Athar Minallah, J.-The appellants, Ameenullah and Khairullah, had challenged their convictions and sentences handed down by the trial court before the High Court and their appeals were dismissed vide the impugned judgment dated 17.04.2019. They had sought leave and it was granted by this Court vide order dated 27.10.2022.
2. The appellants were arrested on 12.03.2017 when a substantial quantity of narcotic substance, 314 kilograms, was recovered from the secret cavities of the vehicle in which they were travelling. The vehicle was driven by the appellant, Ameenullah, while the other, Khairullah, was seated on the passenger seat. They were nominated in crime report 21, dated 12.03.2017, registered at Police Station Staurt Ganj, District Shikarpur, under section 9(c) of the Control of Narcotic Substances Act 1997 ('Act of 1997'). Inspector Pervaiz Ali Mithiani, SHO (PW-1), had recovered the alleged narcotic substance and had also arrested the appellants. According to the prosecution story, three other persons, namely, Bismillah, Hikmatullah and Shah Dolo, were suspected during the course of investigation to have also been involved in the commission of the offence. The latter could not be arrested and, therefore, proceedings were initiated against them and, consequently, they were declared as absconders. The conclusion of the investigation had led to the filing of a report under section 173 of the Code of Criminal Procedure 1898 ('Cr.P.C.') followed by framing of the charge by the trial court. The appellants did not plead guilty. The prosecution produced only two witnesses i.e. Inspector Pervaiz Ali Mithani and Mehrab Ali, Assistant Sub-Inspector and they had entered the witness box as (PW-1) and (PW2) respectively. The prosecution had, inter alia, tendered in evidence a report of the Chemical Examiner dated 29.03.2017, Ex.9/A to 9/I. The record of this case shows that the prosecution had opted to give up all the other witnesses. The appellants did not opt to be examined under oath nor to produce evidence or witnesses in support of their defence. Their statements were, therefore, recorded under section 342 of the Cr.P.C. Appellant Kharaiullah had initially expressed his willingness to be examined under oath but later an application was moved by informing the court that he did not intend to be examined under oath. The trial court, upon conclusion of the trial, convicted the appellants under section 9(c) of the Act of 1997. They were sentenced to undergo rigorous imprisonment for life and a fine of rupees one million each was also imposed upon them. It was further directed that in case of default of payment of fine, the appellants were required to undergo simple imprisonment for six months. They were extended the benefit contemplated under section 382-B Cr.P.C.
3. The appellants challenged their convictions and sentences before the High Court and the appeal was dismissed vide the impugned judgment.
4. We have heard the learned counsel for the appellants and the Additional Prosecutor General at great length. We have also perused the record with their able assistance.
5. It is alleged that substantial quantity of narcotic substance was recovered from the secret cavities of the vehicle driven by the appellant, Ameenullah, while the other appellant, Khairullah, was travelling on the passenger seat. The recovery of the alleged narcotic substance was made by Inspector Pervaiz Ali Mithani, SHO (PW-1) and Mehrab Ali, Assistant Sub-Inspector (PW-2) was one of the witnesses. There is no explanation as to why the prosecution had decided to give up the other witnesses and why specific permission to give up the said witnesses was granted by the trial court. The prosecution had not produced any witness to prove the factum of safe custody of the narcotic substance nor the eight bags of case property which were sealed after the alleged recovery. The recovered narcotic substance was found packed in 314 packets and each packet weighed one kilogram. Moreover, each packet contained two slabs of the material alleged to be a narcotic substance. The evidence brought on record shows that the recovered material was sealed in eight bags. Inspector Perviaz Ali Mithani, SHO (PW-1) had deposed that he himself had sealed each bag and had placed the case property in the mall khana of the Police Station. The other witness, Mehrab Ali, Assistant Sub Inspector (PW-2) had contradicted this deposition. He had stated in his testimony that the bags were not sealed by the SHO i.e PW-1 himself and that the sealed bags were kept in the Mall Khana by the Head Moharrir. Inspector Pervaiz Ali Mithani, SHO (PW-1), had deposed that the bags were taken out from the Mall Khana on 13.3.2017 and were sent to the Forensic Laboratory in Karachi. The evidence placed on record shows that the bags were delivered on 14.3.2017 by Constable Zamir Ahmed. The latter was not produced as a witness. However, the laboratory in Karachi had returned the bags on the ground that they were to be examined by the office of the Chemical Examiner, Rohri. The bags were then sent to the office of the Chemical Examiner in Rohri on 15.03.2017 but there is nothing on record as to how the bags were dealt with and kept in safe custody in the Mall Khana upon their return from Karachi and how or by whom they were again taken out from the Mall Khana on 15.3.2017 and who had transmitted them to the Chemical Examiner's office in Rohri. It further appears from the evidence that the Chemical Examiner's office in Rohri had also not entertained the bags since they were returned. However, the bags were again sent to and received by the Chemical Examiner's office in Rohri on 22.3.2017. What happened to the bags and how they were dealt with from 13.3.2017 to 22.3.2017 is shrouded in mystery. The Chemical Examiner's report, dated 29.03.2017, records that the eight sealed bags were received in the office in Rohri on 22.3.2017 and they were delivered by Constable Zamir Ahmed. As already noted, the latter was not produced as a witness to establish the safe transmission.
