CH. ABDUL AZIZ, J. Muhammad Shahid (appellant) involved in case FIR No.99/2019 dated 08.05.2019 registered under Sections 9 (c), 15 & 16 of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "CNS Act, 1997") at Police Station ANF Rawalpindi, was tried by learned Sessions Judge/Judge Special Court (CNS), Rawalpindi. Trial court vide judgment dated 17.03.2020 proceeded to convict and sentence the appellant in the following terms:- "Under section 9 (c) of CNS Act, 1997 to suffer imprisonment for life with fine of Rs.10,00,000/- and in default whereof to further undergo SI for two years. Benefit of section 382-B Cr.P.C. was also extended to the appellant.
Challenging his conviction and sentence, appellant filed the instant appeal.
2. Succinctly stated the case of the prosecution as per contents of the FIR (Exh.PD/1) is to the effect that on 06.05.2019 at about 5:30 p.m. Qaisar Rasool SI (PW.5) was present in police station 'ANF Rawalpindi, when he received secret information about the presence of Muhammad Shahid (appellant) at Jandugaran road. Pind Nosherian Sang Jani, Taxila with huge quantity of sulfuric acid; that upon the receipt of this information, he along with constables, namely, Muhammad Anees, Aftab Hussain, Arshad Mehmood, Farooq and. Mazhar Ali while boarding two official vehicles being driven by constables Irfan Mehmood and Muhammad Ashfaq raided the afore-said place at about 7:00 p.m; that on pointing out of the informer Muhammad Shahid (appellant) sitting on the driving seat of Suzuki pick-up bearing registration No.LOT-3256 parked near a shop. was apprehended; that Muhammad Shahid (appellant) during interrogation disclosed about cans of sulfuric acid in Suzuki Pick-up as well as inside the shop; that 10 cans of sulfuric acid were secured from Suzuki pick-up; that the appellant then brought out a key from his pocket and opened the shop from where 130 cans of sulfuric acid were recovered; that each can was containing 45- kilograms of sulfuric acid and its total weight was found to be 6300 kilograms; that Qaiser Rasool SI separated 10-grams each from each can for, chemical analysis. Thereafter, he drafted complaint (Exh.PD) and forwarded it to the police station through Irfan Mehmood Constable for the registration of formal FIR.
3. The matter after investigation was placed before the trial court where prosecution in order to prove its case against the appellant produced six PWs, namely, Azhar Rehman HC (PW.1), who was serving as Moharrar/Station Clerk at the eventful time, Altaf Hussain Constable (PW.2) who after the receipt of samples parcels from Qaiser Rasool SI deposited the same in the office of NIH Islamabad, Muhammad Ilyas (PW.3) & Khawar Javed (PW.4), who are4he ones whom appellant used to sell sulfuric acid, Qaisar Rasool SI (PW.5) & Mazhar Ali Constable (PW.6) who are witnesses of recovery. After the conclusion of prosecution evidence, the learned trial court also examined the appellant under section 342, Cr.P.C. during which he was asked the questions arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and false involvement in the case. Appellant did not make statement under section 340(2) of Cr.P.C., however produced copy of Writ Petition No.1661 of 2019 (Exh.DA/1-5) and copy of order sheet (Exh.DB/1-3) in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant appeal.
4. Learned counsel for the appellant submitted that from law, and facts no offence under Section 9 of CNS Act, 1997 is made out; that sulfuric acid is an industrial chemical, thus does not come within the purview of narcotic drug, psychotropic substance or controlled substance; that there is no restriction to purchase. 10-tons of sulfuric acid in a year and this fact was even admitted by PW.5 Qaiser Rasool. SI; that even otherwise, prosecution miserably failed to connect the appellant with the commission of alleged crime; that the prosecution failed to establish nexus between appellant and Suzuki pick up vehicle from which the acid was recovered; that similarly, no nexus was established between appellant and the shop wherefrom the remaining quantity of acid was taken into possession; that PW.6 Mazhar Ali Constable was a recovery witness, however in his statement the recovered substance was not exhibited and that though prosecution badly failed to prove its case but even then the appellant was handed down guilty verdict. With these submissions, learned counsel urged that the conviction awarded to the appellant be set-aside.
