Sheikhani given to him by Syed Imtiaz Hussain, SI on 12-06-2013. He made entry in register No.19 and kept all the articles in safe custody in Malkhana.
13. PW-10 Abdul Waqar Constable has stated he alongwith Syed Imtiaz Hussain Shah, SI and Naseer Ahmed SI went to Grays Pharmaceutical Company , Industrial Area Rawat and met with Rizwan Saddique who handed over to Syed Amtiaz Hussain Shah, SI, two jars of De-ASM containing 1000 tablets in each jar having Batches No.X-073 & X-098. Out of the above said two Jars 25/25 tablets were separated and were made into two sealed Sample parcels for chemical analysis. The remaining two Jars were also Made into one sealed parcel and IO/PW -35 took into possession vide recovery memo Exh-PH attested by him and Naseer Ahmed, SI.
14. PW-11 Jehan Kamal, Constable has stated about receiving of two sealed sample parcels from Naveed Ahmed Tunio, ASI/Moharrar Malkhana and then delivery of the said parcels in the office of NIH Islamabad, in intact position.
He has further stated that on 15-11-2012, Qaiser Mehmood Naib Qasid of office of Naeed Ud Din, AD Law, RD ANF Rawalpindi for investigation of Grays Pharmaceutical handed over to him one letter - signed by Siyyad Hussain Khan, Deputy Drugs Controller . He handed over above said letter to Syed Imtiaz Hussain Shah, which he took into possession vide recovery memo Exh-PR attested by him and Usman, Constable.
On 27-12-2012, in his presence two files through superior officers, RD ANF North Rawalpindi, regarding monthly reports of Provincial Inspector Drugs Karachi Muhammad Arif Mathani, consisting of 205 pages and Syed Muzafar Ali Jaffri, Provincial Inspector Drug Karachi, consisting of 156 pages were received, which Muhammad Zubair, Inspector took into possession vide recovery memo Exh-PS attested by him and Muhammad Usman Aslam, Constable.
15. PW-12 Naheed Ahmed, Constable has stated that in his presence on 09-08-2012, Ghazanfar Ali Production Manager and Nasir Khan Quality Cont'iol Manager of Grays Pharmaceutical were summoned for investigation and they have produced record of batches of manufacturing of tablets De-ASM consisting of 19 files of different batches alongwith the original inspection book before Syed lmtiaz Hussain Shah which he took into possession vide recovery memo Exh-PL attested by him and Ahsan Ayub Constable.
He has further stated that in his presence Doctor Fakhar Ud Din Amir, Manager licenses & Quality Controller, Doctor Abdul Rashid, PID, Sayyad Hussian, Deputy Drug Controller Registration Authority, Naveed Anwar, Provincial Inspector Drug, Rawalpindi Pothohar Town and Shoaib Akhtar, Provincial Inspector drug, Pothohar Town Rawalpindi Cantonment summoned in case FIR No. 41/12 have issued 04 certificates. Two written certificates regarding De-Asm Tablets handed over by Naveed Anwar and Shoaib Akhtar, PIDs Rawal Town Oantonment Rawalpindi to Syed Imtiaz Hussain Shah, which he took into possession vide recovery memo Exh-PE.
On the same day, in his presence Doctor Fakhar Ud Din produced size of De-Asm Tablets, Type, Diameter, Technique of Grays Pharma comparison with Batch Manufacturing and his opinion handed over to Syed Imtiaz Hussain Shah in the shape of certificate.
He has further stated that on 18-10-2012, in his presence Deputy Director Abid Zulfiqar handed over to Syed Imtiaz Hussain Shah, record of RD ANF Karachi consisting of mail of Arfat Traders Karachi, Ministry of Health Karachi, photocopies 32 in numbers and directed him to file the same in police file, which Syed Imtiaz Hussain Shah took into possession vide recovery memo Exh-PT.
On 2812-2012 and 21-01-2013, in his presence Deputy Director Abid Zulfiqar to Zubaii- SI handed over one letter consisting of 84 pages and one letter consisting of 82 pages which Zubair SI took into possession vide recovery memos Exh-PU attested by him and other PWs.
16. PW-13 Dr. Muhammad Fakhairuddin Aamir son of Hafiz Ghulam Naseerudin Shibli has stated that in July 2007, he was posted as Federal Inspector of Drugs. On 23 July 2012, Sub Inspector Shakeel Ahmed and Imtiaz Hussain Shah, Sub Inspector (PW-35) of ANF PS RD Rawalpindi went to Grays Pharma Islamabad for inspection of dye punches. Which were used for manufacturing of tablets and ZP-19 compression machine was there. He returned back along with above Sub Inspectors of ANF to PS ANF and prepared his report in this respect which is Exh-PW. He produced the same before I.O, who took the same into possession vide recovery memo Exh-PK. He along with SI Shakeel Ahmed attested said memo. On the same day in the evening I.O took into possession 19 dyes P-1/1-19 and 19 punches P-2/1-19 into possession vide recovery memo Exh-PJ.
He has further stated that on 10-09-2012, he along with Dr. Abdul Rasheed, Sayy ad Hussain and Naveed Anwar issued a certificate Exh-PP to 1.0, who took the same into possession vide recovery memo Exh-PE. He along with above referred Dr. Abdul Rasheed, Sayyad Hussain and Naveed Anwar signed said certificate Exh-PP . On the same day another certificate was issued by him. He issued certificate Exh-PN. 1.0 took the same into possession vide the same recovery memo Exh-PE.
17. PW-14 Sayyad Hussain Khan son of Muhammad Irtaza Khan has stated that on 10 Oct 2012, he alongwith Dr. Abdul Rasheed, Dr Fakhuruddin Aamir and Naveed Anwar, Punjab Inspector of Drugs Pothohar Town went to Regional Directorate ANF near Ghouri Town in connection with investigation and they issued certificate about comparison of wastage in manufacturing of drugs Exh-PP. He along with Dr. Abdul Rasheed, Dr Fakhuruddin Aamir and Naveed Anwar signed said certificate vide Exh-PP/1.
On 08 Nov 2012, he issued letter No.247 4 in response to letter No.3(44)law/ANF/IR/ 2011 dated 01 Nov 2012 of Lieutenant Colonel Syed Toqeer Abbas Zaidi.
He has further stated that on 16 Nov 2012, he went to Regional Directorate ANF near Ghouri Town in connection with investigation of Grays Pharmaceutical and in response to letter No.3(44)Iaw/ANF/lR/ 2011 dated 14 Nov 2012 of Assistant Director Naeem Uddin and handed over to Naeem Uddin his reply of letter bearing No.2474 signed by him which was taken into possession vide recovery memo Exh-PR, he signed the same.
18. PW-15 Javed Farooq, Commercial Superintendent, Parcels Services Pakistan Railway Rawalpindi has stated about receiving of two letters from Superior Officer on 10-08-2012 and then delivery of the said letters in Police Station ANF Rawalpindi.
19. PW-16 Muhammad Arif Mithani, Retired Drug Inspector has stated that in the year 2012, he was posted as Drug Inspector of Kachi Gali, Karachi and surrounding area medicine market. Divisional Drug Inspector directed him to inquire into the matter of De-Asm Tablets of Arfat Traders and find out facts and figures. He visited Arfat Traders and found Mr. Zulfiqar Sheikhani was In.- charge of sales of Arfat Traders. He inquired from him about De-Asm tablets, who reported to him that they purchased 11000 Jars which contains 1000 tablets in each jar from Gray's Pharma and they have sold 6000 Jars in the market. He reported about this fact to his senior. Then after couple of days, he received another instruction that remaining 4000 jars need to be tested by Drug Testing Laboratory Sindh. He again visited Arfat Traders and collected 04 samples of each batch from total of 14 batches and sent 01 sample of each batch according to rules to Drug Tegting Laboratory, other sample of the batch to Quality Control Board Sindh, 01 sample to the manufacturer i.e Grays Pharma and 01 sample to Arfdt Traders from where he collected samples. After some time he received rbports from laboratory and submitted to his office and 01 copy to Arfat Trader and 01 copy to Provincial Quality Control and sent 01 copy to RD ANF Karachi. Then he inquired from Arafat Traders about selling receipts and purchase receipts but they remained unable to produce receipts before him. Arfat Traders provided him a list which they have already submitted to RD ANF Karachi. One Asmat-ullah of RD ANF Karachi asked him to verify list of customers from Arfat Traders which was provided to RD ANF Karachi, he visited addresses of some of the customers mentioned in said list but none has verified about purchase of De-Asm Tablets from Arfat Traders. He asked Arfat Traders to provide him purchase invoices but they could not provide at that time and after couple of days they provided him invoices which were without warranty by the manufacturer. He raised objection on this, that these were without warranty. Then after one week they provided him invoices with warranty. Then, he reported the matter to high-ups. He wrote letters to Grays Pharma, two of his letters returned back un-delivered. Then after some time he received a letter from Grays Pharma, that they have shifted their factory from one address to another. Due to which reasons letter written by him returned un- delivered. He inquired from grays Pharma about manufacture of De-Asm tabs and sales to Arfat Trades.
Then he received a letter from Grays Pharma that Arfat Traders was their authorized agent. It is provided in Section 21 of drug act "if one says that he is authorized agent, then no warranty is required under the rules".
Reports of samples were received to him which he submitted, 01 report to Quality Control &Yard, 01 to RD ANF Karachi, 01 report to Arfat Trader and 01 is with him. After that finally he went again to Araft Trader for checking of the products, when they disclosed that they have already sent back said products to Grays Pharma.
20. PW-17 Rizwan Saleem, Dyes Manu facturer , has stated that on 08-09-2012 ANF Rawalpindi called him.
They inquired form him while showing dyes to him, whether, he has manufactured the same, he verified that he , has manufactured these dyes. He was a dyes manufacturer of medicine from last 20 years and providing the same to Pharmaceutical Companies. He was also providing dyes to Grays Pharmaceutical Company. Dyes containing mark of PK size 6 mm was manufactured by him on instruction of Mohsin 'Khursheed of Grays
21. PW-18 Syed Ghazafar Ali Jaffery, Provincial Drug Inspector, has stated that on 14-11-2012, he was posted as Provincial Drug Inspector Karachi-IV (Korangi). 1.0 of the case lmtiaz Shah came in the office of Divisional Drug Inspector Karachi Division. He met him there and inquired from him that in the year 2010-2011, where, he was posted. He replied that during that period he was posted in Karachi-II, (Denso Katchhi Gali). He further inquired from him about Grays Pharma and De Asm tablets about availability and sale purchase of said Tablets, he replied that there was no such issue and complaint at that time.
