1. Tariq Saleem Sheikh, J.--By this consolidated judgment we propose to decide Crl. Appeal Nos. 49/2019 and 158/2019 as both these matters arise from judgment 1.2.2019 passed by the learned Additional Sessions Judge, Multan, in case FIR No. 1/2016 dated 2.1.2016 registered at Police Station ANF, Multan for an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 (the "Act").
2. Brief facts of the case are that on 2.1.2016 the ANF high-ups received a secret information that Muhammad Yaseen, Muhammad Ramzan and Muhammad Saleem Akhtar (the Appellants) were coming from Peshawar to Multan on Vehicle No. LEC-7205 for supply of narcotics to their agents. Thereupon a raiding party was constituted consisting of Complainant Muhammad Shafique Rana/SI and other officials under the supervision of Muhammad Suleman Hundal/AD, Incharge Policc Station ANF, Multan. At about 6:00 p.m., they along with the informer reached Kayanpur Chowk Old Shujabad Road near PSO petrol pump in plain clothes and set up a picket there. At about 7:00 p.m., the suspect car (Toyota Probox) with three persons on board was seen coming from side of Hassan Sawali Chowk. On the pointing out of the informer it was sighalled to stop and the Complainant and his team nabbed all the three persons on board. The driver told his name as Muhammad Yaseen whereas the one who was occupying the front seat identified himself as Muhammad Ramzan. The third one who was sitting on the rear seat disclosed his name as Muhammad Saleem Akhtar. The Complainant interrogated. Muhammad Yaseen who disclosed that there were narcotics in the secret cavities of the dickey of the car and took out 10 packets each weighing 1200 grams (total: 12 kilograms) from the rear bumper thereof. Muhammad Shafique Rana/SI drew 10 grams from every packet and prepared 10 scaled sample parcels for chemical analysis and secured the remaining bulk P-1 in a separate plastic bag and seized all the 11 parcels along with car P-2 knd its key P-3 vide Recovery Memo. Exh.PB, Muhammad Ramzan got recovered eight packets containing 1200 grams charas each (total: 9.600 kilograms) concealed in the cavities of driver seat and his own seat. Muhammad Shafique Rana/SI separated 10 grams from every packet, prepared eight sealed sample parcels for chemical analysis, secured the remainder P-4 in a separate plastic bag and seized all the nine parcels vide Recovery Memo. Exh.PC. Muhammad Saleem Akhtar also took out 10 packets containing 1200 grams charas each (total: 12 kilograms) from the secret cavities of the rear seat. The Complainant drew 10 grams each out of these packets as well and prepared 10 sealed sample parcels for the chemical analysis. He then preserved rest of the recovered substance in a separate plastic bag end secured all the 11 parcels vide Recovery Memo. Exh.PD. During personal search, CNIC P-6, mobile phone P-7, driving licence P-8, cash amount of Rs. 1000/- P-9, visiting cards P-10 were recovered from Muhammad Saleem Akhtar. Cash amounting to Rs. 800/- P-11, visiting cards P-12 and mobile phone P-13 were recovered from Muhammad Ramzan which the Complainant took into possession vide Recovery Memos Exh.PE & Exh,PF. On Muhammad Yasin's search, CNIC P-14, driving licence P-15, mobile phone P-16, cash amount of Rs. 1500/- P-17, purse P-18 and some visiting cards P-19 were recovered which Muhammad Shafique Rana/SI seized vide Recovery Memo. Exh.PG, At 9:30 p.m. the Complainant drafted complaint (Exh.PA/1) and despatched it to the police station through Muhammad Nawaz/ASI on the basis of which Moharrai Sajjad Haider/HC (PW-2) registered FIR No. 1/2016 (Exh.PA).