Moreover, the prosecution had also not produced any witness to establish that the recovered narcotic substance had been kept in safe custody while it was kept at the Police Station. In this case the only two witnesses who had entered the witness box to prove the prosecution's case had not been associated with the safe custody while the narcotic substance was kept at the Police Station nor when it was being transmitted to the Chemical Examiner's office or when it was returned. The narcotic substance was recovered on 12.3.2017 and, according to the testimonies of the two witnesses, the eight sealed bags were kept in the Mall Khana, though they contradicted each other as to who had actually placed them there. Inspector Pervaiz Ali Mithani, SHO (PW-1), claims in his testimony that he had done so but does not depose whether the entries were recorded in the relevant register/books. Mehrab Ali, Assistant Sub-Inspector (PW-2), has materially contradicted this assertion. As already noted, according to the testimony of the former, the entire quantity of the narcotic substance, sealed in eight bags, was taken out from the Mall Khana and sent to the Forensic Laboratory in Karachi from where it was returned. These bags were then sent to the office of the Chemical Examiner in Rohri but it was not accepted and therefore the bags were returned on 15.3.2017 and again transmitted on 22.3.2017. Neither any witness such as the Moharar, Naib Moharar or any other official performing functions relating to the Mall Khana was produced nor was any other evidence adduced to prove that the eight sealed bags, which were sent for chemical analysis, had been kept in safe custody while they remained at the Police Station. The sealed bags were stated to have been taken out from the Mall Khana more than once for transportation to the Chemical Examiners office and then reentered on return. No evidence was adduced to establish the factum of safe transmission to and from the respective offices of the Chemical Examiner. It is a mystery how these eight bags were kept and dealt with in the context of their safe custody and transmission. This was crucial for proving beyond doubt that the material alleged to have been recovered was a narcotic substance and not something else. The positive report of the chemical examiner loses its evidentiary value and cannot be relied upon unless the safe custody and transmission from the stage of recovery till its final transmission to the office of the chemical examiner has been established through unimpeachable evidence. Was this failure on the part of the prosecution so fatal that the petitioners will become entitled to the benefit of doubt as of right and earn acquittal from the charges framed against them?
6. In the case of conviction under the Act of 1997, it is an onerous duty of the prosecution to prove beyond a reasonable doubt that the material recovered from an accused is one of the narcotic drugs defined in the said statute. The most crucial element in proving this factor is the evidentiary value of the report of the government analyst. The credibility and integrity of the chemical examiner's report essentially depends on proving the recovery and, most importantly, the chain of custody. This chain of custody commences from the stage of the recovery of the alleged material and ends at the delivery of the samples to the chemical examiner's office. After the alleged material has been recovered, samples are separated and sealed in accordance with the principles and law enunciated by this Court in Ameer Zeb's case[1]. Then the recovered material has to be taken to the Police Station and kept there in custody by the concerned law enforcement agency.