22. PW-19 Razia Zahid wife of Zahid, has stated that her agreement on 50% partnership was arrived at in March 2005 with Muhammad Hanif Abbasi of Grays Pharmaceutical; Initially they were paying them Rs 50,000/- p.m. and subsequently they started paying Rupees. 1,00,000/- p.m. then it increased to 1,50,000/-p.m; After May 2011, they stopped payment; Their account was joint one; After the year 2007, she finished going to Pharmaceutical Factory and during that period and thereafter cheques were received to her and after signing the same, she used to give cheques back to them and she was having no knowledge about ephedrine; Neither, they kept any medicine regarding Ephedrine at their shop D-Watson for sale; She appeared before Magistrate at Islamabad on 12-09-2013 and got recorddd her statement to above fact.
23. PW-20 Muhaminad Ashraf, General Manager Royal Group, Export Firms Karachi, has stated that he was working as General Manager Royal Group Karachi. Their company was dealing with the export, of Pharmaceutical and General Merchandise. Their company used to deal in medicines with Arfat traders, Denso Hall Katchi Gali No 2; Neither they have purchased De-Asrn tablets manufactured from Ephedrine from Arfat Traders in the years 2010, 2011 and 2012, nor said medicine was produced in market through them.
24. PW-21 Muhammad Asif Sheikhani, Business (Partner in Safe Pharma) has stated that he was partner in Safe Pharma, his brother Muhammad Zulfiqar Sheikhani runs business in the name and style of Arfat Traders in Karachi; License of Arfat Traders was also in the name of Muhammad Zulfiqar Sheikhani; His above said brother used to sit in the shop/business place; Arfat Traders was also a distributer of Safe Pharma; Neither he purchased nor he sold De-Asm tablets of company of Muhammad Haneef Abbasi; He has no concern with affairs of Arfat Traders; In the year 2012, he was looking after business affairs of Arfat Traders due to ailment /sickness of his brother Zulfiqar Sheikhani and also signed on some papers; During inquiry and investigation by ANF, he sought some time from them, actually he was having no concern with the business affairs of Arfat Traders; His statement u/s 164 of Cr.PC was also recorded to this extent.
25. PW-22 Muhammad Idrees Sheikh, Retired Regional Drug Inspector, Karachi has stated, that this matter pertain to year 2012, at that time he was working as Divisional Drug Inspector Karachi. On 22 June 2012, Chief Drug Inspector asked him that a letter of Lieutenant Colonel Ashar Rizwan of ANF Karachi was received; they need information and comments about some drugs i.e. drug which contain Ephedrine. He shared this information with his subordinate District Drug Inspector Muhammad Arif Mithani. He submitted required information and comments to Chief Drug Inspector and endorsed copy to ANF Karachi. On 13th July 2012, one letter of ANF containing clear cut direction received 454 packets of De-Asm Tablets were lying with Arfat Traders Karachi, there samples be taken for test and analysis and copy of test report be sent to ANF Karachi; While performing his administrative roll, he directed Area Drug Inspect Arif Mithani to comply with the direction as reqUired by ANF Karachi; On 18July 2012 Arif Mithani, Area Drug Inspector took and sealed the samples of De- Asm Tablets of 14 different batches and sent to DTL (Drug Testing Laboratory Sindh) at Karachi; On 18July 2012, he intimated to ANF Karachi with photocopy of from-II about the compliance of instructions and directed District Drug Inspector Arif Mithani, that as soon as he receives test reports in respect of said drugs, may be intimated to ANF Karachi. About on 14 November 2012 Imtiaz Hussain Shah Inspector of ANF came in his office and recorded his statement in this context; He also inquired from him that whether he was having any other information regarding any other drug except De-Asm tablets. He replied that he was no such information.
26. PW-23 Muhammad Zulficiar Sheikhani son of Ghulam Muhammad Sheikhani has stated, that he was dealing with the business of medicines from last 23 year with the name and style of Arfat Traders at Karachi; He was having 06 employees at his shop; Products of different Pharmaceutical Companies as well as of Grays Pharma were received at his shop; In May 2012, marketing representative of Grays Pharma came to Karachi; He gave them 160 jars of De-Asm Tablets of 30 mgs and asked to place these jars on their shop Arfat Traders and when someone came for verification/investigation of Ephedrine, then while showing these jars to them got them satisfied and if 'anyone demanded any sample, same be provided to him frond these jars; During the months of June-July 2012, Afif Mithani Drug Area Inspector as per routine checkup came on their shop and inquired about De-Asm Tablets; On demand of samples of De-Asm by him, out of 100 jarsnd th th th placed by Grays Pharma at their shop,- he obtained 56 jars for sampling; On inquiry of remaining stock of jars Muhammad Arif Mithani was shown De-Asm Tablets of Safe Pharma which were placed in cartons as 4400 jars and he was satisfied and he became assured that these jars were of Grays Pharma, whereas, in fact De-Asm tablets of Grays Pharma never came on their shop, nor were sold to anyone, neither any record of said tablets was available; Muhammad Haneef Abbasi on behalf of Grays Pharma placed invoices of Grays Pharma regarding sale on their shop; When ANF inquired about Grays Pharma, then warranty was not available on invoices; On this, Muhammad Haneef Abbasi provided invoices containing Warranty, wherein dealing of 11586 jars were shown and no price of same was paid.
27. PW -24 Shahab Ud Din son of Zia Ud Din has stated, that he was running business of medicine in the name of Najam Brothers at Karachi Investigating Officer namely lmtiaz Shah came at his shop and inquired from him about sale of any medicine to him of Arfat Traders made of Ephedrine. He replied that neither he has purchased any medicine of made of Ephedrine nor he sold the same.
28. PW-25 Abdul Qadir son of Abdul Hakeem has stated, that he was dealing with the business of medicines from last 20/22 years with the name and style of AQ-T raders. He has not purch ased medicines De Asm Tablets from Arfat Traders, in the year 2010, 201 1 and 2012.
29. PW-26 Rehan Hasan son of Sharf-Ul-Hasan has stated, that he was running shop of medicines in Zenat Market from last 08/10 years. He was never dealt with sale / purchase of De-Asm Tablets with Arfat Traders, in the year 2010 and 201 1, nor he was dealt with Zulfiqar Sheikhani and Asif Sheikhani.
PW-27 Sajid Khan son of Abdul Sattar has stated, that on 15-11-2012, lmtiaz Hussain Shah came to his shop and talked with him About De-Asm Tablets and asked that he was selling the same or has purchased the same upon which he replied that he never seen nor sold above tablets; He also inquire d about his business with Arfat Traders, he replied that he remained dealing with Arfat Trader but in the years 2010, 2011 and 2012, he never purchased De-Asm Tablets of Ephedrine from them.
31. PW-28 Farooq Murad son of Abdul Karim Murad has stated that on 12 November 2012, Investigating Officer of this case namely Syed lmtiaz Hussain Shah came to him for inquiry; He inquired from him about sale of De-Asm tablets; He replied that he was neither heard about nor sold this product; He showed him his register in this respect also; He has stated that on enquiry of Investigating Officer, he replied to Investig ating Officer while showing his ignorance regarding Arfat Traders.
32. PW-29 Qayyunri All son of Muhammad Shoukat has stated, that he was not known about Ephedrine. There was Arfat Trader situated at Denso Hall Karachi; He was having no concern with above said Arfat Traders; He never seen owner of Arfat Traders, nor was having any concern with him; On 14 November 2012 at 02:30 PM, 10 of the case Syed lmtiaz Hussain Shah carhe to him and got recorded his statement to the effect that he never dealt vtiith De-Asm tablets made of Ephedrine as a component, he never purchased or sold the same on his medical store.
33. PW-30 Ahmed Hassan Ranjha, Special Judicial Magistrate, he has stated About recording of statements u/s 164 of Muhammad Zulfiqar Sheikhani PW-23, Muhammad Asif Sheikhani PW-21 and Mst. Razia Zahid Bakhtawari PW-19
34. PW-31 Abdul Jabbar son of Abdul Rehman has stated that he was running a medical store opposite to Civil Hospital Hyderabad in the name and style of Pakistan Corporation Medical Store. He was a retail seller. He used to purchase medicine from different whole sellers and sell the same in wards. He was running this business since 1976. As for as case of Ephedrine Tablets against him was concerned, he never had any contact with Arfat Traders, never dealt with any medicine prepared by Ephedrine, He rebut this fact. He never remained in contact with Arfat Traders and was not known them.
35. PW-32 Abdul Habib Daud son of Muhammad Daud has stated that he was running the business of medicines in the name and style of Bilal Traders at Jilani Plaza Adwani Lane, Hyderabad. He was running this business from last 32 years. With regard to business affairs of medicines, he knows Asif Sheikhani and Zulfiqar Sheikhani owners of lrfat Traders Karachi. In the years 2010, 2011 and 2012, he did not purchase De-Asm Tablets (Medicines) from said Irfat Traders, nor sold out the same at his shop.
36. PW-33 Abid Zulficiar , Joint Director ANF he is the enquiry officer. He has stated the details of enquiry conducted by him. He has also stated the recovery memos prepared as well as attested by him.
37. PW-34 Muhammad Zubair Inspector has stated that 17- 12-2012, investigation of case FIR No. 41/2012 titled "the State Vs Muhammad Haneef Abbasi etc" of Grays Pharmaceutical Company was transferred to him, due to illness of Syed Imtiaz Hussain Shah, Sub Inspector and he has conducted the partial investigation of this case. He has stated the details of investigation conducted by him.
38. PW-35 Syed Imtiaz Hussain Shah, Inspector is the complainant and the Investigating Officer of the case. He has narrated the prosecution story as mentioned in complaint Exh-P A. He has also stated regarding recovery memos and about investigation conducted by him as stated above.
39. PW-36 Ghulam Shabbir, HC has stated that on 23-06-2017, he alongwith Muhammad Waseem constable joined the investigation of this case. The 10 / Imtiaz Hussain Shah, Inspector took into possession one letter regarding the provisional of registration of dossier consisting upon 80 pages and verification certificate issued by Sayyad Hussain in his presence and presence of Muhammad Waseem Constable by virtue of recovery memo Exh-PSS attested by him and Muhammad Waseem constable.
40. Learned SPP Zahid Mehmood and Ehtisham UI Haq vide their separate statements dated 13-05-2016, 24-02-2017, 14-04- 2017 and 30-10-2017 while giving up PWs namely Dr. Abdul Rasheed, Lieutenant Colonel Syed Touqeer abbas Zaidi, Nisar Ahmed, Security Guard Mehran Clinic Sindhi Muslim Society Karachi and Muhammad Waseem Constable being un- necessary and has closed prosecution case.
41. After closure of the prosecution evidence, the accused persons were examined u/s 342 of Cr.P.C, who have refuted the prosecution evidence and have taken the following stances in reply of question "why this case is against you and why the PWs have deposed against you, Muhammad Hank Abbasi accused stated as under:- "/ am a well-reputed & seasoned politician of Rawalpindi Division and have twice been elected as Member National Assembly. In 2003's Bi-Election of NA-56, I was elected as Member National Assembly by defeating candidate of the ruling party of that regime i.e. real nephew of Sheikh Rashid Ahmed, the then Federal Minister.