2. After due investigation report under Section 173, Cr.P.C. was prepared and submitted to the Court. On 13.11.2017, the learned trial Court indicted the Appellants who pleaded not guilty and claimed trial.. In order to prove its case the prosecution produced four witnesses, namely, Jaffar Abbas/Constable (PW-1), Sajjad Haider/HC (PW-2), Muhammad Shafique Rana/SI (PW-3) and Muhammad Gul/Constable (PW-4). In documentary evidence, the prosecution inter alia produced reports of the National Institute of Health (NIH) as Exh.PL/1, Exh.PL/2, Exh.PM, Exh.PM/1, Exh.PN, Exh.PN/1.
3. After the close of prosecution evidence the learned trial Court recorded the statements of the Appellants under Section 342, Cr.P.C. and confronted them with all the incriminating material that was brought against them during the trial. They refuted it and professed innocence. When they were asked as to why this case had been registered and why the PWs had deposed against him they replied as follows: Muhammad Yaseen: "The story of the prosecution is fake, fictitious and concocted one. I have no shady past to involve in such like heinous offences. Nothing was recovered from my possession. It is fact that I along with Saleem Akhtar came to the house of Yahya, real uncle of Ramzan accused for delivery of parcel in the name of Hafiz Rashid Iqbal (the cousin of Ramzan accused), who lived in Saudi Arabia. I have visiting relationship with Hafiz Rashid Iqbal and on his demand, some desired articles were handed over to Yahya who also going to Saudi Arabia for performing Umrah. When I along with Saleem Akhtar accused reached there, some persons in civil dresses entered forcibly into the house of Yahya and Muhammad Ramzan, on seeing, I and Saleem Akhtar accused quarreled with the said persons, later on it came to knowledge that the said persons belongs to ANF authority. They apprehended me and Saleem Akhtar accused and went to the police station and then they implicated in this fake, false and fictitious case. I was working as driver in Michel's centre, and then became a driver of Jawad Ahmad Singer. My wife died in the year 2015. I have three minor children and I am the lonely person to earn. All the PWs are police officials and subordinates to the Complainant, who deposed against me on asking of their high ups with a fear that if they did not depose in line then they will be censure. It is also fact that Complainant Muhammad Shafique Rana was not present at the place of occurrence on the said date and he was present in Lahore on the said date, being the SHO he is not competent to conduct the investigation in the light of Police Orders, 2002."
4. Muhammad Saleem Akhtar: "The story of the prosecution is fake, fictitious and concocted one. I have no shady past to involve in such like heinous offences. Nothing was recovered from my possession. It is fact that I along' with Muhammad Yaseen came to the house of Yahya, real uncle of Ramzan accused for delivery of parcel in the name of Hafiz Rashid Iqbal (the cousin of Ramzan accused), who lived in Saudi Arabia. I have visiting relationship with Hafiz Rashid Iqbal and on his demand, some desired articles were handed over to Yahya who also going to Saudi Arabia for performing Umrah. When I along with Muhammad Yaseen accused reached there, some persons in civil dresses entered forcibly into the house of Yahya and Muhammad Ramzan, on seeing, I and Muhammad Yaseen accused quarreled with the said persons, later on it came to knowledge that .the said persons belongs to ANF authority. They apprehended me and Muhammad Yaseen accused and went to the police station and then they implicated in this fake, false and fictitious case. I was working as driver with a lawyer in Lahore. I am the lonely person to earn. All the PWs are police officials and subordinates to the Complainant, who deposed against me on asking of their high ups with a fear that if they did not depose in line then they will be censure. It is also fact that Complainant Muhammad Shafique Rana was not present at the place of occurrence on the said date and he was present in Lahore on the said date, being the SHO he is not competent to conduct the investigation in the light of Police Orders, 2002."
