Muhammad Tariq Nadeem, J:- This appeal under section 31(7) of The Drugs Act, 1976, is directed against the judgment dated 17.10.2022, passed by learned Chairman Drug Court, Bahawalpur Division, Bahawalpur, whereby the appellant was convicted under section 27(4) of the Drugs Act, 1976 (Amended 2017) and sentenced to simple imprisonment for a period of thirty days and to pay fine in the sum of Rs.5,00,000/-, in default thereof to further undergo simple imprisonment for six months. He was further convicted in Schedule III(1)(a) of the Drug Regulatory Authority of Pakistan Act, 2012, and sentenced to imprisonment till the rising of the trial court and to pay fine in the sum of Rs.1,00,000/-, in default thereof to further undergo simple imprisonment for six months. However, both the sentences were ordered to run concurrently.
2. The prosecution story as given in the judgment of the trial court reads as under:- "Brief facts of the story of the prosecution as unfolded in the complaint are that on 18.08.2017 at about 02.00 p.m., Maqbool Hussain provincial Inspector of Drugs, Rahimyarkhan PW1 vide notification Mark-A along with PW-2 Abdul Wahid, Naid Qasid, Chief Executive District Health Authority Rahimyarkhan inspected the clinic of the accused Muhammad Ramzan M/S Dewal Sharif Clinic situated at Yousaf Colony Chak No. 112/P P/O Chak No. 114/P Tehsil & District Rahimyarkhan. The accused Muhammad Ramzan was present at the time of inspection and was stocking and selling allopathic drugs,
1. Without Drug sale License
2. Without Warranties
3. Spurious Alternative Medicines And the same drugs were seized. The said Drug Inspector recovered / seized Nine (09) different kinds of drugs P1 to P9 on From-5 Exh. PA. Accused Muhammad Ramzan refused to sign and also refused to receive copy of Form-5. PW Abdul Wahid signed on Form-5 Exh. PA/1 as marginal witness. The Drug Inspector PW1 sealed the premises of accused Muhamad Ramzan u/s 18(1)(h) of the Drugs Act, 1976. The PW1 Drug Inspector Rahimyar Khan Referred the case to the Convener District Quality Control Board vide letter Exh. PB. The PW3 Secretary District Quality Control Board Rahimyarkhan issue show cause cum personal haring Exh-PD to the accused thorugh registered post, postal receipt is Exh-PD/1. The case of the accused was considered in the meeting of District Quality Control Board Rahimyarkhan held on 28.09.2017. The accused Muhammad Ramzan did not appear in the meeting of District Quality Control Board Rahimyarkhan. The District Quality Control Board after thoroughly perusing the record granted permission for prosecution against the accused Muhammad Ramzan for the offence of stocking and selling drugs without Drug Sale Licence, without warranties and spurious alternative medicines Ex-PE. After receipt of permission for prosecution letter Ex-PE, PW1 prepared complains Ex-PC and submitted before this Honorable court for trial ."
3. After getting due sanction from the competent authority, complaint was submitted before the trial court. On indictment, the appellant pleaded not guilty and claimed trial. In order to bring home the alleged guilt of the appellant, the prosecution got examined as many as three witnesses namely Maqbool Hussain, Drug Inspector (PW.1), Abdul Wahid, Naib Qasid (PW.2) and Asad Ullah Faiz, Secretary District Quality Control Board (PW.3). After completion of prosecution evidence, statement under section 342 Cr.P.C. of the appellant was recorded wherein he denied the allegations levelled against him and claimed his innocence. While answering to a question, "why is this case against you and why the P.Ws have deposed against you? the appellant replied as under:- "PW-2 is inhabitant of my neighboring village and has some political as well personal grudge. He has managed his superior officer i.e. Drug Inspector and false case has been prepared in the office only to blackmail and to get political affiliation from me."
In his statement under section 342, Cr.P.C. the appellant opted to appear as his own witness within the scope of section 340(2) Cr.P.C. and produce his defence evidence, but later on he only produced certain documents in his defence evidence and did not get himself examined under section 340(2), Cr.P.C.
4. The trial court vide judgment dated 17.10.2022 held the appellant guilty, convicted and sentenced him as mentioned above, hence, this criminal appeal.