5. On the other hand, learned law officer came forward with the submissions that approximately 6300-kilograms of sulfuric acid was recovered from the appellant which according to the Control of Narcotic Substances Rules, 2001 is a controlled chemical, thus gives rise to an offence under Section 9 of CNS Act, 1997; that the guilt of appellant was established during trial through confidence inspiring evidence of prosecution witnesses; that the vehicle in which part of the recovered consignment was placed was also taken into possession; that the appellant was the only person who was sitting in the vehicle at the time of recovery; that the remaining quantity was recovered from a shop which belongs to none other than the appellant and that since prosecution proved its case beyond any shadow of doubt, thus the appellant was rightly convicted in the case.
Lastly, learned law officer argued that the instant appeal against conviction merits no acceptance, thus is to be dismissed.
6. Arguments heard. Record perused.
7. It is discernable from the scrutiny of record that Muhammad Shahid (appellant) stands convicted in the case after having been found guilty of possessing 6300-kilograms of sulfuric acid.
As per accusations embodied in crime report (Exh.PD/1), on 06.05.2019 at about, 5:30 p.m. Qaiser Rasool SI (PW.5) along with other officials of ANF was in the police station and received information about the presence of Shahid in vicinity known as Pind Nosherian, Taxila along with sizeable quantity of sulfuric acid. Upon receipt of this information, Qaiser Rasool SI (PW.5) along with other ANF personnel reached the spot and apprehended Muhammad Shahid (appellant) while sitting in a Suzuki Pick-up No.LOT/3256 (P.3) parked on road-side. Ten cans were secured from the rear portion of Suzuki Pick-up, whereas 130 more were recovered from a shop upon the disclosure and pointing out of the appellant. All these cans were containing sulfuric acid, total weight of which was 6300-kilograms.
8. We consider it to be in fitness of things to mention here that element of stringency spells out from CNS Act, 1997, as is evident from prohibition of bail under Section 51, power of police to enter and search premises without warrant under Section 21, exclusion of 103 Cr.P.C. in recovery proceedings, competency of official witnesses in search/seizure and from the presumption to be drawn under Section 29. The legislative strictness leaves little room for the defence to dislodge the case of prosecution in CNS Act, 1997. There is no cavil to the proposition that if menace of drugs is not catered, it is destined to destroy our coming generations as well as the social fabric. At the same time, we are not oblivious of the fact that often an innocent person is grilled in a narcotic case either by mistake or with some sinister design. To achieve the ultimate goal of safe administration of justice, the statutory stringency of CNS Act, 1997 is to be reciprocated through circumspective appraisal of prosecution evidence. The emergence of reasonable doubt from the review of prosecution case must entail consequences of an acquittal. On the same premises, we would like to refer an observation of Larger Bench of Hon'ble Apex Court expressed in Ameer Zeb v.
The State (PLD 2012 Supreme Court 380) which for reference sake is mentioned hereunder:--- "We reverently and respectively tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: the harsher the sentence the stricter the standard of proof."
9. In the aftermath of above discussion, we have pondered in-depth upon the prosecution evidence. Firstly, it is noticed that appellant was statedly apprehended while sitting in a Suzuki Pick- up parked on the roadside. As mentioned above, 10-cans of sulfuric and were recovered from the vehicle, thus for proving its possession a strong and unambiguous nexus was required to be established between the appellant and the Suzuki Pick-up. It goes without saying that prosecution has to prove every bit of its case and as a necessary corollary, a nexus between the appellant and the vehicle was incumbently required to be proved during trial by none other than the prosecution.