5. Muhammad Ramzan: "I was arrested from my house prior to registration of criminal case and later on I was involved in this case. My uncle (Chacha) namely, Ghulam Nabi was murdered and FIR No. 275/07 (Exh.DC) under Section. 302/34, PPC, Police Station Cantt. Multan was got registered. The accused persons namely, Rafiq, Farooq and Iqbal are the nephew/Bhania of Jumma sop of Siddique, who is working as spy/informer of the police as well as ANF. Jumma remained in contact with Muhammad Gulzar/PW-4 on the day of the alleged recovery. ANF authorities just to show their progress and in league with said Jumma son of Siddique, involved me in this case falsely. Jaffar Abbas conslable/PW-1, who is mentioned as recovery witness in Exh.PA, Exh.PB, Exh.PC, Exh.PD, Exh.PE, Exh.PF, and Exh.PG. In his examination in chief as PW-1 and in his statement Exh.DA he did not state a single word regarding the alleged recoveries. Muhammad Shafique Rana SI/IO/Complainant was not present at Multan at the time of alleged recovery. Mobile phone No. 0300-4841202 in his use and also issued in his name from mobilink.
6. As per call details report (CDR), PW-3 was present in Lahore from 31.12.2015, 4:26:09 p.m, to 3.1.2016, 3:01:20 a.m. After this he reached at Multan on 3.1.2016 at 09:08:39 a.m. Muhammad Gulzar PW-4 using Mobile No. 0303-2623240 and according to CDR he was present in Garden Town at the time of alleged recovery, Mauza Kayanpur, Chowk Old Shujabad Road which is situated at seven kilometer from Garden Town, wherein building of ANF police station is situated. Jumma son of Siddique, the alleged spy/informer using Mobile No. 0304-5516244 remained in connect with Muhammad Gulzar PW-4. According to the CDR of PW-4 he remained in connect with Jumma and CDR showing outgoing and incoming calls between them. Muhammad Shafique Rana SI/10/Complainant himself started investigation of this case without any proper and authorize approval even Muhammad Suleman Hundle AD/Incharge police Station ANF remained present according to Exh.PA but he did not cite as PW in this case. PW-3 was not cross-examined on behalf of me through my counsel, so said evidence cannot be read against me. The difference in weight of samples mentioned in complaint Exh.PA and NIH reports, Exh.PL/1 and PExh.PL/2 casts serious doubt in prosecution case.
7. Applications for summoning of CDR was dismissed by this Court and in Criminal Appeal No. 799/2018, the Division Bench of Hon'ble Lahore High Court, Multan Bench, Multan observed that available CDRs in criminal appeals can be produced at the time of recording of statements of accused. So CDR of PW-3 Mobile No. 0300- 4841202 is being produced as Exh.DD, CDR of PW-4 Mobile No. 0303-2623240 is being produced as Exh.DE (consists of two pages). All the four prosecution witnesses are officials of ANF and deposed falsely against me being subordinate."
8. The Appellants did not opt to make-statements on oath under Section 340(2), Cr.P.C. but they opted to produce evidence in defence. Muhammad Ramzan tendered in evidence application filed by Mst. Haseena Bibi (Mark-DA), copy of petition under Section 22-A, Cr.P.C. titled Mst. Haseena Bibi v. Chief Officer ANF etc. (Mark-DB), copy of parawise comments submitted by police station ANF dated 16.4.2016 (Mark-DC ), copy of order dated 3.5.2016 passed by Ex-Of ficio Justice of Peace (Mark-DC/1), photocopy of CMC of Haseena Bibi daughter of Noor Muhammad (Mark-DD), copy of registration record of Mobile Phone No. 0300-4841202 of Muhammad Shafique Rana Complainant/PW -3 (Mark-DE/1-3), certified copy of W. P No. 8179/16 titled Mst. Haseena Bibi v. Capt. Sultan ANF etc." (Exh.DF), certified copy of order dated 1.6.2016 (Exh.DF/1), copy of postal receipt dated 13.05.2016 (Exh.DG), copy of postal receipt dated 16.5.2016 (Exh.DH), certified copy of memo. of Crl. Appeal No. 799/2018 (Exh.DJ), certified copy of order 29.10.2018 (Exh.DJ/1). On the other hand, Muhammad Yaseen produced.certified copy of Criminal Appeal No. 815/2018 (Exh.DK) with order dated 27.9.2018 (Exh.DK/1).