5. Learned counsel for the appellant contends that the initiation of prosecution against the appellant was in serious violation of prescribed rules and procedure, which fact alone is enough to demolish the entire prosecution case. Further contends that nothing was recovered from the possession of appellant and the whole recovery proceedings as well as the recovery itself were not only fake and planted but also in sheer violation of section 103, Cr.P.C. Lastly submits that the statements of prosecution witnesses are at variance with each other, creating serious doubt in the veracity of prosecution case, thus, the appellant deserves clean acquittal.
6. Conversely, learned Deputy Prosecutor General vehemently opposes the contentions raised by learned counsel for the appellant and pleaded for the dismissal of instant criminal appeal with the submission that the prosecution has successfully proved its case against the appellant beyond any shadow of doubt.
7. We have heard the arguments advanced by learned counsel for the appellant as well as learned Deputy Prosecutor General assiduously and perused the record minutely.
8. Amongst the contentions raised by learned counsel for the appellant, most important contention is that the prosecution of the appellant was not initiated in accordance with the prescribed rules and procedure. To find out a satisfactory answer to this vital question, we have pondered upon the relevant provisions contained in The Drugs Act, 1976, Punjab Drug Rules, 2007 and Drug Regulatory Authority of Pakistan Act, 2012. Section 17 of The Drugs Act, 1976, envisages that the Federal Government or a Provincial Government may, by notification in the official gazette, appoint a duly fit and qualified person as the Federal or Provincial Inspector, who shall be vested with certain powers as given in Section 18 of The Drugs Act, 1976, which reads as infra: - "18. Powers of Inspectors.- (1) Subject to the provisions of section 19 and of any rules made in this behalf, an Inspector may, within the local limits for which he is appointed, and in any other area with the permission of the licensing authority,-
(a) inspect any premises wherein any drug is manufactured, the plant and process of manufacture, the means employed for standardising and testing the drugs and all relevant records and registers;
(b) inspect any premises wherein any drug is sold or is stocked or exhibited for sale or is distributed, the storage arrangements and all relevant records and registers;
(c) take samples of any drug which is being manufactured, or being sold or is stocked or exhibited for sale or is being distributed;
(d) enter and search, with such assistance, if any, as he considers necessary, any building, vessel or place, in which he has reason to believe that an offence under this Act or any rules has been or is being committed or may continue to be committed;
(e) call any person to be present as witness in the course of search or seizure or in connection with any other matter where the presence of witnesses is necessary;
(f) seize such drug and all materials used in the manufacture thereof and any other articles, including registers, cash-memos, invoices and bills, which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any rules: Provided that where the contravention is such which can be remedied, the stocks shall not be seized upon undertaking in writing of the person not to sell drug without remedying the defect, under intimation to the Board concerned;
(g) require any person to appear before him at any reasonable time and place to give statement, assistance or information relating to or in connection with the investigation of an offence under this Act or the rules: Provided that the exemptions under Sections 132 and 133 of the Code of Civil Procedure, 1908 (Act V of 1908), shall be applicable to requisitions for attendance under this clause;
(h) lock and seal any factory, laboratory, shop, building, store-house or godown, or a part thereof, where any drug is or is being manufactured, stored, sold or exhibited for sale in contravention of any of the provisions of this Act or the rules;
(i) forbid for a reasonable period, not exceeding two weeks or such further period, which shall not be more than three months, as the Inspector may, with the approval of the Provincial Quality Control Board, the Central Licensing Board, the Registration Board, or the licensing authority, as the case may be, specify, any person in charge of any premises from removing or dispensing of any drug, article or other thing likely to be used in evidence of the commission of an offence under this Act or the rules; and
(j) exercise such other powers as may be necessary for carrying out the purposes of this Act or any rules: Provided that the powers under causes (f) to (j) shall be exercisable only by an Inspector specifically authorized in this behalf, by an order in writing, by the Government appointing him, subject to such conditions as may be specified in such order."
And procedure to be followed by the Inspectors, so appointed in terms of section 17 of The Drugs Act, 1976, is provided in section 19 of the Act ibid, which is also reproduced hereunder:- "19. Procedure for Inspectors.- (1) Where an Inspector seizes any drug or any other article under section 18, he shall tender a receipt therefore in the prescribed form.
