By means of instant petition, filed in terms of Section 426 Cr.P.C., Muhammad Hanif Abbasi, the petitioner seeks suspension of his sentence and admitting him to bail, pending disposal of his criminal appeal.
2. We have considered the arguments of the learned counsel for the parties and perused the judgment.
3. The prosecution case against the petitioner was that he (the petitioner) availed 500 kilograms of Ephedrine for his firm Gray's Pharmaceutical and did not possess and use the same for industrial purposes rather the petitioner sold the same to drug smugglers and obtained illegal amount. Since this Court is not expected to appreciate the evidence deeply , so we consider the infirmities apparent on the face of the judgm ent. As far as the evidence of "sold" to the drug smugglers and obtaining illegal amount brought on record by the state is concerned, we find that the learned trial court in para No.55 of its judgment has mentioned that: "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 "Ephedrine" by Muhammad Hanif Abbasi to anyone else. "
The learned trial court in para No.56 of its judgment has mentioned that: "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 Pharm aceutical 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. "
4. As far as allegation that the petitioner has not manufactured the De-Asm tablets and misused the Ephedrine is concerned, the trial court relied upon the testimony of Muhammad Arif Mithani (PW-16) and Muhammad Idress Sheikh (PW-22) at its face needs serious consideration. The trial court observed that the petitioner legally used 363 kilograms Ephedrine, whereas, the prosecution proved the misuse of 137 kilograms Ephedrine. The testimony of Muhammad Arif Mithani (PW-16) and Muhammad Idrees Sheikh (PW-22) is in conflict with the prosecution case and requires serious consideration. The learned trial court in para No.56-A of its judgment has mentioned that: "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. As the same has been proved by implied admission of the defence, therefore, humble view of this Court, there is further no need to discuss the prosecution evidence. "
When confronted with above findings of the learned trial court, the learned Law Officer submitted that the petitioner was convicted on the basis of his statement made under section 342 Cr.P.C and the suggestion put by the defence on the Investigating Officer (PW-35), we have observed that the findings of the learned trial court in Para No.56-A are based on the report/observation made by the Investigating Officer (PW-35) during his cross examination that on the direction passed by the learned predecessor of the learned trial court he physically found 5100 Jaras containing 1000 tablets in each Jar which are lying in the Godown of Grays Pharmaceutical Company and the learned trial court observed that 336 Kgs ephedrine was legally used by the petitioner. This part of the deposition of the Investigating Officer (PW-35) needs consideration and re-appraisal of the testimony as same is against the prosecution case. The trial court convicted the petitioner for not utilizing of 137 kilograms Ephedrine and kept the same for long time in possession, which declared illegal. We find that the learned trial court in para No.56-D of its judgment has stated that: "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 it 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 of "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 as therefore illegal possession of 137 Kgs of "Ephedrine" has been established against Grays Pharmaceutical Company proprietor-co owner of which is Muhammad Hanif Abbsi accused present in the court. "
The learned trial court convicted the petitioner for illegally possessing ephedrine although admittedly that the same was not recovered from his possession. Admittedly, there was no allegation of illegal possession of ephedrine against the petitioner rather the case of the prosecution was that he secured from the Ministry of Health under a valid license through a valid quota, therefore, it sold out the same to drug paddlers and in this regard court observed that no iota of evidence has been brought on the record by the prosecution. Besides, it will be seen that if the logic of the petitioner's contention is carried to its fullest extent the accused could complain of prejudice because he was not told in the charge that he kept in possession for long time 137 kilograms Ephedrine, which is illegal.
5. The trial court observed that definition of Ephedrine has not been mentioned in the Control of Narcotic Substance Act, 1997 and has relied upon the printouts obtained from the website "https://erowid.org/archive/rhodium/chemistry/meth.hi-rp.html ." of 'Google Search' reflecting Methamphetamine Synthesis. The trial court opined in para No.56-D of its judgment has stated that: "In view of above, this court is of the humble view that the "Ephedrine" is Controlled Substance by which "METHAMPHET AMINE" can be prepared and the same i.e Methamphetamine does fall in the schedule of CONTROL OF NARCOTIC SUBST ANCE ACT, 1997. "
6. Learned Law Officer admitted that still Federal Government has not issued notification in terms of section 2 (q)
(ii) & (za) of the Control of Narcotic Substances Act, 1997 and for ready reference, they are reproduced as under:- 2-(q) "any other narcotic substance which the Federal Government may, by notification in the official Gazette made in pursuacne of recommendations of any International Convention or otherwise, declare to be a manufactured drug"
2-(za) "psychotropic substance" means the substances, specified in the Schedule to this Act and such substance as the Federal Government may, by notification in the official Gazette, declare to be a psychotropic substance."
On Court' s query , the learned Law Officer has failed to assist the Court on this point that whether any SOPs has issued by the Government of Pakistan regarding declaring this ephedrine with the contraband in the light of above mentioned provisions of law. It was not the case of the prosecution that from ephedrine the petitioner prepared "methamphetamine" and was seized from the possession of the petitioner . We are of the opinion that the prosecution has not established that the petitioner by misusing Ephedrine prepar ed Methamphetamine, this also requires serious consideration.
7. For what has been discussed above, we are of the opinion that the petitioner has successfully made out a case of suspension of sentence. Therefore, the petition is allowed and the sentence of the petitioner is suspended.
The petitioner is admitted to bail pending disposal of his appeal subject to furnishing bail bonds in the sum of Rs.50,00,000/-with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judl) of this Court. The petitioner shall, however, remain present in the Court on each and every date of hearing till the final decision of main appeal.