9. On the conclusion of trial, vide impugned judgment dated 1.2.2019, the learned trial Court convicted and sentenced the Appellants as under: Muhammad Yaseen: Convicted under Section 9(c) of the Act and sentenced to imprisonment for life with fine of Rs. 1,0,0,000/- and in default of thereof to undergo simple imprisonment for a further period of one year .
10. Muhammad Saleem Akhtar: Convicted under Section 9(c) of the Act and sentenced to imprisonment for life with fine of Rs. 1,00,000/- and in thereof to undergo simple imprisonment for a further period of one year . iii) Muhammad Ramzan: Convicted under Section 9(c) of the Act arid sentenced to rigorous imprisonment for 12 years and six months with fine of Rs.
11. 60,000/-and in default thereof to undergo simple imprisonment for a further period of nine months.
12. However, benefit of Section 382-R, Cr.P.C. was extended to them.
13. Muhammad Yaseen and Muhammad Saleem Akhtar have filed Crl. Appeal No. 49/2019 while Muhammad Ramzan has preferred Crl.
14. Appeal No. 158/2019 before this Court against the aforesaid judgment.
15. The learned counsel for the. Appellants contended that the prosecution had miserably failed to prove the charge against the Appellants. There was gross misreading/non-reading of evidence by the learned trial Court which had caused serious miscarriage of justice. They argued that, firstly, the alleged recovery was made at a thoroughfare but no independent witness was cited by the prosecution. Secondly, no contraband was recovered from the Appellants and the police had foisted charas on them. Thirdly, the safe custody and transmission of the case property was not proved by the prosecution which uprooted the prosecution case. Lastly, the reports of NIH Exh.PL/1, Exh.PL/2, Exh.PM, Exh.PM/1, Exh.PN, ExH.PN/1 in respect of the samples did not meet the requirement of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 which is mandatory. The learned counsel prayed that these appeals may be accepted and the Appellants be acquitted.
16. On the other hand, the learned Special Prosecutor for ANF opposed these appeals. He contended that none of the witnesses had any,or any animosity against the Appellants. They could not plant such a huge quantity of contraband on them on their own. He maintained that the reports of NIH Exh.PL/1, Exh.PL/2, Exh.PM, Exh.PM/1, Exh.PN, Exh.PN/1 in respect of the recovered material were positive which reinforced the prosecution case. He concluded his arguments with the submission that since the prosecution had proved its case beyond reasonable doubt, these appeals may be dismissed.
17. Arguments heard. Record perused.
18. According to the prosecution, the Appellants were apprehended from Kayanpur Chowk Old Shujabad Road near PSO Petrol Pump and 28 packets of charas weighing 33.600 kilograms (12 kilograms each from Muhammad Yaseen, Muhammad Saleem Akhter and 9.600 kilograms from Muhammad Ramzan) were recovered. Out of the recovered charas the Complainant drew 10 grams from each packet and prepared 28 sealed samples for chemical analysis and preserved the remaining bulks through three separate plastic bags. The prosecution produced Muhammad Shafique Rana/SI (PW-3) and Muhammad Gulzar/Constable (PW-4) to prove the said recovery.