(2) Where an Inspector takes a sample of a drug for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he willfully absents himself, shall divide the sample into five portions and effectively seal and suitably mark the same and permit such persons to add his own seal, if any, and mark to all or any of the portions so sealed and marked: Provided that, where the sample is taken from premises whereon the drug is being manufactured, it shall be necessary to divide the sample into three portions only: Provided further that, where the drug is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same and, where necessary, sealing them: Provided further that if the contents of one container are insufficient for the laboratory test and analysis, the Inspector may increase the number of the containers in order to make the sample sufficient for this purpose.
(3) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same within seven days as follows:-
(i) one portion of sample he shall send to the Government Analyst concerned for test and analysis;
(ii) the second he shall send to the Chairman, Provincial Quality Control Board or the Central Licensing Board or the Registration Board, as the case may be;
(iii) the third, where taken, he shall send to the warrantor, if any, named under the proviso to sub- section (3) of section 32; and
(iv) the fourth, where taken, he shall send to the person purporting to be its manufacturer or importer, as the case may be.
(4) Where an Inspector seizes any drug containing any filthy or putrid substance, vermin, worm, rodent, insect or any foreign matter which is visible to the naked eye, and the sample is such that it cannot or need not be divided, he shall effectively seal and suitably mark the same and permit the person from whom he seizes the drug to add his own seal if any, and mark to it and shall produce the same before the Drug Court or the Central Licensing Board or the Registration Board, as the case may be, before which proceedings are instituted or action is initiated in respect of the drug.
(5) Where an Inspector takes any action under section 18,-
(a) he shall, as soon as practicable ascertain whether or not the drug contravenes any of the provisions of this Act and, if it is ascertained that the drug does not so contravene, he shall forthwith revoke the order passed under the said section or, as the case may be, take such action as may be necessary for the return of the stock seized and payment for the samples taken, under intimation to the Board concerned; b) if he seizes the stock of the drug, he shall, as soon as may be, inform the Board concerned and take its order as to the custody thereof: Provided that where a Federal Inspectors is not competent to take action under section 30, he shall as soon as may be report the matter and hand over the stock, if any, to the Provincial Inspector for further action under this Act.
(6) The Provincial Inspector on finding any contravention of this Act shall, unless the Board otherwise directs, always refer the case to the Provincial Quality Control Board and seek orders as to the action to be taken in respect of such contravention.
(7) The Federal Inspector on finding any contravention of this Act for which he is authorised shall, unless otherwise directed, always refer the case to the Central Licensing Board or the Registration Board or any other authority as may be specified for the purpose and seek any further orders as to the action to be taken in respect of such contravention."
We have further noted that quite similar powers vested with the Inspector(s) and procedure to be followed by them have been introduced in Schedule V of Drug Regulatory Authority of Pakistan Act, 2012 as well.
9. In the instant case, Maqbool Hussain, complainant was appointed as the Drug Inspector vide notification dated 12.02.2015. He appeared before the trial court as PW.1 and deposed that on 18.08.2017 at about 02:00 p.m. he along with Abdul Wahid, Naib Qasid of Chief Executive Office (Health), Rahim Yar Khan (PW.2), inspected the business premises of appellant situated at Yousaf Colony, Chak No.112/P, P.O Chak No.114/P, Tehsil and District Rahim Yar Khan. According to him (PW.1), the appellant was present at his business premises M/s Dewal Sharif Clinic and he was found selling/stocking allopathic drugs without drug sales license, without warranties and spurious alternative medicines manufactured without enlistment. He mentioned the detail of drugs (P1 to P9) in Form-5 (Exh.PA), sealed the premises of appellant, referred the case to the Convener, District Quality Control Board, Rahim Yar Khan through a separate letter (Exh.PB) and upon receipt of permission to initiate prosecution against the appellant along with a copy of show cause/personal hearing notice from the Secretary, District Quality Control Board, he prepared complaint (Exh.PC) and submitted the same before the trial court. Asad Ullah Faiz (PW.3) is the Secretary, District Quality Control Board, Rahim Yar Khan, who, while appearing in the witness box before the trial court, produced show cause/personal hearing notice (Exh.PD) dispatched in the name of appellant through a registered post along with postal receipt (Exh.PD/1).
10. We may observe here that the matter of issuing show cause notice to any person found to have contravened the provision(s) of The Drugs Act, 1976, is governed by Rule 5(3) of Punjab Drug Rules, 2007, which, for the purpose of convenience, is reproduced as under:- "5. Procedure for the Board.-(1) .................................................................................
