Aalia Neelum, J. Abid Hussain son of Mian Syed, Caste Mian, resident of Khair Abad Mohallah Tajabad, District Noshera, Province Sarhad and Naazar Hussain son of Edhi Gull, Caste Khattak, both resident of near Khair Abad, Village Mando Khail, District Noshera, Province Sarhad, the appellants were involved in case F.I.R. No.03-2009, dated 26.02.2009, offence under Section 9(C)/15 of The Control of Narcotic Subs tances Act, 1997, registered at Police Station, ANF, Faisalabad and were tried by the learned Additional Sessio ns Judge/Special Judge (CNS), Faisalabad. The learned trial court seized with the matter in terms of judgment dated 31.01.201 1, convicted the appellants under Section 9(C) of The Control of Narcotic Substances Act, 1997 and each of them was sentenced to undergo imprisonment for life with the direction to pay Rs.10,00,000/-each as fine and in case of default thereof, each of them would undergo simple imprisonment for six months. The appellants were further convicted under Section 15 of the Control of Narcotic Substances Act, 1997 and each of them was sentenced to suffer rigorous imprisonment for five years and both the sentences awarded to the appellants would run concurrently . The benefit of Section 382-B of Cr.P.C was also extended in favour of the appellants. The appellants have assailed their conviction through filing instant criminal appeal.
2. The prosecution story as alleged in the F.I.R. (Ex.PG) lodged by Jehangir Khan, Inspector (PW-4)-the complainant, is that on 25.02.2009, the high-ups of ANF received a secret information that Amir Jan, Rauf Faqir and Ijaz, residents of Peshawar are inter-provincial drug peddlers and about 04:00 A.M., their workers/agents namely Abid and Naazar were coming at Faisalabad through Motorway Bhera Inter change while having a huge quantity of narcotics in truck bearing registration No.E 1538/Peshawar in order to supply narcotics to their customers, whereupon a raiding team consisted of complainant (PW-4), Tanzeem Sarwar, SI (since given up PW), Muhammad Ilyas-Naib Subedar, Muhammad Ahsaan Azam, ASI, Zubair Ahmad, ASI, Zahoor-ul-Haq, Naik, Sher Muhammad-Lance Naik, Ghulam Murtaza-lance Naik, Muhammad Tahir-Lance Naik, Muhammad Yaqoob-Sepoy, Shakeel Ahmad-Sepoy, Muhammad Maqbool Constable, Muhammad Arshad-Constable, Shahid Iqbal Constable, Muhammad Naeem-Constable, Ahsaan Ahmad Constable, Jahangir Khan-Constable, Muhammad Younas-Naik, drivers-Muhammad Akbar, Muhammad Shahbaz, Muhammad Nawaz, Nasir Iqbal, Assistant Director, ANF under the supervision of Major Kamran Hashmi, Deputy Director was constituted. The raiding team reached the spot at 21:30 P.M and at about 22:30 P.M, a truck bearing registration No. E-1538/Peshawar stopped at refreshment area of Bhera, wherein the accused-Abid Hussain and Naazar Hussain were sitting, who were apprehended. During interrogation, the accused-Abid Hussain , driver , produced two packets of charas while the accused-Naazar Hussain produced one shopper of charas . Whereas on apercus search of the secret cavities of the cabin of driver and roof of the cabin found heavy quantit y of narcotics substance, whereupon due to non availability of measuring tools, insuf ficient light and prevailing circumstances, he (PW-4) brought the alleged truck to the police station, ANF, Faisalabad and during search of the truck, 243 packets of charas wrapped in foil packing were recovered from the secret cavity of roof of the cabin whereas two hundred forty three packets of charas were recovered from the secret cavities of the back wall of the cabin of driver by removing the screws of the wooden sheet. Total charas recovered from the accused persons was found 347 Kilograms, which was taken into possession by the complainant (PW-4) vide recovery memos (Ex.P A to Ex.PC). Out of the recovered substance, a sample of ten grams charas from each packet was separated for narcotic analy sis after embossing a seal of ANF/Faisalabad. The complainant (PW-4) chalked out FIR (Ex.PG) on the spot. Thereafter , the complainant (PW-4) being Investigating Officer prepared rough site plan of the place of recovery (Ex.PH) and recorded the statements of the prosecution witnesses under Section 161 of Cr .P.C.