In this regard, it is noticed that Qaiser Rasool SI (PW.5) candidly conceded that as per record the vehicle was registered in the name of Taimoor, but despite this fact no efforts were made to associate him in investigation on the sole pretext that his address was incomplete. Needless to mention here that registration number LOT-3256 was displayed upon the vehicle and it was not a hard nut to crack for the investigator to obtain complete particulars of its owner from Excise Office, Lahore. Strangely, such an important aspect was left unattended by Qaiser Rasool SI (PW.5) which culminated in failure of prosecution to link the appellant beyond shred of any doubt with the vehicle. Even otherwise, we anxiously noticed that the recovery witnesses, namely, Qaiser Rasool SI and Mazhar Ali Constable (PW.5 & PW.6) simply deposed that appellant was sitting in Suzuki Pick- up without specifying the driving or front seat. The two witnesses omitted even to mention that the appellant was seated in the cabin of the vehicle or at its rear portion. The foregoing shortcomings gained importance when seen in the context that the vehicle was parked on the road side. The failure of prosecution in establishing nexus between the accused and vehicle in such like cases was described by the Hon'ble Supreme Court of Pakistan, sufficient ground for acquittal in case reported as Qaisarullah and others v. The State (2009 SCMR 579) in the following words:-- "The prosecution failed to prove through convincing evidence that Abdul Wali had exclusive knowledge of the concealment of narcotics in the car which neither belonged nor was being driven by him. Abdul Wali, as noted above was employee of Pakistan Air Force who lived and worked at different place than that of Qaisarullah. No link between the two was established on the record of the case."
If any further reference in this regard is needed that can be made to the cases reported as Ayaz alias hnran v. The State (2021 YLR 1613) and Ilabib-ur-Rehman v. The State (2020 PCr.LJ 1688).
10. We have also given considered thought to the recovery of remaining 130-cans of sulfuric acid secured on the pointing out of appellant from a shop. For providing credibility to the recovery effected from shop, it was obligatory for prosecution to prove that appellant was in exclusive and absolute possession of the shop and success in this respect would have established a strong connection between the appellant and recovered substance. During probe of the case, no documentary evidence was secured by the ANF to prove either the ownership of appellant regarding this shop or his actual/physical possession. During trial, Qaiser Rasool SI (PW.5) was cross-examined on this point and he described the owner of the shop as Umair to whom he never associated in investigation and was not even cited as witness in the case. No endeavour, even frail in nature, was made to prove that appellant was tenant in the premises or was having control of the shop in some other capacity. We are mindful of the fact that the expression "possession" denotes the power of a person to control the premises to the exclusion of all others and for this reason it is a factor to be proved in cases of CNS Act, 1997. We. have also eloquently scanned the entire record for ascertaining the link of appellant with the shop but found it to be in everlasting silence. From the foregoing facts, we are leaned to hold that prosecution defaulted to connect the appellant with the shop. Such failure of prosecution by no stretch can be ignored and bears adverse implications benefiting the appellant. As a necessary consequence, a doubt emerges about the actual owner of the recovered substance. In arriving at such conclusion, we are enlightened from the observation given in case reported as Muhammad Imran v. The State (2011 SCMR 1954) which is as under:--- "P.Ws.6 and 7 admitted during cross-examination that neither oral nor documentary evidence was available against the appellant regarding the ownership of the place of recovery (shop) and nothing was recovered at his pointation. Besides, the motorcycle and the lock and keys of the shop were not recovered, which creates serious doubts in the prosecution case."
11. After dilating upon the very genesis of the prosecution case, we feel no hesitation to hold that it is preposterous and self-contradictory in nature. On one hand, it is vociferously canvassed before us that sulfuric acid comes within the prohibition contained in Section 6 of CNS Act, 1997 and its possession even small in quantity necessitates consequences of punishment under Section 9. On the other hand, it is noticed by us that as per allegations, appellant purchased the entire consignment from one Muhammad Umar, Sales Manager of Zimidar Chemicals situated in Chiniot.
Likewise, two witnesses, namely, Muhammad Ilyas and Khawar Javed (PW.3 & PW.4) appeared in the dock with the claim of having purchased 120 & 70-cans of sulfuric acid from the appellant.