(2) The Provinial or the District Board shall examine a case referred to it by an Inspector and shall, if an action is proposed to be taken against a person under the Act or the rules, issue a show cause notice to the person and provide him an opportunity for hearing before taking the action abut the prosecution of the person or recommending suspension or cancellation of his licence to the licensing authority...."
The use of word "shall" between the lines in the above quoted Rule makes it mandatory for the District Quality Control Board to serve the show cause notice upon the concerned person and afford him an opportunity of hearing before taking any action about the prosecution of such person. In this case, it is the stance of the prosecution that show cause/personal hearing notice (Exh.PD) was duly dispatched in the name of appellant through postal receipt (Exh.PD/1), however, learned Deputy Prosecutor General could not refer anything from the record to establish that the same was ever received by the appellant or he refused to receive it, because, none of the prosecution witnesses has stated a single word that he had received or refused to receive the show cause/personal hearing notice (Exh.PD) or he deliberately did not appear before the District Quality Control Board. Another notable circumstance to the above context is that according to the show cause/personal hearing notice (Exh.PD), the appellant was required to appear before the District Quality Control Board on 28.09.2017 at 11:00 a.m. but as per minutes of meeting of the District Quality Control Board (Exh.DA), meeting was held on 28.09.2017 at 10:00 a.m. which is exactly an hour before the time given to the appellant in the show cause/personal hearing notice (Exh.PD).
Besides, Asad Ullah Faiz, Secretary, District Quality Control Board, Rahim Yar Khan (PW.3) stated in his cross-examination that usually the show cause notice is given to the effect that the accused has to reply within seven days of its receipt and sometimes another notice is issued in case of non- appearance of accused in the meeting, but this practice has also not been adopted in appellant's case, therefore, we are fully convinced with his stance that the prosecution against him was not initiated in accordance with law.
11. In addition to the above, we have observed that according to seizure memo i.e. Form-5 (Exh.PA), the appellant refused to sign and receive the copy of Form-5 but contrary to this stance of the prosecution, Maqbool Hussain, Drug Inspector (PW.1) has specifically mentioned in letter (Exh.PB) written by him to the Convener, District Quality Control Board, District Government, Health Department, Rahim Yar Khan, for permission of prosecution/sealing of premises/further advice/custody of drugs thereof, as infra:- "Then I recovered and seized some allopathic drugs from the said premises on Form 5 and sealed the premises in presence of witnesses. Said Mohammad Ramzan S/o Mohammad Irshad-ul-Haq duly signed & thump marked on Form 5, to the affect that the Drug Inspector recovered & seized the drugs from his custody. (Copy of Form.5 attached)."
We have minutely scanned the record but could not find any such Form-5, allegedly signed and thumb marked by the appellant. This fact creates further doubt qua the recovery of drugs (P.1 to P.9) from the possession of appellant.
12. We may further observe here that section 18(1)(3) of The Drugs Act, 1976, and Para (1)(e) in Schedule V of Drug Regulatory Authority of Pakistan Act, 2012, enable the Drug Inspector to call any person to be present as witness in the course of search or seizure or in connection with any other matter where the presence of witnesses is necessary. Similarly, section 103 of the Code of Criminal Procedure (Act V of 1898) envisages that the officer or other person at the time of making search or seizure under this Code shall call upon two or more respectable inhabitants of the locality in which the place to be searched is located to attend and witness the search and may issue an order in writing to them or any of them so to do and further that the search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person signed by such witnesses.
Since the above-referred provisions of The Drugs Act, 1976 and Drug Regulatory Authority of Pakistan Act, 2012 with regard to the search and seizure of drugs are consistent with the provisions contained in section 103 of the Code of Criminal Procedure (Act V of 1898), therefore, the latter provisions are also fully applicable to the case in hand in the light of section 18(2) of The Drugs Act, 1976 as well as Para (2) in Schedule V of Drug Regulatory Authority of Pakistan Act, 2012, under the heading of Power of Inspectors, which are reproduced hereunder for the purpose of clarity:- "Section 18(2) of The Drugs Act, 1976:-
(2) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), in so far as they are not inconsistent with the provisions of this Act, shall apply to searches and seizures made under this Act.
Para (2) in Schedule V of Drug Regulatory Authority of Pakistan Act, 2012:-
(2) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), insofar as they are not inconsistent with the provisions of this Act and The Drugs Act, (XXXI of 1976), shall apply to searches and seizures made under this Act."