19. However, conviction cannot be recorded against the Appellants on the basis of their testimony unless they are supported by positive reports of the Government Analyst drawn in accordance with law. The reports of the NIH Exh.PL/1, Exh.PL/2, Exh.PM, Exh.PM/1, Exh.PN, Exh.PN/1 are deficient in material particulars. They are consolidated reports of three to five samples and are not in the prescribed form. Further, they do not contain details of the protocols applied. In Ameer Zeb v. The State (PLD 2012 SC 380) the Hon'ble Supreme Court of Pakistan held that samples must be taken from every packet, cake or slab and separately analyzed. The relevant excerpt is reproduced hereunder: "As is evident from the resume of the precedent cases mentioned above, the trend of authority of this Court leans overwhelmingly in favour of obtaining and sending for chemical analysis a separate sample of every separate packet/cake/slab of the substance allegedly recovered from an accused person's possession and for its separate analysis by the Chemical Examiner in order to confirm and establish beyond doubt that the entire quantity of the allegedly recovered substance was indeed narcotic substance. It is our considered opinion that a sample taken of a recovered substance mast be a representative sample of the entire substance recovered and if no sample is taken from any particular packet/cake/slab or if different samples taken from different packets/cakes/slabs are not kept separately for their separate analysis by the Chemical Examiner then the sample would not be a representative sample and it would be unsafe to rely on the mere word of mouth of the prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance." (emphasis added)
20. In The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ), the Hon'ble Supreme Court of Pakistan has held that Rule 6 (ibid), is mandatory to the extent that full protoco ls ought to be mentioned in the report of the Chemical Examiner and its non-compliance renders the report inconclusive and unreliable.
21. Relevant excerpt is reproduced hereunder: "It [Rule 6] provides that the Report of the Government Analyst, after the test and analysis, is to furnish the result together with full protocols of the test applied. The accuracy of test and analysis and the correct application of the full protocols alone can determine if the recovered substance is a narcotic drug or a psychotropic or controlled substance. "Protocol" means an explicit, detailed plan of an experiment, procedure or test or a precise step-by-step description of a test, including the listing of all necessary reagents and all criteria and procedures for the evaluation of the test data. Rule 6 requires that full protocols of the test applied be part of the Report of the Government Analyst. Every test has its protocols, which are internationally recognized and a test without the observance of its protocols has no sanctity. "Full Protocols" include a description of each and every step employed by the Government Analyst through the course if conducting, a test. Hence, the Report under Rule 6 must specify every test applied for the determination of the seized substances with the full protocols adopted to conduct such tests."
13. In Khair -ul-Bashar v . The State (2019 SCMR 930 ), the apex Court further explained: "At the very outset we have noticed that the Report of the Punjab Forensic Agency dated 18.02.2016 is deficient in material particulars, i.e. while it mentions the names of the three tests performed, it does not provide results of these tests (except a consolidated result) and there is no mention of the test protocols applied in carrying out the said tests. In State v. Imam Bakhsh (2018 SCMR 2039) while discussing Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 ("Rules") this Court held that the information required under the said Rule is mandatory. Hence, the Report of the Government Analyst, prepared in consequence of Rule 6, must provide for (i) tests and analysis of the alleged drug (ii) the results of the test(s) carried out and (iii) the test protocols applied to carry out these tests. These three elements form the fundamental and the core elements of a valid Report prepared by a Government Analyst. Non-compliance of Rule 6 and absence of any of these mandatory elements/requirements frustrates the purpose and object of the Act thereby diminishing the reliability and evidentiary value of the Report ... Section 36(1) of the Act also mandates that the Report must be in the prescribed form. This Court, in Ikramullah, while discussing the scope of Rule 6 of the Rules held that "... a complete mechanism is to be adopted by the Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to the necessary protocols and mentioning the tests applied and their results ... Section 36 of Control of Narcotic Substances Act, 1997 requires a Government Analyst to whom a sample of recovered substance is sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in "the prescribed form" and, thus if the report prepared by him is not prepared in the prescribed manner then it may not qualify to be called a report in the context of Section 36 of the Control of Narcotic Substances Act, 1997 so as to be treated as a "conclusive" proof of recovery of narcotic substance from an ' accused person."
22. In view of the fact that reliable reports of the Government Analyst are not available to support the evidence of recovery furnished by Complainant Muhammad Shafique Rana/SI (PW-3) and Muhammad Gulzar/Constable (PW- 4), conviction of the Appellants cannot be sustained.
23. In the result, we accept Crl. Appeals Nos. 49/2019 and 158/2019 and set aside the impugned judgment 1.2.2019.
24. The Appellants are acquitted of the charge. The shall be released from jail forthwith if not required in any other criminal case..