3. Having found the accused persons Abid Hussain and Naazar Hussain guilty , the Investigating Officer (PW-4) prepared report under Section 173 Cr.P.C., while placing the names of the accused persons in Column No.3 of the Challan and sent the same to the court of competent jurisdiction.
4. The learned trial court formally charge sheeted the appellants on 23.10.2009, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as four (04) witnesses. Jehangir Khan, Inspector (PW-4) is the complainant as well as Investigating Officer whereas Muhammad Zubair, ASI (PW-3) is witness of the recovery.
5. On 17.02.2015, the learned Special Prosecutor for ANF gave up Tanzeem Sarwar , SI, PW being un-necessary and closed the prosecution evidence. The reports of the Chemical Examiner Punjab, Lahore were tendered as Ex.PK to Ex.PM.
6. The appellants were also examined unde r Section 342, Cr.P.C. wherein they opted not to lead defence evidence and also refused to appear their own witnesses in terms of Section 340 (2) Cr.P.C in disproof of the allegations levelled against them and while replying to a particular question that why this case was against them and why the PWs had deposed against them, the appellant No.1 (Abid Hussain) made following deposition:- "Case is false one against me. I was not arrested from Behra Interchange. The raiding party actually arrested Haji Abid and Rauf accused but PW-4 Jahangir Khan Inspector joined hands with them and substituted me with Abid son of un-known since not challaned. I am neither owner of the truck nor did I have any concern with the recovered items."
While replying to the particular question, the appellant No.2 (Naazar Hussain) made following deposition:- "Case is false one against me. PW-4 is complainant as well as Investigating officer of this case and other PWs are subordinates to him. All the prosecution witnesses deposed falsely just to corroborate the false story concocted by PW-4 Jehangir Khan. I was having no knowledge about availability of any narcotics in the truck neither I produced Charas (P-3) to any one. Unfortunately I am a poor person and I joined the duty as cleaner on the truck. On the fateful day with my co-accused who was driver of the truck at the rate of Rs.200/-per day. I have been roped in this case being the cleaner of the truck. Nothing was recovered from my possession or my pointing out."
7. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellants in the above stated terms.
8. We have heard the arguments advanced by the learned counsel for the appellan ts as well as the learned Special Prosecutor for ANF and have minutely perused the record available on the file.
9. For the purposes of this case, Jahangir Khan, Inspector (PW-4), deposed during court statement (PW-4) that due to odd hours and non-availability of proper lights and measuring tools they brought the truck at Police Station, ANF, Faisalabad. At Police Station the truck was thoroughly checked and on checking 100 packets of charas (P- 4/1-100) were recovered from the secret cavity of the driving cabin and 243 packets of charas (P-5/1-243) from the secret cavity of back wall of the driving cabin and body of the truck. Jahangir Khan, Inspector (PW-4), on receiving information from the high-ups, had reaso n to believe that charas, a narcotic drug, would be brought through truck No.E-1538- Peshawar to Faisalabad by accused-persons/appellants through Islamabad-Faisalabad Motor-way whereupon joint riding party was arranged consisting upon officials of Anti Narcotics Force of Police Stations Faisalabad and Lahore. Even then, Jehangir Khan, Inspector (PW-4) had not made any effort to secure the evidence. It can not be disputed that for holding of any search, the raiding party would have to make arrangements not only for a light and the like but also arrange measuring tools.
10. As far case of prosecution of inadequacy of light at the place of recovery is concerned, it is contended by PWs 3 and 4 categorically to the effect that Behra rest area on the motor-way is a busy place. It would be relevant to mention here that at Behra rest area on the motor-way there was/is sufficient arrangements of light. The evidence of aforesaid witnesses support the prosecution case but learned counsel for the appellant took us through different paragraphs of their deposition to create a doubt as the complaint and recovery memos were not prepared at the place of occurrence where the truck was initially intercepted and two packets each were got recovered by the appellants at the spot and instead it were prepared after the truck was brought at the A.N.F Police Station Faisalabad. The witnesses consistently supported the contents of the FIR (Ex.PG) that the truck was brought to the A.N.F Police Station Faisalabad and there Jahangir Khan, Inspector (PW-4) searched the truck and from the cavities recovered 343 packets of charas and found to be 343 Kilograms. It is contended by Jahangir Khan, Inspector (PW-4) that at the spot truck was checked generally and they were sure about the presence of charas in the secret cavities of driving cabin and body of truck. But truck was checked at Police Station and truck was searched by the officials of A.N.F. It needs no emphasis that search should be made at the spot and the samples from the recovered narcotics substance seized, must be drawn on the spot of recovery in the presence of the accused persons and a mention to this effect should invariably be made in the recovery memo drawn on the spot.