Thereafter, in General Elections of 2008, I was also returned as Member National Assembly after defeating Sheikh Rashid Ahmed candidate of PML(Q). My political rivals never reconciled with these defeats & bent backwards and by using their political influence with the connivance of ANF, they designed a plan to drag me in some false cases to damage my reputation & political career, thereafter they hired the services of ANF as a tool and managed to get registered the instant false case against me, employees of Gray's Pharmaceutical & its authorized distributors. Besides that it is also clear from record that ANF has absolutely no jurisdiction to take cognizance in a matter which does not fall within the ambit of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 and this fact is further proved on record that the Ministry of Narcotics Control issued SRO 282(1)12012 dated 21.03.2012 and further clarified the position by issuing Notifications/Letters No.F.No.11-4/95-Policy-I dated 28 March, 2012 & No. MNC U. 0 No. 9-9/10-Policy-I dated 3 April, 2012 Ex-DN, Ex-DO & Ex-DP respectively. This was the reason that earlier this Honourable Court in two other cases of similar nature i.e. case FIR No.45/2012 & No.53/2012, acquitted the accused persons on 15.05.2014 while exercising power u/s 265-K Cr.P.C. Attested copies of the applications & judgments dated 15.05.2014 are produced as Exb. DJ & DK. In addition to that, it is also proved on record that allocation of quota of Ephedrine to Gray's Pharmaceutical was duly utilized ands the company in different batches manufactured 1 cror, 65 lac, 86 thousand De-Asm tablets having 30mg Ephedrine HCI each tablet (total 16586 jars containing 1000 tablets each) and supplied the same to its three Authorized Distributors, detail of which was also proved as: Above 11000 jars to Arafat Traders Karachi, whereas 3000 jars to Hammas Pharma Rawalpindi and 2000 jars to AB Pharma Rawalpindi The authorized dealers further sold medicine With the, following Breakup: Above 6000 jars were sold by Arafat Traders, whereas 4876jars were returned to company 2882 jars were sold by Hammas Pharma, whereas 118 jars were returned to company 1909 jars were sold by AB Pharma, whereas 91 jars were returned to companyth rd It is also established on record that the competent authority i.e. Ministry of Health qua matters related to controlled chemicals is neither complainant of the instant case nor any official of Ministry is witness or accused in the case.
In fact the instant case is a textbook example of colorable exercise of jurisdiction on the part of ANF with connivance of my political rivals. I am innocent and have been dragged in a false & frivolous case purely on political considerations"
Whereas in reply of the same question, Basit Abbasi accused stated as under:- "During the course of investigation of the case I appeared so many times before the ANF officials prior to registration of the FIR. I daily joined the investigation along with all my original documents / records. ANF always pressurized me to give statement against Muhammad Hanif Abbasi with the assurance that in case I give statement as per their desire, they will not drag me in to the instant case. But being a law abiding citizen I refused to record any false statement against an innocent person. So in consequences ANF malafidely involved me in the instant false case. I also brought these facts within the notice of higher courts at relevant time. I have been dragged in this case, being an authorized distributor of Grays Pharmaceuticals just to harass and politically victimize Muhammad Hanif Abbasi my co-accused."
In reply of the same question, Rana Mohsin Khurshid accused stated as under:- "During the course of investigation of the case I appeared so many times before the ANF officials prior to registration of the FIR. I daily joined the investigation from 2.00 pm afternoon to 2.00 am in the midnight along with all my original documents / records. ANF always pressurized me to give statement against Muhammad Hanif Abbasi with the assurance that in case I give statement as per their desire they will not drag me in to the instant case. But being a law abiding citizen I refused to record any false statement against an innocent person. So in consequences ANF malafidely involved me in the instant false case. I also brought these facts within the notice of higher courts at relevant time. I have been dragged in this case, being an employee of Grays Pharmaceuticals just to harass and politically victimize Muhammad Hanif Abbasi my co-accuse."
In reply of the same question, Nazakat Khan accused stated as under:- "During the course of investigation of the case I appeared so many times before the ANF officials prior to registration of the FIR. I daily joined the investigation from 2.00 pm afternoon to 2.00 am in the midnight along with all my original documents / records. ANF always pressurized me to give statement against Muhammad Hanif Abbasi with the assurance that in case I give statement as per their desire, they will not drag me in to the instant case. But being a law abiding citizen I refused to record any false statement against an innocent person. So in consequences ANF malafidely involved me in the instant false case. I also brought these facts within the notice of higher courts at relevant time. I have been dragged in this case, being an employe e of Grays Pharmaceuticals just to harass and politically victimize Muhammad Hanif Abbasi my co-accused."
In reply of the same question, Ahmed Bilal Adil accused stated as under:- "During the course of investigation of the case I appeared so many times before the ANF officials prior to registration of the FIR. I daily joined the investigation along with all my original documents / records. ANF always pressurized me to give statement against Muhammad Hanif Abbasi with the assurance that in case I give statement as per their desire, they will not drag me in to the instant case. But being a law abiding citizen I refused to record any false statement against an innocent person. So in consequences ANF ma malafidely involved me in the instant false' case. I also brought these facts within the notice of higher courts at relevant time. I have been dragged in this case, being an authorized distributor of Grays Pharmaceuticals just to harass and politically victimize Muhammad Hanif Abbasi my co-accused."
In reply of the same question, Siraj Ahmed Abbasi accused stated as under:- "During the course of investigation of the case I appeared so many times before the ANF officials prior to registration of the FIR. I' daily joined the investigation from 2.00 pm afternoon to 2.00 am in the midnight along with all my original documents / records. ANF always pressurized me to give statement against Muhammad Hanif Abbasi with the assurance that in case I give statement as per their desire, they will not drag me in to the instant case. But being a law abiding citizen I refused to record any false statement against an innocent person. So in consequences ANF malafidely involved me in the instant false case. I also brought these facts within the notice of higher courts at relevant time. I have been dragged in this case, being an employee of Grays Pharmaceuticals just to harass and politically victimize Muhammad Hanif Abbasi my co-accused."
In reply of the same question, Ghazanfar All accused stated as under:- "During the course of investigation of the case I appeared so many times before the ANF officials prior to registration of the FIR. I daily joined the investigation from 2.00 pm afternoon to 2.00 am in the midnight along with all my original documents / records. ANF always pressurized me to give statement against Muhammad Hanif Abbasi with the assurance that in case I give statement as per their desire, they will not drat me in to the instant case. But being a law abiding citizen I refused to record, any false statement against an innocent person. So in consequences ANF malafidely involved me in the instant false casa. I also brought these facts within the notice of higher courts at relevant time. I have been dragged in this case, being an employee of Grays Pharmaceuticals just to harass and politically victimize Muhammad Hanif Abbasi my co-accused. "
In reply of the same question, Nasir Khan accused stated as "During the course of investigation of the case I appeared so many times before the ANF officials prior to registration of the FIR. I daily joined the investigation from 2.00 pm afternoon to 2.00 am in the midnight along with all my original documents / records. ANF always pressurized me to give statement against Muhammad Hanif Abbasi with the assurance that in case I give statement as per their desire, they will not drag me in to the instant case. But being a law abiding citizen I refused to record any false statement against an innocent person. So in consequences ANF malafidely involved me in the instant false case. I also brought these facts within the notice of higher courts at relevant time. I have been dragged in this case, being an employee of Grays Pharmaceuticals just to harass and politically victimize Muhammad Hanif Abbasi my co- accused. "
42. All the eight accused namely Muhammad Hanif Abbasi, Basit Abbasi, Ahmed Bilal Adil, Ghazanfar Ali, Muhammad Nasir Khan, Rana Mohsin Khurshid, Siraj Ahmed Abbasi and Nazakat did not opt to make their statements on oath u/s 340 (2) Cr.P.C while stating that prosecution completely failed to prove any case against them, especially under CONTROL OF NARCOTIC SUBSTANCES ACT, 1997. However, except accused Muhammad Hanif Abbasi all the accused have opted to produce defence evidence in the shape of documentary evidence as certain documents which were though available on judicial or police file have been intentionally & malafidely withheld by the prosecution, therefore, were tendered during statement u/s 342 Cr.
PC for just decision of the case. Accused Muhammad Hanif Abbasi did not opt to produce defence evidence while stating that most of the documents relevant for just decision of the case already came on the file during evidence, however, certain documents which were though available on judicial or police file but have been intentionally & malafidely withheld by the prosecution were tendered for just decision of the case.
43. It has been contended by the Learned SPP and Deputy Director Law, that Grays Pharmaceutical Company proprietor of which is Muhammad Hanif Abbasi accused present in court has obtained the quota of 500 kgs Ephedrine and then has purchased the same from Alpha Chemical Lahore but has not utilized the same for manufacturing of De-Asm 30 mgs Tablets and has misused the same, therefore he has committed the offence u/s 9 (c) of CNSA 1997, as from the Ephedrine narcotics drug namely "Methamphetamine" is prepared. They have further argued that the prosecution has proved the case beyond any reasonable doubt, against the accused persons present in court, therefore, they be convicted and sentenced in accordance with law.
44. Conversely , learned defence counsel has contended that the Ephedrine does not fall in the definition of Controlled Substance, Narcotics Drug as well as in the definition of Psychotropic Substance and the same is also not included in the schedule, annexed with the CNSA 1997, therefore, the ANF Authorities were not competent to register the case and this court being the special court for control of narcotics substances is having no jurisdiction to decide this case; By conducting the preliminary inquiry, ANF authorities have violated the provision of section 154 Cr. PC, therefore, the accused cannot be convicted due to this illegality; The Grays pharmaceutical Company after purchasing the 500 kgs Ephedrine has manufactured the medicines namely De- Asm 30 grams tablets and has sold out the same to Arfat Traders Karachi, AB Pharma Rawalpindi and Hammas Pharma Rawalpindi; From the record it has been proved that said tablets / medicines were sold out to the above stated companies, hence, Grays Pharmaceutical Company and all of the accused persons neither misused the chemical substance i.e. Ephedrine, nor they have emitted any offence, therefore, they are entitled to acquittal of the charge that the case of the prosecution is not to the extent of violation of rules by the owners of Grays Pharma, rather the case of ANF, against the accused persons is about misuse of quota of Ephedrine allotted to the company by the Ministry of Health. He further argued that from the perusal of the statements of PWs it has become clear that ANF has maneuvered their evidence while pressurizing the PWs, which fact was admitted by one of the PW namely Rizwan Saleem (PW-17) during his cross examination that the ANF officials have obtained his different statements during his illegal confinement in the custody of ANF and to this effect he has submitted an affidavit before the Hon'able Supreme Court of Pakistan; From the testimony of PWs, the innocence of the accused persons present in court has become clear to the effect that all the accused persons have falsely been implicated in the instant case due to some political enmity; Dyes and punches by which De- Asm Tablets were prepared were not sent to chemical examiner for obtaining the report from laboratory; Learned defence counsel further emphasized that the reports of chemical examiners are not according to the Form-I and Form-II of Rule 4 sub rule (2) Control of narcotics Substances (Government Analyst) rules 2001 nor the samples of tablets were sent to chemical examiner in accordance with law i.e without mentioning of name and weight etc; He has argued that prosecution has failed to prove its case against the accused persons and prayed for acquittal of all the accused persons from this case.