During arguments in pursuance to a query raised by us, learned law officer replied that even recovery of small quantity of sulfuric acid will attract the mischief of Section 9 of CNS Act, 1997. If such submission of learned law officer is correct exposition of law, then how Muhammad Ilyas and Khawar Javed (PW.3 & PW.4) were given a clean chit and instead of being arrayed as accused were cited witnesses in the case. Similarly, Muhammad Umair from whom statedly appellant purchased the sulfuric acid should have been implicated in the case as an accused. We have also noticed that in order to connect the appellant with the recovered substance, prosecution placed on record purchase receipts (Exh.P.9 & P.10) of sulfuric acid issued by M/S Zimidar Chemicals and Fertilizers (Pvt.) Limited Chiniot. Even in these receipts the name of purchaser and more importantly of appellant is not mentioned anywhere. This fact was even admitted by Qaiser Rasool SI (PW.5) during his cross-examination.
12. We are mindful of the fact that according to Section 29 of CNS Act, 1997, regarding recovery of narcotic drug, psychotropic substance or controlled substance a presumption is to be drawn that the accused possessing these substances is guilty of an offence under this Act. For reference sake the foregoing provision is reproduced hereunder in verbatim: - "29. 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---
(a) any narcotic drug psychotropic substance or controlled substance;
(b) any cannabis, coca or opium poppy plant 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 psychotropic substance or controlled substance or any 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".
Undoubtedly, a negative language is couched in Section 29 of CNS Act, 1997 and if examined with casual approach it implies that the primary burden to disprove the allegations rests upon the shoulders of accused which is not correct exposition of law. Section 29 is pari materia with Section 8 of Suppression of Terrorist Activities (Special Courts) Act, 1975 (since repealed), Section 9 of Offences in Respect of Banks (Special Courts) Ordinance, 1984 and Section 14 of National Accountability Ordinance, 1999. Over the time all the afore-mentioned provisions attained judicial attention of the Hon'ble Supreme Court of Pakistan and it was Consistently held that by no stretch even in special enactments prosecution can be absolved from its responsibility of initially proving its case. Similarly, in cases arising out of CNS Act, 1997, the primary onus is on prosecution to prove its case and such burden includes the obligation to establish a strong and undeniable nexus between the recovered substance and the accused facing trial. Only the success of prosecution in establishing a tie between the recovered substance and accused will bring in action Section 29 of CNS Act, 1997. The Hon'ble Supreme Court of Pakistan while dilating upon the true import and interpretation of Section 29 observed in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court 380) as under:- "It goes without saying that the initial onus on the prosecution in such cases includes the onus to prove that the entire substance allegedly recovered is in fact narcotic substance and such onus can be discharged by the prosecution only if the samples of the recovered substance sent to the Chemical Examiner for analysis are representative samples of the entire quantity of the recovered substance."
Similar was the interpretation given to Section 29 by the Hon'ble Supreme Court of Pakistan in cases reported as Muhammad Noor and others v. The State (2010 SCMR 927) and Muhammad Wall v. The State (2011 SCMR 1954). In the same stretch, we are persuaded to hold that the case in hand is no different and it was obligatory upon the prosecution firstly to prove its case impeccably only then the defence was required to extricate the indictment against him. In our considered view, the prosecution miserably failed to prove, the possession of appellant over the recovered substance beyond scintilla of any doubt.