Even Jehangir Khan, Inspector (PW -4) deposed during cross-examination that:- "accused Abid produced me two packe ts of Chars at Behra and as per the routine packing/weight of one packet is supposed to be one K.G. so I mentioned weight two K.G in Ex-PG"
So, the complainant (PW-4) had not weighed the packets of charas allegedly recovered from the possession of the accused-Abid Hussain. It reveals that at the spot the raiding party had not recovered a single packet from the secret cavities of the truck. Muhammad Zubair A.S.I. (PW-3) deposed during cross-examination that; Three hours consumed for arrival back at police station from the place of arrest at first instance. The truck from the place of arrest was driven to police station by Shahbaz constable/driver and one guard was also sitted in the truck whereas accused persons were shifted to police station through Hiace Wagon in which we were also sitted; Jahangir Khan, Inspector (PW-4) depose d during cross-examination that; From the place of recovery we arrived back at police station within three hours. All recovery memos were prepared at police station after weighing and sampling which consumed four hours, after the arrival at police station; Admittedly , in the instant case Jahangir Khan, Inspector (PW-4) had not taken down the information in writing regarding interception of the truck and Abid accused-appellant got recovered one shopper bag of charas (P-2) from beneath the driving seat whereas Nazir Hussain accused-appellant got recovered one shopper bag of charas (P-3) from beneath the conductor seat. Second is that he (PW-4) should have sent forthwith a copy thereof to his immediate official superior. In this case Jahangir Khan, Inspector (PW-4) admitted during cross-examination that, "I myself chalked out formal FIR Ex-PG, carbon copy of which is before me and same bears my signature" It is prosecution case that in the instant case truck was intercepted by Jahangir Khan, Inspector (PW-4), he (PW-4) got recovered one packet each from the accused-appellants, generally checked the truck and he was sure about the presence of charas in the secret cavities of driving cabin and body of truck, Jahangir Khan, Inspector (PW-4) brought the packets of the charas and truck to the A.N.F. police station Faisalabad and then himself (PW-4) searched the truck and got recovered 343 packets and found to be 343 Kilograms of charas. Jahangir Khan, Inspector (PW-4) admitted during cross-examination that, "The recovered Charas was weighed at police station" Neither weight was taken on the spot of the contraband substance allegedly recovered from the accused persons nor any mention made in recovery memo that in whose custody said packets of charas remained from time of recovery till preparation of the recovery memo. Besides, Jahangir Khan, Inspector (PW-4) directly chalked out FIR (Exh.PG) at 07:00 a.m. on 26-02-2009 with delay of 8 hours 30 minutes. However, learned counsel for the A.N.F. contended that the action taken by Jahangir Khan, Inspector (PW-4) soon after interception of truck and apprehending accused persons-appellants he (PW-4) was not obliged to take down the information at the spot due to odd hours and people at the spot. We are unable to appreciate the argument because, in this case, Muhammad Zubair, A.S.I. (PW-3) deposed during cross-examination that:- "Some people attracted at the time of arrest and capturing of truck" Mere attraction of few people at the spot does not justify the act of the complainant of not searching the truck and weighing of the packets of charas at the spot. Jahangir Khan, Inspector (PW-4) could not justify taking away case property from the place of recovery, non preparing of recovery memos and complaint at the spot. We therefore, unhesitatingly hold that there was non-compliance of the provision of the Control of Narcotic Substances Act, 1997. We are unable to appreciate the argument because, in this case, PW-4 admitted that he proceeded on getting prior information from a high ups and the information was precisely. Whereupon raiding party was constituted consisting upon ANF officials of two ANF Police Stations. It is not possible in the presence of heavy police contingent for the people to interfere in the recovery proceedings. So, the prosecution failed to prove safe custody of the narcotics substance got recovered by the accused-appellants. This fact alone creates a ground to believe that the parcels of recovered charas (P-4/1-100 and P-5/1-243) were not kept in safe condition and the claim of the prosecution that the parcels of recovered charas (P-4/1 and P-5/1-243) were not tampered with is doubtful. The truck was driven by Shahbaz-Constable/driver. The prosecution has withheld best piece of evidence in the shape of statement of Shahbaz-Constable/driver. Even he was not shown as prosecution witness in the calendar of witnesses, which also creates doubt about the prosecution story.