45. Final arguments have been heard. Record perused. My observations are as under:
46. Before commenting upon the merits of the case, it is hereby of accused Muhammad Asif Sheikhani, the said Muhammad Asif Sheikhani can be treated as a witness and whether he can be produced as a PW during the trial, without having been declared him as an approver and if so, what is its legal impact?
In presence of observations in the order dated 20-06-2013 as stated above (as the Learned Magistrate has observed that prima facie incriminating material against the accused namely Muhammad Asif Sheikhani regarding his involvement in case of this serious nature was found), the summoning of above stated Muhammad Asif Sheikhani as the accused of case is necessary or not? iii. Similarly, during the course of arguments, it has been stated that Grays Pharma was not registered under Company Ordinance, 1984, rather the same was registered as a firm under the partnership Act and Mst. Razia Zahid Bakhtawari was also the partner of that firm and said lady was nominated accused of the said FIR. Can she be summoned as an accused at this stage i.e. at the end of the trial to face the trial of this case? iv. Whether , she can be summoned to face trial on the ground that she herself has stated during cross examination that till the year 2011, tier husband namely Zahid Bakhtawari was doing/managing all the acts on her behalf regarding the firm of Grays Pharrn6 till the year 201 1 and he has signed 22 bills of the said film?
What are the legal implications regarding the making of statement of above said Razia Zahid Bakhtawari regarding her production in witness box without adopting the legal procedure fordeclaring her as approver? vi. Although Mst. Razia Zahid Bakhtawari was nominated as accused but she was produced by the prosecution as PW - 19 and during her cross examination she has stated that her husband namely Zahid Bakhtawari remained participated in all the acts of the firm, whether her husband can be treated as accused of this case on the basis ofthe statement of her wife (when she was allegedly produce by the prosecution as a PW)? vii. Similarly, it has been stated to this court that Muhammad Zulfiqar Sheikhani PW-23 was implicated as a accused during the investigation and he was declared as proclaimed offender as per statement of PW-3 namely Syed Imtiaz Hussain and then without adopting legal procedure for declaring him as approver, whether the prosecution was competent to produce him as PW and what is legal status of his evidence? viii. Whether , said Muhammad Zulfiqar Sheikhani can be summoned to face trial of this case as he was declared as proclaimed of fender by the prosecution during the investigation?
Therefore, this court deems fit to decide the said points before commenting upon the merits of the case. Crux of above mentioned points is that whether PW-19 Razia Zahid Bakhtawari, PW-21 Muhammad Asif, Sheikhani and PW-23 Muhammad Zulfiqar Sheikhani can be summoned to face the trial of this case and whether all the above stated persons are competent to enter into the witness box without adopting the procedure as required u/s 337 Cr.P.C.
No doubt, status of above stated PWs as accused is admitted by the prosecution and no permission of learned Area Magistrate was obtained to produce them as witness while observing the formalities of Section 337 Cr .P.C.
As per prosecution story, narrated in the FIR, Mst. Razia Zahid Bakhtawari was 50% partner of Muhammad Hanif Abbasi accused present in court and she was not nominated in the FIR as accused and nothing could come on record during the trial to show that she was not having partnership of Grays Pharma in the year 2010 and 2011 and nothing is on the file regarding the cancellation of their partnership.
Similarly , the 10 has obtained warrants of arrest of PW-21 Muhammad Asif Sheikhani and PW-23 Muhammad Zulfiqar Sheikhani and he has also got declared them as proclaimed of fenders.
Similarly , the PW-21 Muhammad Asif Sheikhani was arrested by the 10 and his physical remand was obtained by the I.O while producing him before the court of learned Area Magistrate while submitting written application mentioning therein that against the PW-21 sufficient material was available to connect the accused with the commission of offence. Later on, his discharge report was prepared and subm itted before the learned Area Magistrate but the same was declined with the observation that sufficient incriminating material against him was present on the file.
In this way, the status of above said persons was as of accused of the case and not as witness, therefore, they could not be produced as prosecution witness as like this witness no one could be compelled to make his statement against any person on oath. As per law an accused not legally discharged or lawfully tendered pardon either under section 337 or 494, Cr.P.C. continues to be as before in the clutches of law and to all intents and purposes he is an accused cannot be administered oath or examined as a witness in the case and his evidence is wholly inadmissible against the other accused persons. In this respect, this court is fortified by case law "1970 P Cr. LJ 722" and case titled "R. Dinesh kumar @ Deena Vs The State" passed by Supreme Court of India in criminal appeal No. 454 of 2015 arisen out of SLP (Criminal) No. 9928 of 2014, in which the question of similar nature was also decided by Indian Supreme Court.
As Mst. Razia Zahid Bakhtawari (in FIR) and Asif Sheikhani and Zulifqar Sheikhani were introduced as accused during investigation and no legal procedure u/s 337 & 494 Cr.P.C. was adopted, therefore, their depositions made by them as PW- 19, PW-21 and PW-23, respectively are illegal and inadmissible, hence, the same are discarded.
Similarly, as the prosecution has not adopted the legal procedure as required u/s 337 & 494 Cr.P.C., therefore, SHO Police Station ANF RD North Rawalpindi is directed to submit fresh report as required u/s 173 Cr.P.C. to the extent of above stated three persons within fifteen days.
47. As per well settled principles of law, the prosecution is duty bound to prove its case against the accus ed persons beyond any reasonable doubt and in case of arising of any dent or doubt in the prosecution evidence, the benefit of the same can only be given to the accused as the accused is favourit child of law and benefit of the same cannot be stretched in the favour of prosecution, at all.
As per well settled principles of Islamic Criminal administration of justice, it is a better for Qazi to err while acquitting mine guilty persons rather to convict an innocent person.
Although it has been forcefully argued by the learned SPP and Deputy Director Law ANF that section 29 of CNS 1997, pasts the duty upon the defence to prove his case but this court is of the humble view that as per century old principles of criminal dispensation of justice, primarily burden of proof lies on prosecution and the prosecution is duty bound and could not by any means be absolved there from its legal duty. In this regard, irrespective of provision contains section 29 of CNS 1997. Primarily, prosecution is bound to prove / establish its case, prima facie, then the burden is shifted on the shoulders of the defence to prove his innocence and to prove that the accused has not committed an offence u/s CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 and if the accused remained fail to discharge his innocence in case of prima facie establishing the case by the prosecution, this court is bound to presume regarding the having possession of illicit articles / contraband material / Narcotics Drugs or Psychotropic Substance or Controlled Substances.
48. The learned defence counsel has emphasized while arguing that the "Ephedrine" does not fall in the definition of narcotics substance, controlled substance, and pshychotropic substance and the same is also not mentioned in the schedule of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997, therefore, the ANF Authorities were not empowered to register the case as well as to investigate the same and this court has been constituted under CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 to try the offences registered under. any provision of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997, therefore this court has no jurisdiction to decide this case.
To decide this question, the reading of section 2 (K), 2 (S) and 2 (za) of the CONTROL CAF NARCOTIC SUBST ANCES ACT,1997, is necessary . Admittedly , no definition of "Ephedrine" has been given in the CONTROL OF NARCOTIC SUBST ANCES ACT, 1997 and the same is not being mentioned as Psychotropic Substance in the schedule of CONTROL OF NARCOTIC SUBST ANCES ACT, 1997. As per section 2 (k) of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 any substance which may be used for production or manufactured of Narcotics Drugs or Psychotropic Substance is called `controlled substance! Similarly, as per section 2 (s) of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997, Narcotic Drug means Coca leaf, Cannabis, Heroin, Opium, Poppy straw and all manufactured drugs. Similarly, as per section 2 (za) of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997, any substance which is mentioned in the schedule of the CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 or any substance which4Potified / declared as Psychotropic Substance can be called as "Psychotropic Substance". Perusal of the schedule of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 shows that the list of Psychotropic Substances have been given in which about 85 substances have been mentioned as Psychotropic Substances. At serial No.47 of said schedule "METAFETAMINE" is mentioned and in column No.2 of the same, its non proprietary / trivial named is mentioned as "methamphetamine". Similarly, at column No. 48 the substance namely "METAFTAMINE" with its trivial name in column No.2 "metafetamine" is mentioned. This court is not the chemist / expert or no chemical / chemist has expert assisted this court in this respect, however this court has researched Ile Google while going at Website "https://erowid.org/archive/rhodium/chemistry/ meth.hi-rp.html." according to which the matter of preparation of "Methamphetamine" the "Ephedrine" has been given. The relevant article is produced as under;- METHAMPHET AMINE SYNTHESIS VIA HI/RED PHOSPHOROUS REDUCTION OF EPHEDRINE)
FORENSIC SCIENCE INTERNATIONAL, 48 1287134 (1990)
HARRY F. SKINNER HTML by Rhodium SUMMARY The illicit manufacture of methamphetamine from ephedrine via reduction with hydriodic acid and rod phosphorus is discussed.stereochemistry, mechanism, synthetic impurities, and analysis of clandestine methamphetamine samples are addressed.
INTRODUCTION The most common method of manufacture of methamphetamine in the United States is the reduction of ephedrine with hydriodic acid and red phosphorus (HI/red P). Manufacture of methamphetamine from phenyl - 2-propanone (P2P) and methylamine yields ()-methamphetamine, whereas the reduction of (-)-ephedrine or (+)-pseudoephedrine yields (+)-methamphetamine.
Even though the HI/red P ephedrine reduction method is relatively new (1982) in clandestine laboratories, the method has been known for many years and has been used to reduce carbonyl groups, nitrites, halides, and alcohors-. Reduction of ephedrine to methamphetamine is well documented in the literature. The configurations of ephedrine were determined by reduction of the chloro- and bromoephedrines by Emde and Schmidt using various reduction methods not including the HI/red P method. Emde incorrectly cites Ogata as producing (+)- methamphetamine in 1919 by heating (-)-ephedrine or (+)- pseudoephedrine with HI and yellow phosphorus. The clandestine manufacture of (+)-methamphetamine from (-)-ephedrine or (+)- pseudoephedrine is a very simple process. A mixture of ephedrine, red phosphorus, and hydriodic acid is heated, filtered, made basic, extracted, and crystallized as the hydrochloride salt from ether/acetone with hydrochloric acid or hydrogen chloride gas or from trichloromonofluoromethane (i.e. "Freon-11') and hydrogen.