13. There is yet another factor which calls for our indulgence and it pertains to the applicability of Section 9 of CNS Act, 1997 regarding the recovery of sulfuric acid. In order to make an accused liable under Section 9 of CNS Act, 1997, it is incumbent that the substance recovered from him must be proved in contravention of Sections 6,7 & 8. It is noticed that as per Section 6 an embargo is imposed for manufacturing, extracting, preparing possessing etc the narcotic drug, psychotropic or controlled substance. So far as, the term "narcotic drug" is concerned, it is defined in Section 2
(s) as coca leaf, cannabis heroin, opium, poppy straw and all manufactured drugs. The term "psychotropic substance" is defined in Section 2 (za) as the substance specified in the Schedule to this Act and such substances as the Federal Government may by notification in the official gazette declare to be a psychotropic substance. As regards, "controlled substance", in Section 2 (k) it is defined as any substance which may be used for the production or manufacture of narcotic drugs or psychotropic substance. Section 6 of CNS Act, 1997 also provides an exception and paves way for possessing these substances for the purposes of medical, scientific or industrial purposes but in the manner and subject to the conditions specified either under CNS Act, 1997 or through any other law for the time being in force. Admittedly, sulfuric acid does not come within the purview of narcotic drug as defined in Section 2 (s). Similarly, in reference to psychotropic substance as elaborated in Section 2 (za), we have gone through the Schedule annexed with CNS Act, 1997 and it is noticed that approximately 85 items are mentioned but sulfuric acid is not included therein. As regards, controlled substance it is defined in Section 2 (k) as any substance which may be used for the purpose of production or manufacture of narcotic drugs and such definition has relevancy to the proposition under consideration. In this regard, we have noted that as per United Nations Conventions Against The Illicit Traffic In Narcotic Drug or Psychotropic Substance of 1988, the process of manufacturing cocaine and Heroin has been defined which for reference sake is being reproduced hereunder:--- "The manufacture of one kilogram of heroin requires 10 kilograms of opium and 20 kilograms of other substances. Chemicals are required in every step in the manufacture of heroin, and these include alklis (calcium oxide or hydroxide; ammonium chloride or hydroxide; calcium carbonate; sodium carbonate or bicarbonate), acids (tartaric, hydrochloric or sulphuric), an acetylating agent (almost always acetic anhydride or occasionally acetyl chloride) and solvents (acetone or ethyl ether)".
When seen in the context of above mentioned United Nations' Conventions of 1988, the sulfuric acid since is used for the manufacture of narcotic drugs or psychotropic substance, thus comes within the purview of controlled substance as defined in Section 2 (k) of CNS Act, 1997. We have further taken note of the fact that sulfuric acid is mentioned as controlled chemical in Schedule-V division II of Control of Narcotic Substances (Regulations of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001.
14. It follows from above that since sulfuric acid is used in preparing narcotic drugs, thus its unlawful possession comes within the purview of Section 6 of CNS Act, 1997. Despite forming such opinion, the things have not come to logical end as confusion erupts due to contradictory stance of Anti-Narcotic Force (ANF) and Ministry of Narcotics Control, Government of Pakistan. So far as, the topsy-turvy stance of ANF it is exposed from the fact that on one hand it is canvassed that even the small quantity of sulfuric acid is destined to entail consequences of proceedings under CNS Act, 1997. On the other hand, the seller of acid i.e. Zimidara Chemicals was given a clean chit and the purchasers i.e. Ilyas and Javed (PW.3 & PW.4) were made witnesses in the case. At the same time, it is observed by us that Qaiser Rasool SI (PW.5) stated during cross-examination:-- "No licence is required to a consumer for consumption of sulfuric acid as it is a general policy under the law that one person can use in a year less than 10-tins."
In reference to above extract, we have failed to digest that if stance of Qaiser Rasool SI (PW.5) was correct then why appellant was grilled in this case. We consider it important to mention here that ANF is established under Act-III of 1997 for the purposes of inquiring and investigating offences relating to narcotics, its trafficking and for matters connected or incidental thereto. Needless to mention here ANF must have consistent and impeccable policy about the status of sulfuric acid as controlled substance or otherwise. A pressing need is felt to point out here that 10-tons are equivalent to 9071.84 kilograms which is much more than the quantity allegedly recovered from the appellant. We will like to reiterate here that according to case of prosecution orchestrated in the complaint (Exh.PD), 6300 kilograms of sulfuric acid was recovered from the appellant which is much less than 10-tons.