11. There is a serious defect in the reports of the Chemical Analyst (Exh.PK, Exh.PL and Exh.PM) and it is that "report Form No and registered No" and "net weight and gross weight of the samples" were not mentioned therein. Besides, full protocols of the test are not supplied. The report is also not in the prescribed form and not fully answered. The report contains only the result of the test or analysis. When it does not state the protocols of the test applied, it cannot be said to be a report "in the prescribed form." The omission to state either the result of the test or the protocols of the test applied is a substantial omission which goes to the root of the existence of the report "with prescribed form". If the protocols of the test are not stated in the report, the report must be held to be not a report "in the prescribed form" within the meaning of Rule 6 of the Control of Narcotic Substances (Govt. Analysts) Rules, 2001 and cannot be treated as evidence of the facts stated therein.
12. There is another aspect of the case, to prove the nature of substance, the chemical analysis reports (Exh.PK, Exh.PL and Exh.PM) were relied upon by the prosecution. We are not in agreement with the learned counsel for the Anti Narcotic Force that in the instant case expert expressed his opinion after conducting the required tests and the same were mentioned on the back of the chemical examiner reports (Exh.PK, Exh.PL and Exh.PM). For the reasons that the statute insists on mentioning of the test applied for indication of the kind of contraband substance entire stuff analyzed. On perusal of the chemical examiner reports (Exh.PK, Exh.PL and Exh.PM) it reveals that Duquenois Levine test was applied and expert expressed his opinion on its basis that the sample is of charas.
Whereas, Duquenois Levine test is only used for detection of "drug" presence in sample but not nature or kind of "drug". For charas detection i.e. a resin of cannabis plant (cannabis saliva or canabis indica), the chemical reports (Exh.PK, Exh.PL and Exh.PM) showing Tetrahydrocannabinol (Charas) positive is required. Only Duquenois positive test does not substantiate charas confirmation. Vide reports (Exh.PK, Exh.PL and Exh.PM) Chemical Examiner opined that on analyzing the sample, the same gave positive test for Duquenois Levine which only shows that sample contain "drug" but not nature or kind of "drug". Therefore, in a nut-shell in a case of recovery of charas, presence of Tetrahydrocannabinol (THC) in a sample reveals that the same contains charas. Since, the patent infirmity has been noticed in the reports (Exh.PK, Exh.PL and Exh.PM) which is found to be fatal to the prosecution case. In such eventuality it is not possible to uphold and sustain the judgment of conviction and sentence against the appellant. Accordingly, the appellants deserve to be given benefit of doubt and findings in this regard are required to be set aside and the same are set aside.
13. For the reasons stated above, it is held that prosecution has not been able to prove its case beyond all reasonable doubts against the accused appellants, Abid Hussain and Naazar Hussain for the offence under Section 9(C) of The Control of Narcotic Substances Act, 1997. Thus, the findings of the learned Additional Sessions Judge/Special Judge (CNS), Faisalabad qua conviction of the appellants-Abid Hussain and Naazar Hussain for the above said offence are liable to be set aside and the same are set aside and as a consequence whereof, the appeal No. 70-J of 2011 is accepted and the appellants-Abid Hussain and Naazar Hussain are ordered to be acquitted of the charge in case F.I.R. No.03 2009, dated 26.02.2009, offence under Section 9(C)/15 of The Control of Narcotic Substances Act, 1997, registered at Police Station, ANF, Faisalabad The appellants- Abid Hussain and Naazar Hussain are ordered to be released forthwith from Jail, if not required in any other case.