1 23 1 1 5 chloride gas. The salt is filtered and dried. The theoretical yield is 92% by weight of the precursor ephedrine, whereas the clandestine yields range from 50 to 75% by weight of the precursor ephedrine. The final product varies from white to orange/brown in color. It is usually greater than 95% in purity and contains no ephedrine.
RESULTS AND DISCUSSION The HI/red P reduction of ephedrine to methamphetamine involves a cyclic oxidation of the iodide anion to iodine and reduction of iodine back to the anion by the red phosphorus, the latter being converted to phosphorous or phosphoric acidsil.
The stereo specificity of the reduction results from mechanistic factors as well as the diastereoisomeric nature of the ephedrines. Ephedrine and pseudoephedrine are 1-phenyl-1-hydroxy-2-methylamino-propane; each contains two chiral centers at the No. 1 and No. 2 carbons of the propane chain. Reduction to methamphetamine eliminates the chiral center at the No. 1 carbon.
The diastereoisomers, (-)-ephedrine and (+) pseudoephedrine, are reduced to (+)-methamphetamine, whereas the enantiomers reduce to ( )-methamphetamine. The () mixture of either ephedrine reduces to racemic methamphetamine. The enantiomer and diastereoisomer of ephedrine selected as the precursor dictates what isomer of methamphetamine will be produced.
The interesting aspect of the HI/red P ephedrine reduction is that P2P is produced as an impurity in the synthesis.
Normally , discovery of P2P in a clandestine laboratory indicates that ()-methamphetamine, is the product.
However , the P2P is formed as an impurity and has no bearing on the enantiomeric form of the synthesized methamphetamine, since the enantiomer of the methamphetamine product depends solely on the enantiomer of the ephedrine precursor .
The reaction mechanism for the reduction of ephedrine with HI/red P is Judge summarized as follows.
Ephedrine reacts with HI to form iodoephedrine (iodomethamphetamine) which is predominately reduced to methamphetamine. Iodoephedrine can undergo a ring closure to form 'aziridines'.The 'aziridines' (cis- and trans-1,2-dimethyl- 3-phenylaziridine, mol wt 147) could also be formed directly from ephedrine by acid dehydration. However, formation from iodoephedrine is more likely. The 'aziridines' can be reduced to methamphetamine or react to form the impurities found in the reaction. The 'aziridines' can undergo a ring opening acidic hydrolysis to form phenyl-2-propanone. The P2P forms an aldol condensation product with subsequent dehydration to form the 'naphthalene' impurities, 1,3-dimethyl-2-phenylnaphthalene and 1- benzyl-3-methylnaphthalene.The non-acidic reduction of chloroephedrine produces the 'aziridines' but no P2P . The transient existence of iodoephedrine was detected indirectly by the total 'aziridines'. The analogous chloroephedrines undergo thermal decomposition to the 'aziridines' in the injection port of the gas chromatograph (Martin, W., pers. comm.).
ANALYSIS Samples from HI/red P laboratories vary from bottled precursors, solids, single and multiple phase liquids with a pH range of 1-14, to sludges. Identification of methamphetamine is easily made by direct infrared analysis on the finished product or acid/base extraction of most samples with subsequent conversion to the HCI salt. In cases where ephedrine HCI is present, either from addition as an adulterant or from incomplete conversion of the original ephedrine, methamphetamine HCI can be separated by washing the solid with chloroform. The chloroform insoluble portion - ephedrine HCI, and the chloroform soluble portion methamphetamine HCI, can be easily identified by IR. GC/MS can also be used to identify methamphetamine.
The neutral P2P and 'naphthalene' impur ities can be extracted from the methamphetamine in the original reaction mixture (acidic with HI) or any other acidic solution in the clandestine laboratory and can be identified easily by GC/MS techniques.
Ephedrine once exposed to hydriodic acid can form an ion-pair with the hydriodide. The methamphetamine formed in the reaction also can form an ion pair with the hydriodide. The HCI and HI salts of methamphetamine are both insoluble in ether and soluble in chloroform and very soluble in water. The HI salt is readily soluble in acetone, unlike the HCI salt which is only slightly soluble. The valuable property of the HI ion-pair is that methamphetamine HI can be extracted from an aqueous solution with chloroform.s 11,12 Methamphetamine HCI will not extract into chloroform from an aqueous solution. The HI salts of the ephedrines also have similar properties. Methamphetamine HI can be identified by IR from the original reaction mixture. This method of identification will also work on the discarded red P sludge. First, an ether wash is required to remove the neutral P2P and 'naphthalene' impurities. This is followed by a chloroform extraction. The chloroform extract is evaporated and the light yellow crystals of methamphetamine HI are identified by IR.
If the HI/red P reaction is incomplete, ephedrine HI or pseudoephedrine HI can be identified by their IR spectra using the same extraction procedures given above for methamphetamine HI. Partial conversion will obviously result in a mixture of the HI salts being obtained. Methamphetamine, ephedrine, and pesudoephedrine HI salts are light yellow solids at room temperature. Racemic methamphetamine HI is an oil. The enantiomeric (+) and (-) salts have identical IR spectra. However, the IR spectrum of the ()- mixture differs from the enantiomers.
Identification of (+)-methamphetamine HI indicates that either (-) Ephedrine or (+)-pseudoephedrine was reduced via the hydriodic acid/red phosphorus method. Identification of P2P and the 'naphthalenes' as purities also indicates an ephedrine was reduced Under acidic conditions The normal screening test for amphetamines is the Marquis reagent which turns orange to orange/brown.
However, the Marquis reagent is not a useful test for methamphetamine HI. Methamphetamine HI reacts with the reagent to give an immediate dark brown color with the evolution of iodine. The dark brown color is caused by the iodine formed from the reaction of sulfuric acid with iodide ion. Most organic iodides also produce the same reaction with sulfuric acid. For example, all of the methamphetamine and ephedrine hydriodides, as well as sodium and potassium iodide, also liberate iodine with sulfuric acid.
The nitroprusside screening reagent can be used to differentiate methamphetamine (secondary amine, deep blue color) from amphetamine and dimethylamphetamine (primary and tertiary amines, no color).
Quantitation of both solid and liquid samples found in HI/red P laboratories is routinely done by HPLC and GC.
The retention times of compounds are given in Table 1. The enantiomeric form of methamphetamine or ephedrines is determined by one or more of the following: polarimetry, mixed microcrystals, mixed melting points, infrared or enantiomeric derivatization GC techniques.
Analysis of an HI/red P clandestine laboratory in the field presents hazards. HI is a toxic and strong irritant and contact must be minimized. Red phosphorus is a flammable/explosive solid and must be handled with care.
Phosphine, a highly poisonous gas, can be produced by careless heating of the HI/red P mixture.
CONCLUSION The hydriodic acid/red phosphorus reduction of ephedrine to methamphetamine has been discussed. The stereochemistry of the reaction has been shown as well as the route of reaction to the impurities and products.
Data obtained from IR spectroscopy and GC/MS spectroscopy have been presented to aid in the analysis of the precursors, intermediates, impurities, and products.
49. Perusal of the above said research has made it clear that "Methamphetamine can be made by using the "Ephedrine". In this way this court has no hesitation to hold that although the "Ephedrine" is not mentioned in the schedule of CNSA 1997, and the same has not been defined in the section 2 of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 (directly) but even then the same falls in the definition of "controlled substance" as defined in section 2 (k2) of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997". Furthermore, the Apex Court i.e Supreme Court of Pakistan "although has not given the authoritative judgment on this point but the Apex Court i.e. Supreme Court of Pakistan was pleased to hold in case titled "The State though Force commander Director ANF Vs Rizwan Ahmed Khan and others" in case law 2012 SCMR 870 as under:- "We would not like to comment in depth on the conduct and reaction either of the personalities or functionaries unless they are not heard except observing that commission of the crime, as it has been disclosed in the FIR, is of serious nature notwithstanding that whosoever is involved and what is his status, however, prima facie it has got its own repercussions independent with criminal proceedings and also in respect of the alleged favour by Ministry of Health, particularly, to Berlex Lab International, Multan and Danas Pharmaceuticals Private Limited by extending them quotas of13 Regional Ephedrine, which is a chemical used in methamphetamine and the same is also used for the purpose of addiction, may be within the country and outside the country. Detail discussion, however, shall be made subsequently, but we may observe that if the allegation as leveled is there, the concerned authorities should have allowed a transparent inquiry and investigation instead of causing obstructions and hampering the same for one or the other reason".
In view of above, this court is of the humble view that the "Ephedrine" is Controlled Substance by which "METHAMPHETAMINE" can be prepared and the same i.e. Methamphetamine does fall in the schedule of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 hence the ANF Authorities were competent to register and investigate this case and this court is having jurisdiction to try the instant case .
50. The learned defence counsel has forcefully argued that prior to registration of the instant case i.e FIR No. 41/2012, Mr. Abid Zulfiqar has conducted the inquiry which is against the command of law as there is no concept of inquiry prior to registration of criminal case in the Code of Criminal Procedure i.e. specially under section 154 of Cr.PC. It is hereby observed that the Code of Criminal Procedure 1898 in general (procedural) law whereas Control of Narcotics Substance Act, 1997, is the special law which is substantive law as well as procedure law. To some extent, it provides its own procedure. Perusal of the section 47 CONTROL OF NARCOTIC SUBST ANCES ACT, 1997, it is clear that. the Code of Criminal Procedure 1898 is applicable on the cases registered under CONTROL OF NARCOTIC SUBST ANCES ACT, 1997 only to the extent of trials and appeals. For convenient, Section 47 CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 is hereby reproduced as under;- "Application of the Code of Criminal Procedure, 1898. Except as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of a death sentence) shall apply, to trials and appeals before a Special Court under this Act".
Furthermore, as per command of Anti Narcotics Force Act 1997, officer not below the rank of Inspector may inquire or investigate any matter, therefore, in humble view of this court due to special enactment the conducting of inquiry before the registration of case does not vitiate the trial of the cases registere d under any provision of Control of Narcotics Substance act, 1997.
Although, it has been forcefully argued that ANF authorities were bent upon to secure conviction of accused present in court with malice and prosecution evidence has been procured by coercion, but this court is of the humble view that it is duty of the court to evaluate the evidence of each witness even though he is inimical to any of the accused and if it is found that any PW was inimical to any accused that appreciation of such like witness requires with great care and caution. Although PW17 Rizwan Saleem has stated during cross examination that he has submitted affidavit before the Hon'ble Supreme Court of Pakistan pertaining to this case mentioning therein regarding wrongful confining him by ANF authorities and they have obtained different statements from him but this sentence of PW17 cannot vitiate whole of the trial and same is not sufficient to discard the evidence of all PWs produced by the prosecution, however , while perusing the statement of above said PW-17 this court is of the humble view that evidence and material brought on record required perusal with great care and caution hence with able assistance of learned defence counsel and learned SPP and learned Deputy Director Law of ANF. The lengthy file (in which documents are in bulk) have been perused.