The samples are then to be taken out from the place of storage and transmitted to the concerned government analyst for chemical analysis. The chain of safe custody, therefore, starts from the recovery till the samples have been received at the office of the government analyst. The integrity of this chain of custody at each stage is fundamental for proving that the material recovered and seized by the law enforcing agency is one of the narcotic drugs contemplated under the Act of 1997. Section 29 of the Act of 1997 provides that in relation to trials ibid it may be presumed that the accused has committed the offence under the Act of 1997 unless the contrary is proved. This Court, while interpreting this provision in the case of Ameer Zeb (supra), after examining its earlier judgments rendered in the cases of Kashif Amir and Muhammad Noor[2], has held that the initial onus to prove the offence of recovery of narcotic substance from the accused is always on the prosecution and, once it has discharged that onus to the satisfaction of the court, it is only then that the onus shifts to the accused person to establish falsity of the prosecution's allegation against him/her. It has been further observed that the initial onus on the prosecution in such cases includes the onus to prove that the entire substance allegedly recovered is in fact a 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. It has also been highlighted that, keeping in view the principles for safe administration of justice, a strict standard of proof is required in the case of offences which attract harsh sentences such as have been prescribed under the Act of 1997. The chain of safe custody and transmission thereof becomes crucial for the prosecution to prove its case. The prosecution, by producing unimpeachable evidence, has to prove that the chain of safe custody was unbroken, unsuspicious, indisputable, safe and secure. Any break in the chain of custody or lapse in the control regarding possession of the samples causes doubts relating to safe custody and safe transmission of the samples and, consequently, it impairs and vitiates the conclusiveness and reliability of the chemical report of the government analyst. It, therefore, renders the conviction to be unsustainable. If the prosecution fails in establishing safe custody or safe transmission of the alleged drug then the chemical report of the government analyst becomes doubtful and unreliable[3].
7. If a person who is in charge of the place of storage in the Police Station i.e the Mall Khana or some other responsible person related with its affairs is not produced as a witness nor unimpeachable evidence relating to the record maintained is produced to establish the entry into and taking out of the material and samples from such designated storage place, then the safe custody becomes doubtful and thus breaks the chain[4]. Likewise, if the official through whom the samples are transmitted to the office of the government analyst is not produced, the chain is broken and thus renders the chemical report unreliable or compromised[5]. It is, therefore, the obligation of the prosecution to prove the allegation against the accused to the satisfaction of the court that the chain of safe custody was unbroken and that safe custody of the samples and their transmission to the office of the chemical analyst were uncompromised beyond any doubt.
8. In this case, as noted above, the prosecution had produced only two witnesses and both of them could only establish the recovery of the alleged recovered drug. They were neither officials who were in charge of the designated place of storage at the Police Station i.e. the Mall Khana, nor had they transmitted the sealed bags to the office of the government analyst. Moreover, one of the witnesses had deposed that the sealed bags were kept in the Mall Khana by the Head Moharrir while the other had merely stated that they were kept at the place of storage i.e. the Mall Khana.
The record of the trial court shows that the other witnesses were given up by the prosecution and this request was allowed by the trial court. Did the prosecution as well as the trial court fail in their respective obligations? It cannot be presumed that they may have been unaware that it was not enough to prove the recovery. The relevant law provides that the prosecutors are appointed after careful scrutiny and they are presumed to be professionally competent. Likewise, a trial court is vested with extensive powers and the question is whether it exercised those powers diligently and in accordance with law.
9. The next question, therefore, that needs to be considered is whether the prosecution was justified in giving up crucial witnesses and whether the trial court had fulfilled its obligations by allowing the request of the public prosecutor. Could the trial court order summoning of witnesses even though they may not have been included in the calendar of witnesses?
10. The Act of 1997 is a special statute and has been promulgated by the legislature with the object to summarize and amend the laws relating to narcotic drugs and psychotropic substances.