In order to address the anomaly divulging from afore-mentioned conflicting stance of ANF, we through order dated 24.05.2021 summoned Joint Secretary from the Ministry of Narcotics Control Government of Pakistan. Accordingly, Sabino Sikandar Senior Joint Secretary, Ministry of Narcotics Control (MNC), Islamabad entered appearance and apprised us that as per policy an individual can purchase 10-tons of sulfuric acid in a year, in support thereof submitted letter dated 04.06.2020 bearing No.9-0158/2013-Policy-I and its para-3 reads as under:- "A similar case was also registered under FIR No.99 dated 08.5.2019 by Police Station ANF Rawalpindi where the accused possessed 6300 kg Sulphuric acid which fell within exempted quantity and in this regard letter No.9-0158/2013-Policy-I dated 20.4.2020 having subject Survival of Sulfuric acid and other allied chemical industry was also forwarded to your office for views and comments but reply is still awaited."
The importance of afore-mentioned statement and letter can be gauged from the fact that as per Rule-2 Clause (iv) of Control of Narcotic Substances (Regulations of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001 the expression "competent authority" is defined as the authority notified in the official gazette by the Federal Government to discharge various functions including registration, licensing and import, export or transit permit authorization, etc. Accordingly, through SRO No.969 (I)/2004 Secretary MNC was appointed as competent authority by the Federal Government for the discharge of functions in relation to Control of Narcotic Substances (Regulations of Drugs of Abuse, controlled Chemicals, Equipment and Materials) Rules, 2001. In accordance with afore-mentioned SRO, Secretary Ministry MNC constituted committee comprising upon Senior Joint Secretary MNC as Chairman, Joint Director (Enforcement) ANF as Member, Deputy Secretary (Policy) MNC, Member and Section Officer (Policy-I) MNC as Member.
The committee in its 23rd meeting convened on 26th February, 2015 while addressing the registration issues observed as under:-- "The firms which demand less than 30 MT Hydrochloric Acid and 10 MT of Sulfuric Acid annually may be issued a letter from this Division that there is no need of NOC for local purchase/distribution/consumption of less than 30 MT Hydrochloric Acid and less than 10 MT Sulfuric Acid." - Admittedly, sulfuric acid is an industrial chemical used for multiple purposes which includes manufacturing/production of pulp and paper, agricultural chemicals, batteries, cell phones, detergents, fertilizer, gasoline, leather, lubricating oils, medicinal process, sugar etc. Section 6 of CNS Act, 1997 on one hand imposes prohibition for possession of controlled substance and on other hand provides an exception to use it for scientific or industrial purposes. Needless to mention here that for possessing any substance in accordance with exceptions contained in Section 6 a proper procedure of licensing is required. Lack of control over possessing substances mentioned in Section 6 and insouciant approach towards licensing will provide criminals to steal an opportunity so as to use such substances for manufacturing of narcotics etc. The uncertainty about the status of sulfuric acid and its possession is giving rise to intricacies more importantly for individuals and establishment engaged in industrial, medical and scientific fields, thus an immediate response is called for. Accordingly, we direct the D.G. ANF and Secretary MNC to forthwith form impeccable policy about the sulfuric acid, its possession and use. Office is directed to forward the copy of this judgment to D.G. ANF and Secretary MNC for appropriate and swift action.
15. The epitome of above discussion is that prosecution failed to prove its case against the appellant beyond scintilla of any doubt, thus conviction awarded to him is not sustainable.
16. The above are the reasons of our following short order of even date:--- "For the reasons to be recorded later, the instant criminal appeal, which is directed against judgment dated 17.03.2020 passed by Sessions Judge/Judge Special Court (CNS) Rawalpindi in case FIR No.99/2019 dated 08.05.2019 registered under Sections 9 (c), 15 & 16 of the Control of Narcotic Substances Act 1997 at Police Station ANF Rawalpindi whereby Muhammad Shahid (appellant) was handed down guilty verdict under Section 9 (c) of the Act ibid and sentenced to suffer imprisonment for life along with fine of Rs.10,00,000 (one million) and in default whereof to further undergo two years SI with the benefit of Section 382-B Cr.P.C., is accepted. Resultantly, his conviction and sentence is set-aside and in consequence thereof he is acquitted of the charge.
Muhammad Shahid (appellant) is in custody; be released forthwith if not required to be detained in another criminal case".