This court has already discarded the evidence of PWs 19, 21 & 23 therefore, there is no need to discuss their depositions / testimonies as their depos itions were brought on record, without adopting the legal procedure as mentioned in section 337 Cr .P.C.
52. As per prosecution version, in this case there are two sets of accused, one set is consisting upon single accused namely Muhammad Hanif Abbasi who is statedly proprietor / co-partners of Grays Pharmaceutical Company and the other set is consisting upon remaining accused namely Muhammad Basit Abbasi, Ahmed Bilal Adil, Ghazanfar Ali, Rana Mohsin Khurshid, Siraj Ahmed Abbasi, Muhammad Nasir Khan and Nazakat Khan.
53. As per prosecution version, Grays Pharmaceutical Company was registered for the manufacture of medicine and said Pharmaceutical Company has got registered a medicine namely "De-Asm" Tablet 30 mg and as the said tablet could not be prepared without using the "Ephedrine" therefore, Grays Pharmaceutical Company has applied for getting the quota / permission to purchase 500 Kgs of "Ephedrine" . The said Grays Pharmaceutical Company was permitted to purchase "Ephedrine" weighing 500 Kgs from Alpha Chemical Lahore in accordance with law and then was to manufacture the above stated medicine namely "De-Asm
54. No doubt documentary evidence of prosecution regarding the registration of company namely Grays Pharmaceutical Company, registration of the medicine namely "De-Asm" tablets and the permission for quota has not come on the record in accordance with law but the said facts have not been denied by the defence.
No doubt the principle that the fact would be deemed to be proved if the witness stated such fact have not been cross examined regarding the same is the principle applicable to only civil cases and not the criminal cases and the criminal cases are to be decided on the basis of principle of totality of particular facts gathered from the circumstances of the case and not on the single ground of not cross examination or otherwise of witness on a particular facts stated by him as enunciated in case law "2018 SCMR 149. Since recording of evidence from PW1 to PW36, the manner of cross examination of learned defence counsel and defence put to each and every necessary witness hag made it clear that defence has not denied the registration of Grays Pharmaceutical Company, registration of De-Asm tablets and allotment of quota and then purchasing of "Ephedrine" from Alpha Chemical In this way, in humble view of this court, the admitted facts need not be proved and it can be said that defence has impliedly admitted the above said facts. Although learned defence counsel has forcefully argued that the defence has not clearly admitted the above said facts but perusal of file has make it clear that the defence has also not denied the above said facts rather he has relied upon the said facts the making an attempt to his defence. Therefore, this court is of the humble view that it has become clear that the above said facts have been proved. As per law, Grays Pharmaceutical Company is not registered company under Companies Ordinance 1984 and same is only a Pharma Company under partnership deed whose proprietor / co-partner is Muhammad Hanif Abbasi accused present in the court, and he has purchased the "Ephedrine" weighing 500 Kgs for the preparation of De-Asm tablets. When the above said facts have not been denied categorically rather same has been admitted impliedly and the defence has also make an attempt to make up his defence on the same ground while stating that "De-Asm" tablets were actually manufactured by the Grays Pharmaceutical Company. If arguments of learned defence counsel (for the sake of arguments) is admitted to the effect that prosecution could not prove the purchasing of "Ephedrine" by Grays Pharmaceutical Company then how did the Grays Pharmaceutical Company has allegedly manufactured the medicine / De-Asm (as per defence of all the accused present in the court), therefore, this court has no hesitation to hold that prosecution has succeeded to prove this case to the extent that Muhammad Hanif Abbasi being proprietor of Grays Pharmaceutical Company has purchased 500 Kgs of "Ephedrine" from Alpha Chemical Lahore.
55. It is prosecution version that after purchasing the above said Controlled Substance i.e. "Ephedrine" accused Muhammad Hanif Abbasi has not manufactured the De-Asm tablets rather he has sold the same to the black market but no iota of evidence could come on record regarding the sale of "Ephedrine" by Muhammad Hanif Abbasi to anyone else. It should be noted that Hon'able Superior Courts of Pakistan, time and again, have observed that criteria and yardstick for examining the accused of normal' possession or transportation of narcotics drugs should be different from the accused of trafficking, smuggling and having the possession of narcotics drugs as in such likes cases, it is very difficult for the prosecution to procure the evidence of the quality which is normally procured in normal criminal cases and further examining the surrounding circumstances, and evidence collected so far with the view to ascertain innovative method adopted by the persons indulged in narcotics to take away the material. Similarly , the superior courts were pleased to observed time and again that approach of the court should be dynamic and pragmatic in the cases of narcotics as the persons indulged in the narcotics are so clever that they used the tactics by which it is very difficult for the prosecution to produce the evidence of such a nature which can be produced in the normal criminal cases.
56. Although the prosecution could not succeed to establish that accused Muhammad Hanif Abbasi has sold out the "Ephedrine" to anyone else, purchased by him from Alpha Chemical Lahore but even then this court is of the humble view that accused being proprietor / co-partner of Grays Pharmaceutical Company was bound to state legal use of "Ephedrine" as he was permitted to purchase the "Ephedrine" through legal process for the legal use of the same i.e for the manufacturing of De-Asm tablets. Similarly, the prosecution has leveled the allegation against the accused Muhammad Hanif Abbasi that he has not manufactured the De-Asm tablets and has misused the "Ephedrine" but while producing the PW-16 Muhammad Arif Mithani and PW-22 Muhammad Idrees Sheikh, the prosecution version regarding non-manufacturing of De-Asm tablets by Grays Pharmaceutical Company has been partially fallen on the ground. For the ease of reference the depositions made by PW-16 is reproduced as under; "Stated, that in the year 2012, I vitas posted as drug inspector of Katchi Gali and surrounding area medicine market. Divisional drug Inspector directed me to inquire into the matter of De-Asm Tab of Arfat Traders and find out facts and figures. I visited Arfat traders and found Mr. Zulfiqar Sheikhani was Incharge of sales of Arfat. Traders. I inquired from him about De-Asm tabs, he informed me that they purchased 11000 Jars which contains 1000 tablets in each jar from Gray's Parma and they have sold 6000 Jars in the market. I reported about this fact to my senior. Then after couple of days I received another instruction that remaining 4000 jars need to be tested by Drug testing laboratory Sindh. I again visited Arfat Traders and collected 04 sample of each batch from total of 14 batches. I sent 01 sample of each batch according to rules to drug testing laboratory, other sample of the batch to quality control board Sindh, 01 sample to the manufacturer i.e Gray's Pharma and 01 sample to Arfat Traders from where I collected samples. After some time I received reports from laboratory and submitted to my office and 01 copy to Arfat Trader and 01 copy to provincial quality control and sent 01 copy to RD ANF Karachi. Then I inquired from Arafat Traders about selling receipts and purchase receipts but they remained unable to produce receipts to me. Arfat Traders provided me a list which they have already submitted to RD ANF Karachi. One Asmat-ullah of RD ANF Karachi ask me to verify list of customers from Arfat Traders which was provided to RD ANF Karachi (subject to objection by learned defence counsel) I visited addresses of some of the customers mentioned in said list but non has verified about purchase of De-Asm Tablets from Arfat Traders (subject to objection by learned defence counsel). I asked Arfat Traders to provide me purchase invoices but they could not provide at that time and after couple of days they provided me invoices which were without warranty by the manufacturer. I raised objection on this, that these are without warranty. Then after one week they provided me invoices with warranty. Then I reported the matter to high-ups. I wrote letters to Gray's Pharma, two of my letters returned back un-delivered. Then after some time I received letter from Gray's Pharma, that they have shifted their factory from one address to another. Due to which reasons letter written by me returned un-delivered. I inquired from gray's Pharma about manufacture of De- Asm tabs and sales to Arfat Trades. Then I received a letter from Gray's Pharma that Arfat Traders is their authorized agent. It is provided in Section 21 of drug act "if one says that he is authorized agent, then no warranty is required under the rules". Reports of samples were received to me which I submitted, 01 report to quality control board, 01 to RD ANF Karachi, 01 report to Arfat Trader and 01 is with me. After that finally I went again to Araft Trader for checking of the products, when they disclosed that they have already sent back said products to Gray's Pharma.
XXXX Sardar Muhammad !shag Advocate learned counsel for accused My post was Provincial Drug Inspector . At the moment of my inspection of Arfat Trader 4000 jars were available there. It is correct that to maintain record of onward sale by the agent is responsibility of authorized agent and not of manufacturer . Arfat Traders categorically admitted that they have purchased this drug from Gray's Pharma.
Letters were sent by me on the address of factory situated in 1-9 Area. Third letter was received to me from Gray's Pharma that they have shifted to Rawat industrial estate. Result of all the samp les was that all are of standard quality , containing Ephedrine HCL. HCL is a component of Ephedrine. Storage condition of Arfat Trader was up to standard".
Similarly PW -22 has deposed as under; Stated, that this matter pertain to year 2012, at that time I was Working as Divisional drug Inspector Karachi.
At that time a period of 6 years has passed ire while working on this post. On 22nd June 2012 chief drug inspector asked me that 6 letter of Lieutenant Colonel Ashar Rizwan of ANF Karachi has been received they need information and comments about some drug, drug which contain Ephedrine. I shared this information with my subordinate District drug Inspector Muhammad Arif Mithani. I submitted required information and comments to Chief drug inspector and endorsed copy to ANF Karachi. On 13 July 2012 one letter of ANF containing clear cut direction received that 4454 packets of De-Asm Tablets are lying with Arfat Traders Karachi there samples be taken for test and analysis and copy of test report be sent to ANF Karachi. While performing my administrative roll I directed area drug Inspect Arif Mithani to comply with direction as required by ANF Karachi. On 18July 2012 Arif Mithani area drug Inspector took and sealed the samples of De-Asm Tablets of 14 different batches and sent them to DTL (Drug Testing Laboratory Sindh) at Karachi. On 16July 2012 I intimated to ANF Karachi with photocopy of from-ll about the compliance of instructions and directed District drug inspector Arif Mithani, that as soon as he receives test reports in respect of said drugs, may be intimated to ANF Karachi. About on 14November 2012 Imtiaz Hussain Shah Inspector of ANF came in my office and recorded my statement in this context. He also inquired from me that whether I have any other information regarding any other drug except Da- Asm. I replied that I have no such information.