While replying to arguments, learned Deputy Prosecutor General could not controvert that Maqbool Hussain, Drug Inspector (PW.1) had not associated any person from the locality to witness the proceedings of search of appellant's premises as well as seizure of drugs (P.1 to P.9) as mandated in the aforementioned provisions of law, but in order to coverup this critical loophole in the case of prosecution, he invited our attention to a note given by Maqbool Hussain, Drug Inspector (PW.1) at the top of Form-5 (Exh.PA) to the effect that no person from the local vicinity came forward as witness even on his request. We have analyzed the statement of Maqbool Hussain, Drug Inspector (PW.1), in which he has not uttered a single word to the effect that he had called any respectable inhabitant of the locality before searching the premises of the appellant and seizing drugs (P.1 to P.9) from there. Similarly, nothing is available on the record that Maqbool Hussain, Drug Inspector (PW.1) had pressed into service the provision of section 103(5) Cr.P.C. against the person(s) who had allegedly refused to join the recovery proceedings at his request. What to say about the note given at the top of Form-5 (Exh.PA), when Maqbool Hussain, Drug Inspector (PW.1) himself has stated during his cross-examination that except two patients, nobody else was present when he visited the premises and he had even not bothered to inquire the names of said two persons nor they told their names to him. In this context, Abdul Wahid, Naib Qasid (PW.2) also categorically stated during his cross-examination as under:- "We do not call any neighbor to associate the visit of the Drug Inspector."
Keeping in view the above state of affairs, no doubt is left in our minds that the Drug Inspector (PW.1) while effecting the recovery of drugs (P.1 to P.9) had violated the provisions of section 103 Cr.P.C. section 18(1)(3) of The Drugs Act, 1976, and Para (1)(e) in Schedule V of Drug Regulatory Authority of Pakistan Act, 2012, benefit of which must be given to the appellant. Reliance is placed on the case-law titled as "Muhammad Ismail and others v. The State" (2017 SCMR 898).
13. Last but not the least, it was throughout the stance of the appellant that he was grilled in this case only upon the whims of Abdul Wahid, Naib Qasid of Chief Executive Office (Health), Rahim Yar Khan (PW.2) as he (PW.2) had his own axe to grind against the appellant due to some political as well personal grudge and in this regard, he (PW.2) also stated during his cross-examination that he was resident of Mouza Ali Muhammad Tehsil and District Rahim Yar Khan, which is adjacent to Chak No.112/P, Tehsil and District Rahim Yar Khan, where the appellant used to reside and he (PW.2) further destructively stated during his cross-examination that in this case, he had specially accompanied the Drug Inspector (PW.1), therefore, we are of the view that the existence of some element of false involvement of the appellant with some ulterior motive cannot be ruled out.
14. Having considered all the pros and cons of this case, we have come to an irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is by now well-established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs, but in this case, the prosecution has failed to discharge its responsibility. Even the very genesis qua initiation of prosecution against the appellant has been badly shaken on account of non-compliance of relevant provisions of law. It goes without saying that if there is single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused. Reliance is placed upon the case-law titled as "Naveed Asghar and two others v. The State" (PLD 2021 SC 600), wherein the Supreme Court of Pakistan has been pleased to observe as under-- "33....The prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession. The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence, and is deep rooted in our jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments [hudood] when there are doubts"; and" Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment". A three-member Bench of this Court has quoted probably latter part of the last mentioned saying of the Holy Prophet (peace be upon him) in Ayub Masih v. State in the English translation thus: "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
Further guidance can also be sought form the case-laws titled as "Muhammad Riaz v. Khurram Shahzad and another" (2024 SCMR 51) "Muhammad Nawaz & another v. The State and others"
(2024 SCMR 1731) and "Rehmat Ullah & 2 others v. The State & others" (2024 SCMR 1782).
15. For the foregoing reasons, Criminal Appeal No.577 of 2022 filed by Muhammad Ramzan appellant is accepted, resultantly the convictions and sentences awarded to him by the trial court vide judgment dated 17.10.2022 are set aside and he is acquitted of the charges leveled against him while extending the benefit of doubt in his favour. He is present in the Court on bail by way of suspension of his sentence, therefore, his surety stands discharged from the liability of bail bonds.