Section 47 ibid provides that the provisions of the Cr.P.C. shall apply, inter alia, to trials except as otherwise provided there under. Section 540 of the Cr.P.C. empowers a trial court to summon or examine a person as a witness. The provision has two distinct parts. The first part is discretionary and empowers any court and at any stage of the trial to summon any person as a witness or to examine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined. The second part makes it a mandatory obligation of the court to summon and examine or recall or reexamine any person if the latter's evidence appears to the court to be essential to the just decision of the case.
11. The provisions of section 540 of the Cr.P.C. were examined by this Court in Nawabzada Shah Zain Bugti's case[6], and it was held that it gives wide powers to the court to examine any witness as a court witness at any stage of the case, rather in certain situations it imposes a duty on the court to summon witnesses who could not otherwise be brought before the court. It was observed that the court cannot summarily dismiss an application for additional evidence by merely holding that either such witness was not mentioned in the challan or that it was a belated application or that it may have the effect of filling lacunas in the prosecution's case unless the totality of the material placed before the court is considered to find out whether examination of the witness is essential for a just decision of a case. It was emphasized that the court has to keep in mind that, while trying a case, it has to find out the truth to render a judgment in accordance with the cannons of justice. If the court finds that the investigation is defective then it cannot just sit idle as a 'timorous soul' and it has to exercise all the powers under the law, including those set out in section 540 of the Cr.P.C, to discern the truth. For the purposes of this provision the court can summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall or reexamine any person already examined even without a formal application from the prosecution or against whom the case is made out. The earlier judgment rendered in the case of Shahbaz Masih[7] was reaffirmed where this Court has held that under section 540 of the Cr.P.C. a court enjoys full powers to summon and examine any person as a witness at any stage of the trial, rather it becomes imperative for the court to summon and examine a person when evidence of the latter appears to the court essential to ensure a just decision of the case, because the underlying object is always to reach the truth. Section 540 of the Cr.P.C. empowers the court to summon or examine any person as a witness at any stage of an inquiry or trial and such power is not subject to any condition and can be exercised whether or not a person is cited as a witness in the challan case or the private complaint, as the case may be[8]. The court must liberally use the discretionary power in a case in which the examination of a person is material and is essential to come to a proper conclusion.[9] The most important condition for exercising the mandatory duty under section 540 of the Cr.P.C. is the satisfaction of the court that the evidence of the witness is essential for a just decision of the case. The discretionary power of the court to summon any witness may be exercised suo moto or on application.[10] The court is also empowered to summon a person as a witness though the latter may not be cited as a witness[11] or who does not appear in the calendar of witnesses[12].
12. It is obvious from the survey that the power of a trial court under section 540 of the Cr.P.C. is wide and, in certain situations, it becomes mandatory for a court not to hesitate from exercising it.
However, utmost care also has to be exercised while exercising such wide powers so that it does not appear that the court is leaning towards the prosecution by filling lacunas in the latter's case.
They have to be exercised with caution and circumspection in accordance with the provisions of the Cr.P.C. and the general principles of criminal law. The court must guard against exploitation of this power by parties who had ample opportunity to produce evidence within their knowledge and must not be seen to be putting one of parties in a position of advantage. The guarding principle is always what the ends of justice demand keeping in view the facts and circumstances of a particular case[13]. The power under section 540 of the Cr.P.C. can neither be used to advance the case of the prosecution nor that of the defence[14]. The power is also not used to fill any gaps in the prosecution's evidence nor to give it any unfair advantage against the accused. The fundamental aspect the court is required to consider while exercising this power is whether summoning of a witness is necessary in the facts and circumstances of the case. There is also no bar that a witness whose statement under section 161 of the Cr.P.C. has not been recorded at the time of investigation cannot be allowed to be examined under section 540 of the Cr.P.C. However, if such a witness has been examined then the evidentiary value of the evidence would determine whether prejudice could be caused to the accused if it is taken into consideration.[15]