XXXX (Tanveer lqabal Advocate learned counsel foraccused. In response to direction dated 22June 2012 of Chief Drug Inspector I had submitted a detailed report with reference to De Asm Tablets from M/sArfat Traders Karachi vide my letter Number DCA/DDI/KHI/318/20 dated 09 July 2012 to him. I sent copies of referred letter to Lt Col Asher Rizwan as well as to Arif Mithani area Drug Inspector. Photocopy which has been shown to me is the correct photocopy of the same which contain my signatures, same is mark-DB. It is correct that it is mentioned in above letter that in compliance of direction of Chief Drug Inspector under my supervision Arif Mithani area drug inspector visited Arfat Trader on 25-06-2012 and 28-06-2012 was for purposes of investigation. Above said investigation was not for the purposes to ascertain sale, purchase and availability of De-Asm Tablets, rather it was for verification of availability of De-Asm Tablets. It is correct that in letter mentioned above written by me it is mentioned that purpose of visit / verification dated 25-06-2012 and 28-06-2012 for investigation regarding legal aspect of sale and purchase of tablets De-Asm of different batches manufactured by Grays Pharmaceutical Islamabad. It is correct that it is mentioned in above letter regarding facts and figures that total 11106 Jars/Packs were purchase by Arfat Traders out of which 4454 Jars/Packs are available in stock, wh6reas 6652 jars/packs have been sold by M/s Arfat Traders. It is mentioned in letter number DCA/DDI dated 09-07-2012 that invoices of 11106 jars/packs purchased from Grays Pharma by M/s Arfat Trader were also produced. I have not brought original record of above referred letters with me. In response to letter number DCA/DIDK/333/334 dated 18 July 2012 was written by me to Joint Director ANF Karachi. I directed Drug Inspector Arif Mithani to submit the report of Provincial Government Analyst to ANF Karachi. I do not know whether he has sent said report or not. It is incorrect to suggest that I am intentionally suppressing the factum of sending of analysis reports to ANF".
Perusal of above said depositions of PW-16 & PW-22 have made it clear that 11000 Jars containing 1000 tablets "De-Asm 30, mg" in each jar duly manufactured by Grays Pharmaceutical Company was purchased by Arafat Traders Karachi and the same were found there. In this way, from the evidence of both the above stated PWs it has become clear that Grays Pharmaceutical Company has manufactured 11000 Jars containing 1000 tablets "De-Asm 30 mg" and while using the "Ephedrine". Further perusal of above said statements of the both PWs have made it clear that about 4000 Jars were seen by the PW-16 and PW-22 in the custody of Arafat Traders Karachi whereas 6000 Jars were sold by Arfat Traders and some of them were taken into possession and were sent to the Lab established by Government of Sindh according to which same were found as of standard. As per record, every tablet of De-Asm was containing 30 mg of "Ephedrine" in this way, from the record and from the calculation, it has been established that Grays Pharmaceutical Company has used the "Ephedrine" weighing 330 Kgs as per law for the manufacture of De-Asm tablets which were sold to Arfat Traders Karachi; from the prosecutionth th th nd evidence as stated above and to the extent of remaining quantity of "Ephedrine" prosecution has succeeded to establish that accused Muhammad Hanif Abbasi has not prepared the De-Asm tablets.
56-A. During the cross examination on PW-35 it has also come on record that he has visited the Grays Pharmaceutical Company on the directions passed by learned predecessor of this court and found 5100 Jaras containing 1000 tablets in each Jar which are lying in the Godown of Grays Pharmaceutical Company.
Admittedly, as per record 4000 Jarrs (returned to Grays Pharmaceutical from Arfat Traders Karachi) were included in the above stated 5100 Jarrs. In this way, it is making clear that remaining 1100 jarrs of having 1000/- tablets in each Jar was lying in the stock of Grays Pharmaceutical Company therefore, it has become clear said 1100 Jarrs of "De-Asm 30 mg" tablets (having 1000 tablets jar) were manufactured by using the "Ephedrine". In this legal use of another 33 Kgs "Ephedrine" was used. In this way from the prosecution evidence, legal use of about 363 Kgs "Ephedrine" by accused Muhammad Hanif Abbasi become clear. To the extent of remaining part of "Ephedrine" i.e the misuse of "Ephedrine" weighing 137 Kgs, the prosecution has succeeded to prove its case.
56-B. As per well settled principle of law this court is also bound to discuss the defence version taken by the defence. From the defence, accused Muhammad Hanif Abbasi has taken the stance that he has been politically victimized and is innocent and he has used the 500 Kgs "Ephedrine" while manufacturing De-Asm tablets. As it has already been observed that from the prosecution evidence the manufacturing of De-Asm tablets while using 363 Kgs of "Ephedrine" has been established but to the extent of remaining i.e 137 kgs "Ephedrine" nothing could come on record in the prosecution evidence by which it can be said that Grays Pharmaceutical Company / Muhammad Hanif Abbasi has manufactured the De-Asm tablets. In such like situation, even in normal criminal cases, defence is bound to prove the defence, although the onus is not heavier a like as prosecution but as per Section 29 of CNSA 1997 it was duty of the defence to prove his stance otherwise the court is bound to presume that allegation leveled against him are correct as to the extent of misuse of 137 Kgs of "Ephedrine". For ease reference section 29 of CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 is reproduced as follows:- Presumption from possession of illicit articles.----In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of---- to show that said payments were made by Arfat Traders, Hammas Pharma and AB Pharma to Grays Pharmaceutical Company for the purchase of De-Asm tablets. Although there is, only one entry showing the same regarding Arfat Traders but the remaining entries do not confirm the defence version to the effect that said payments were made by any of company to Grays Pharmaceutical Company for the payment of De-Asm tablets. It is to be noted that the invoices is a private documents which can be prepared at any time by anyone else and record of same is normally not safe. In the business matters, it is very old saying that for a business or a factory there are three necessary needs for the success of a business which are as under;- i. Gate. ii. Rate. iii. W eight Every businessmen used to guard his interest while keeping his close eyes on Gate register and gate keeper as his business depends upon the same as everything enter into and going outside is to be mentioned in the same. To prove defence version, it was very easy for the accused Muhammad Hanif Abbasi to produce Gate register of his factory i.e. Grays Pharmaceutical Company but he has not produced the same. Although it has been forcefully argued by the learned defence counsel that all the documents and register were taken by investigation officer and inquiry officer but all the registers and papers taken into possession were brought on record by prosecution and during cross examination the defence has not put any question to any of the PW regarding taking into possession of the gate register by inquiry officer or investigating officer. In humble view of this court, although the gate register is private document difficult as not only one thing is mentioned in the Gate register but it is duty of gate keeper to mention the incoming and outgoing of every article of the.
(a) any narcotic drug psychotropic substance or controlled substance;
(b) any cannabis, coca or opium poppy plaint growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; Or
(d) any material which have undergone any process towards the production or manufacture of narcotic drug residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily"
Furthermore, as per Article 117 (2) of Qanoon-e-Shahadat Order 1984 when a person is bound to prove the existence of any particular fact, it is said that the burden of proof's lies on that person. Similarly, as per article 119 of Qanoon-e-Shahadat 1984, the burden of proof always lies on that person, who wishes the court to believe and its existence.
56-C. The prosecution has succeeded to prove the misuse of 137 Kgs of "Ephedrine" by the defence, therefore, it was the duty of the defence to discharge the onus. To discharge the said onus, defence has produced some documents while stating that the company has manufactured 16586 Jars of having 1000 tablets of De-Asm in each Jar out of which 11586 Jars were sold to Arafat Traders Karachi and 2000, Jarrs were sold to AB Pharma and 3000 Jarrs were sold to Hammas Pharma. It is worth to mention here that documents prodpced by the defence are mainly invoices and bank statement of Gray's Pharmaceutical Company, Arafat Traders Karachi, AB Pharma and Hammas Pharma. Although learned defence counsel has perused so many bank statements of the Above stated companies but in the said statements nothing is there factory and by perusing of the same one can be compelled to draw the inference that entries of same are correct or not. In this case, the defence remained fail to produce the same due to the reason best known to him and here presumption can only be drawn that said gate register was in the possession of defence but same was not supporting the defence due to which same has not been produced before the court. Similarly, an inspection register (original) was also taken into possession by the ANF authorities and entries of same have not been denied by the defence. Perusal of same shows that factory was inspected by responsible officer randomly and inspecting officer has also checked / inspected the medicine being manufactured in the factory but perusal of inspection register Exh. PQ does not show the manufacturing of De-Asm tablets. Furthermore invoices produced by the defence are private documents and same requires the proof in a legal way as mentioned in QSO 1984. The defence has not opted to prove the said private documents while producing scriber of same, therefore, same invoices cannot be relied upon. However, for the safer administration of justice, this court has also taken pain to peruse the same and more than four documents have come into the notice of this court which has made it clear that defence version was an afterthought 4reel and the invoices were made anti-dated as it is mentioned in Exh.PFF/ 1- 30 that De-Asm tablets relating to batch X-86 was sold to Ali Traders, Irum Market by AB Pharm on 05.10.2010. Similarly, the invoices Exh. PHH 1/8 and 1/9 has made it clear that tablets of such batch i.e. De-Asm of batch X-086 were sold by Grays Pharmaceutical Company to AB Pharma company on 25.10.2010. Similarly as per defence version, De-Asm X-086 sold by AB Pharma to Al-Mansoor on 30.09.2010 as mentioned in 1-18 on 24.10.2010, Exh. PFF 1-19 on 16.10.2010. Similarly, as per defence version, 4000/- Jars of De- Asm tablets were returned from Arafat Traders Karachi to Grays Pharmaceutical Company and same are still lying in the stock of factory but perusal of same also shows that as per defence version some of the Jars returned from Arafat Traders Karachi were relating to batch X-086. It is unimaginable that medicine "De-Asm tablets" were sold by AB Pharma prior to purchase of same from factory of Grays Pharmaceutical Company and similarly the "De-Asm tablets" of batch X-086 were sold out to AB Pharma Rawalpindi but the same were sold out which were returned from Arafat Traders Karachi. This fact is also making it clear that defence version regarding the manufacturing of remaining "De-Asm tablets" and selling of same to AB Pharma, Hammas Pharma does not appeal to a man of a prudent mind being contrary and in such like circumstances, this court has no hesitation to hold that accused Muhammad Hanif Abbasi remained fail to prove his defence for the manufacturing and use of remaining quota of "Ephedrine" 137 Kgs.