13. In the instant case, the prosecution had recovered a substantial quantity of narcotic substance.
It was under an obligation not only to prove the recovery but, more importantly, that it fell within the categories defined under the Act of 1997 and a positive report of the chemical examiner was not sufficient. The persecution was to prove through reliable, trustworthy and confidence inspiring evidence that the substance or samples received by the Government analyst was the same which was recovered and that the report was connected there with. This could only have been proved through an unbroken chain of safe custody and transmission from the stage of recovery till the substance or samples were received by the office of the Government Analyst. The prosecution had produced only two witnesses who were associated with the recovery. For reasons best known to the prosecution the other crucial witnesses were given up and the trial court had also approved this request. It is difficult to imagine that the prosecution was not competent to appreciate that by doing so they would fail in discharging their duty to prove guilt beyond reasonable doubt. It was also not expected that the trial court would allow the request and prevent itself from reaching a just decision. The court, in our opinion, was empowered under section 540 of the Cr.P.C. to decline the prosecution's request to give up the material witnesses or to summon them even if not cited in the calendar of witnesses. It would not have amounted to filling the lacunas of the prosecution's case but to exercise its powers vested under section 540 of the Cr.P.C to enable itself to reach a just decision. It would not come within the ambit of the expression 'filling the lacunas' because the trial court would not be facilitating the prosecution to remedy an inherent weakness in its case but would rather be correcting an inadvertent or reckless omission on the part of the prosecution during the trial. The prosecution in this case, through its own conduct, had failed in its obligation to prove its case while the trial court, by disregarding its mandatory duty under section 540 of the Cr.P.C, had facilitated the prosecution. The unbroken chain of safe custody and transmission was not proved and, therefore, the positive report of the Chemical Examiner had lost its evidentiary value and thus could not be relied upon to convict the appellants. The prosecution had failed in establishing the safe custody and safe transmission of the alleged drugs recovered from the possession of the appellants and, therefore, the chemical report cannot be relied upon. The benefit of doubt is extended as of right to the appellants and, consequently, they are acquitted from the charge framed against them by the trial court. They are directed to be released from the jail forthwith, unless required to be detained in any other case.
The above are the reasons for our short order of even date.
14. Before we close this judgment, we are compelled to record our observations regarding the role and conduct of the prosecution in cases relating to narcotics which end up being adjudicated before this Court. This case is only a tip of the iceberg. In each Province and the Federal Capital the respective offices of prosecutors have been established under the relevant legislation. This case has emanated from the Province of Sindh where the Provincial Assembly of Sindh has promulgated and enacted the Sindh Criminal Prosecution Service (Constitution Functions and Powers) Act 2009 ('Act of 2009'). The Criminal Prosecution Service of Sindh has been established under this legislation. The Act of 2009 sets out the powers, functions and responsibilities of the prosecution service in conducting prosecutions on behalf of the Government. The administration of this service vests in the Government. Section 9 (1) explicitly provides that the Prosecutors shall be responsible for the conducting of prosecutions on behalf of the Government. The Prosecutor General is empowered under section 9-A (1) to issue general guidelines for the Prosecutors or officers responsible for investigation for effective and efficient prosecution. Section 9-A (2) further empowers the Prosecutor General or the District Public Prosecutor to refer to the competent authority to initiate disciplinary proceedings or to take disciplinary action against any public servant working in connection with investigation or prosecution for any act committed by him or her that is prejudicial to the prosecution. Section 11(8)(a) provides that the Prosecutor shall in all matters, perform his/her functions and exercise powers fairly, honestly, with due diligence, in public interest and to uphold justice. Not in this case but in several other cases it has been observed that the Prosecutors had not discharged their functions and powers in accordance with the responsibilities set out under the Act of 2009. The consequence is acquittal since the prosecution fails to prove its case beyond reasonable doubt either on account of inadvertent or reckless omissions. This has profound consequences for the society and rule of law. The case before us is a classic example. All the witnesses associated with the safe custody and transmission of the eight sealed bags were police officials. The record required to be produced for proving the safe custody and transmission was prescribed under various laws and maintained by the Police Station. Giving up the witnesses despite the settled law consistently affirmed by this Court in various judgments or neglect to produce them to prove the safe custody and transmission cannot by any stretch of imagination be treated as an inadvertent mistake, rather it could be a reckless or deliberate misconduct. It could also raise two presumptions; either the public officials involved in investigation may have been complicit to favour the accused or that he or she may have been falsely implicated. In case of such grave omission no Prosecutor nor an investigator can plead ignorance.
The quality of investigation in this case was also questionable. The registration of the vehicle from which a substantial quantity of narcotic substance was recovered was not only known to the Investigators but the name of the owner was also disclosed by the appellants. The record is silent as if the public officials and persons involved in the investigation and prosecution were satisfied with the arrest of the appellants only who were no more than mere carriers. Regrettably, in almost all cases relating to narcotics the investigation and prosecution does not go beyond the carriers, most of whom belong to the underprivileged classes. There are several law enforcement agencies vested with powers to apprehend and prosecute those who are involved in the crimes relating to narcotic drugs including a special agency, the Anti-Narcotics Force established under the Act of 1997. The people of Pakistan have to bear the financial burden for maintaining these law enforcement agencies entrusted with the onerous task to eradicate the menace of narcotic drugs from the society. Have they achieved their designated goal? The answer is an emphatic 'No'. The evil of narcotic drugs has spread throughout the country and it cannot be disputed that it has reached the educational institutions where they are freely accessible. The law enforcement agencies have not gone beyond arresting carriers and then, in many cases, failing to prove the guilt even to their extent. If the society has to be freed from the evil of narcotic drugs then each law enforcement agency has to perform effectively and in the most professional manner. They have to be held accountable for their omissions and lapses committed during the investigations or while prosecuting a case. The future generations cannot be exposed to the menace of narcotic drugs merely because the several law enforcement agencies entrusted with the onerous duty to free the society from this evil fail to perform effectively or are seen as complicit. The buck stops with the Federal and Provincial Governments, as the case may be, because they are ultimately responsible for the overall and general supervision of the law enforcement agencies. The responsibility does not end with the Executive branch of the State because the Judicial branch is also equally responsible in ensuring that the trial is conducted fairly and that a just decision is reached. This case also shows that the trial court had failed in exercising its powers vested under the law. We, therefore, expect that the Government of Sindh which, according to section 5 (1) of the Act of 2009, exercises general superintendence over the Prosecution Service and is responsible for ensuring achievement of the objectives of the Act of 2009, will take effective steps so that cases involving crimes relating to narcotic substances are dealt with effectively and in accordance with the duties and responsibilities of the investigators and Prosecutors. The Prosecutor General Sindh is expected to examine this case and take appropriate action so that the omissions observed in this case are not repeated. The Prosecutor General is further advised to consider issuing guidelines in exercise of its functions under section 9-A (1) of the Act of 2009 for the Prosecutors and officers responsible for investigations relating to effective and efficient prosecution. The High Court is also expected to consider laying down a policy of regular training of judicial officers relating to conducting of criminal trials.
15. The office of this Court is directed to send copies of this judgment to the Chief Secretary and Prosecutor General, Sindh for taking appropriate steps in the light of the above observations. A copy is also directed to be sent to the Registrar of the High Court of Sindh for placing it before the Chief Justice for his consideration.
1. Ameer Zeb v. The State (PLD 2012 SC 380)
2. Kashif Amir v. The State (PLD 2010 SC 1052) and Muhammad Noor and others v. The State (2010 SCMR 927)
3. The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Amjad Ali v. The State 2012 SCMR 577), Ikramullah v. The State (2015 SCMR 1002) and Zahir Shah alias Shat v. The State (2019 SCMR 2004)
4. Ishaq v. The State (2022 SCMR 1422)
5. Mst. Razia Sultana v. The State (2019 SCMR 1300)
6. Nawabzada Shah Zain Bugti and others v. The State (PLD 2013 SC 160)
7. Shahbaz Masih v. The State (2007 SCMR 1631)
8. Abdul Salam v. The State (2000 SCMR 102).
9. Muhammad Murad Abro v. The State (2004 SCMR 966).
10. Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550)
11. Abdul Salam v. The State (2000 SCMR 102)
12. Sajid Mehmood v. The State (2022 SCMR 1882)
13. Painda Gul and another v. The State and another (1987 SCMR 886).
14. Muhammad Murab Abro v. The State (2004 SCMR 966)
15. Sajid Mehmood v. The State (2022 SCMR 1882).