56-D. Although it is forcefully argued by learned defence counsel that the accused Muhammad Hanif Abbasi cannot be convicted and sentenced under CNSA 1997 rather he can,4only be sentenced for violation of terms and conditions of his license issued by Ministry of Health Islamabad under Drugs Act ,1976 and Drug Rules 1976 but this court is of the humble view that the arguments of learned defence counsel does not seem to be correct as it has been proved from the above said discussion that 137 Kgs of "Ephedrine" was not used for the medicine purposes for the manufacturing of "De-Asm tablets" by Grays Pharmaceutical Company proprietor / co-partner of which is Muhammad Hanif Abbasi accused present in the court therefore while not using the same for manufacturing of medicine, the same remained in illegal possession of accused / co- owner of the factory therefore, now with the passage of long time, the possession of the same has become illegal. No doubt no controlled substance or "Ephedrine" has been recovered from the exclusive possession of the accused Muhammad Hanif Abbasi but as per law it is presumed that after purchasing the 500 Kgs of "Ephedrine" from the Alpha Chemical Lahore by using 363 KGs for the manufacture of "De-Asm tablets" and remaining 137 Kgs of "Ephedrine" is still in the possession of accused and it is the accused to give explanation for not using the same and the same is not duty of the prosecution and therefore illegal possession of 137 Kgs of "Ephedrine" has been established against Grays Pharmaceutical Company proprietor / co-owner of which is Muhammad Hanif Abbasi accused present in the court, therefore, he cannot only be convicted for violation of terms & conditions of his license but also for having 137 Kgs of "Ephedrine" in his illegal possession which has been defined in Section 6 of Control of Narcotics Substance Act 1997 and as per Sections 6 of the Control of Narcotics Substance Act 1997 no one is allowed to possess, distribute or deliver any narcotics drug, psychotropic substance or controlled substance on any terms whatsoever except for medical, scientific or industrial purposes and subject to such condition as may be specified CONTROL OF NARCOTIC SUBSTANCES ACT, 1997 or any other law for the time being in force. Similarly, as per Section 8 of CNSA 1997no one is permitted to organize and manage the narcotics drugs or controlled substances, or psychotropic substance. As the accused Muhammad Hanif Abbasi remained fail to used the 137 KGs of "Ephedrine" for the medical, scientific or industrial purposes whereas his possession has been established hence Sections 6 & 8 for keeping above said "Ephedrine" in1possession, deliver or manage or organize has been proved and same is punishable under section 9 of Control of Narcotics Substance Act 1997. Furthermore, for example, no driver can claim his exemption from his punishment if he would cause any injury to any person while driving She has destroyed any property of any person judge driving while saying that he has only violated the terms and conditions of his license. As per law, he can be punished for his illegal act committed by illegal driving as well as he can be punished while cancellation of his license for violating the terms and conditions of license. While following the said analogy this court is of the humble view that Muhammad Hanif Abbasi is not only liable to be punished for contravention of his license but also as under section 9 (c) of Control of Narcotics Substance Act 1997 as observed above.
56-E. Although the learned defence coun sel has forcefully argued that as per observation of Hon'able Lahore High Court, Rawalpindi Bench, Rawalpindi accused Muhammad Hanif Abbasi can only be convicted u/s 16 of Control of Narcotics Substance Act 1997 as the Hon'able Lahore High Court, Rawalpindi Bench Rawalpindi was pleased to hold while confirming his ad-interim pre-arrest bail as under;- "If the offence alleged against the petitioner in the FIR are seen there is no evidence available on record to connect him with the commission of offence falling under sections 6,7 and 8 of the Control of Narcotic Substances Act, 1997 violation of which is punishable under section 9 of the Act ibid. At the best, if allegations and evidence so far collected are seen the prosecution is trying to make out a case for violation of section 16 of the Act ibid which provision is hereby reproduced for facility of reference"
"Punishment for offence for which no punishment is provided.
Whoever contravenes any provision of this Act or any Rule or Order made, or any license, permit or authorization issued hereunder, for which no punishment is separately provided in this Chapter, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousands rupees, or with both."
So, if the offence under section 16 of the Control of Narcotic Substances Act, 1997 is seen it is only punishable upto imprisonment for one year or With fine to the extent of Rs 5,000/- or with both. Hence in the circumstances, it is bailable offence.
But in humble view of this court above said observation made by Hon'able Lahore High Court, Rawalpindi Bench Rawalpindi does not support the accused in view of observations made by apex court of Hon'ble Supreme Court of Pakistan while deciding cancellation petition No.502/12 & 60/13 titled as "The State Vs Muhammad Hanif Abbasi and others" as under: "We heard the learned Special Prosecutor appearing on behalf of the petitioner and the learned counsel representing the respondents, Muhammad Hanif Abbasi on the ground that the case against the accused does not apparently come within the scope of Section 6,7 and 8 and at best would fall under Section 16 of the Act, which carries maximum punishment of one year and is bailable. The learned Special Prosecutor took exception to this finding on the ground that the court had misdirected itself for bringing the case only under Section 9 of the Act whereas ephedrine would be covered by the definition of "narcotic drug", "psychotropic substance" and " controlled substance" as given in Section 2 of the Act; It may be stated that during investigation of the case F.I .R No.40 two other cases were registered, the present F.I. R No. 41 and another F.I .R No. 43 with the same allegation of the sale of Ephedrine instead of utilizing the same for manufacture of medicines. The prosecution had filed these petitions against the grant of bail by the High Court in the cases arising out of the three F.I.Rs, which were heard together. The High Court had in all these matters taken the view that the allegations in the F.I.Rs would bring cases against the respondents under section 16 rather than 6,7 and 8 read with Section 9 of the Act. we have dealt with this controversy in Criminal Petition No. 498 of 2012, 38,39 and 40 of 2013 arising out of case F.I.R No. 40 in the following manner:- "Taking up the point which is of grave concern to the prosecution regarding the observations made by the High Court with regard to the application of Section 16 of the Act rather than Sections 6,7,8 and 9, we have noted that indeed the high Court had focused mainly on this aspect while granting bail to the respondents. Section 6,7 and 8 prohibits possession, manufacture etc, import or export and trafficking or financing the trafficking of narcotic drugs, psychotropic substance or controlled substances as defined in Section 2(s)(za) and (k) of the Act respectively. Section 9 prescribes punishments for contravention of the said provisions depending upon the quantity of the narcotics. On the other hand Section 16 is residuary provision which provides for punishment for contravention of any provides for punishment for contravention of any provision of the Act, Rule or Order etc for which no punishment is separately provided. Obviously the Trial Court while framing the charge in case under the Act upon the material placed before it would first see whether the substance in question and the role of the accused would, prima facie, fall within the scope of Sections 6,7 and 8 of the Control of Narcotics Substances Act. At this stage it will not be proper to give any opinion, even tentatively, as to whether or not the allegation in the case would result in the charge under Section 6,7 and 8 read with Section 9 or Section 16 of the Act. Needless to state that the Trail Court while framing the charge or evaluating the evidence of the prosecution to determine guilt of the accused is to completely ignore any observation made by any Court while granting or refusing bail to an accused.
Having said that, we do understand the concern of the prosecution in the present case as the High Court's observation that case against the petitioner falls under Section 16 had been somewhat definitive. We trust that the Trial Court while framing the charge against the accused will remain uninfluenced by any observation made by the High Court in these bail matters."
56-F. Now coming to the case of remaining accused persons. accused persons namely Muhammad Basit Abbasi, Ahmed Bilal Ghazanfar Ali, Rana Mohsin Khurshid, Siraj Ahmed Abbasi, Nazakat Khan and Muhammad Nasir Khan. As per prosecution version, these accused persons have abetted, aided and remained associated with the main accused Muhammad Hanif Abbasi in the commission of offence but during whole of the evidence the prosecution has failed to produce on record any iota of evidence by which it can be said that when accused Muhammad Hanif Abbasi was illegally having possession, managing or delivering the 137 Kgs "Ephedrine", how any of the remaining accused has associated, aided or abetted to him. All the accus ed persons namely Muhammad Basit Abbasi, Ahmed Bilal Adil, Ghazanf ar Ali, Rana Mohsin Khurshid, Siraj Ahmed Abbasi, Nazakat Khan and Muhammad Nasir Khan were nominated in the FIR and no PW while appearing in witness box has stated in the examination in chiefs regarding any role of any of the above said accused regarding any abetting, association and aiding of main accused namely Muhammad Hanif Abbasi present in court. The accused Muhammad Basit Abbasi is real brother of accused Muhammad Hanif Abbasi and remaining accused persons namely Ahmed Bilal Adil, Ghazanfar Ali, Rana Mohsin Khurshid, Siraj Ahmed Abbasi, Nazakat Khan and Muhammad Nasir Khan have been stated his servant/working in the Grays Pharmaceutical have implicated. In the humble view of this court, legal material has come on the record by which they could be connected with the commi ssion of offence as stated by the prosecution. Therefore, in humble view of this court, prosecution remained fail to prove the case to the extent of remaining accused persons4Muhammad Basit Abbasi, Ahmed Bilal Adil, Ghazanfar Ali, Rana Mohsin Khurshid, Siraj Ahmed Abbasi, Nazakat Khan and Muhammad Nasir Khan beyond any reasonable doubt and they are entitled to acquittal while following the rule of abundant caution, they are entitled to get the benefit of doubt.
57. For what has been discussed above, accused namely Muhammad Basit Abbasi, Ahmed Bilal, Ghazanfar Ali, Rana Mohsin Khurshid, Siraj Ahmed Abbasi, Nazakat Khan and Muhammad Nasir Khan (whose attendance has been exempted and on his behalf Raja Muhammad Tariq, Advocate is present) are acquitted from the charges Accused Muhammad Basit Abbasi, Ahmed Bilal, Ghazanfar Ali, Rana Mohsin Khurshid, Siraj Ahmed Abbasi, Nazakat Khan are present in court on bail while accused Muhammad Nasir Khan, (whose attendance has already been exempted on his filing of an appli cation for performing of Hajj and on his behalf Raja Muhammad Tariq, Advocate is present) they are discharged from the liability of the bail bonds and their sureties stand discharged.
Personal belongings of all the accused persons (if any) be returned to them against a valid receipt.
58. As it has been established that Grays Pharmaceutical Company proprie tor and co-owner of which is Muhammad Hanif Abbasi has misused the 137 Kgs of "Ephedrine" therefore, he is convicted u/s 9 (c) of Control of Narcotics Substance Act 1997 and is sentenced to Life Imprisonment with fine of Rs, 10,00,000/- (Rupees one million) (while taking a lenient view as he is a partner/co-owner of the Grays Pharmaceutical and Mst. Razia was his co-partner) and in case of default in payment of fine, he shall further undergo 02 Years SI.
He is also hereby convicted u/s 16 Control of Narcotic Substances Act, 1997 and is sentenced for 01 Year and fine of Rs, 5000/- (Rupees five thousand only) and in default he further undergo SI for one month. The benefit of section 382-B code of criminal procedure is extended to the convict. Both the sentences shall run concurrently. The copy of this judgment be supplied to the convict free of cost. The convict namely Muhammad Hanif Abbasi is present in court on bail. He be taken into custody and be sent to District Jail, Rawalpindi alongwith warrants of sentence for execution of sentences. Copy of this judgment be also forwarded to the In-charge of prosecution as required u/s 373 Cr.P.C.
59. The case property i.e De-Asm Tablets are hereby confiscated in favour of the state and be dealt with in accordance with law after expiry of period / decision of appeal/ revision, if any.
60. SHO Police Station ANF RD North Rawalpindi is directed to comply with the directi on as mentioned on para 46 of this judgment. File be consigned to the record room after due completion.