' RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment dated 20-4- 2000 passed by the Special Court, Control of Narcotic Substances, Karachi Division in Special Case No.697 of 2000 (The State v. Jameel Khan Afridi), by which the learned Judge had convicted the appellant under section 9(c), Control of Narcotic Substances Act, 1997 (hereinafter referred to as "Act, 1997") and sentenced him to suffer imprisonment for life and fine of Rs.100,00,00 (Rupees Ten Lac), or in default thereof to suffer R.I. For 2 years, with benefit of section 382-B, Cr.P.C.
2. Brief facts giving rise to the present appeal are that on 11-2-1999, the complainant SIP Sajjad Ali of Anti-Narcotics Force Karachi alongwith his subordinates staff was on patrolling duty. At 5-30, a.m.
They reached at Baloch Hotel, Liaqatabad Karachi. They found a car bearing Registration No.AAC.991 coming from Hassan Square side, which was signaled to stop. The driver stopped the car. The police party went there. On inquiries, the driver who was sitting alone in the car disclosed his name as Jamil Khan Afridi, the present appellant. The complainant found some nylon bags lying on the rear and front foot mats of the car. They were 5 in number. The said nylon bags wereopened. Each bag contained 20 slabs of Charas and each slab weighed 1 Kg. On further search of the car 5 nylon bags were secured froth the trunk of the car, each bag contained 20 slabs of Charas and each slab weighed 1 Kg. The total weight of the Charas was 2000 Kgs. From each bag a slab weighing a Kg. Was taken out for sample purpose and the said 10 slabs were sealed at the spot. The remaining property, containing 19 slabs in each bag was separately sealed.
From the search of the appellant, cash of Rs.400 and a copy of NIC were secured. A registration book and driving licence of the appellant were also secured from the car. The appellant was arrested and such Mashirnama of arrest and recovery were prepared in presence of H.C. Naeem Khan and P.C. Abdul Waheed of Anti-Narcotics Force, Karachi. The appellant and the property were brought to the Police Station Anti-Narcotic Force where the F.I.R. Was lodged. The samples of the property were sent to Chemical Analyser for examination and report. The Chemical Analyser reported that the property was Charas. After completing the investigation, the appellant was challaned in the Court.
3. On 17-4-2000, a charge under section 6/9 of Act, 1997 was framed against the appellant but he pleaded not guilty.
4. In support of the case, the prosecution examined the following two witnesses:-- S.NO.P.W.NO.NAME OF WITNESSSUMMARY Of EVIDENCE 1 P. W .1 H.C. Naeem KhanMashir of arrest and recovery. He supported the case.
2 P. W .2 SIP Sajjad Ali Complainant. He also supported the case and implicated the appellant.
He produced the Chemical Analyser's report which shows that 10 sealed parcels were received by chemical analyser containing 26 slabes weighting 10305 grams; out of which, 50 grams of Charas were consumed in analysis. The report is in positive. He also produced the order of the Court by which the remaining property was ordered to be destroyed with directions that 10 samples of 200 grams from each packet. Be taken out from the total substance recovered and the same be sealed in presence of the Judge and the remaining substance was directed to be destroyed in his presence.
5. The appellant in his statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. He claimed to be innocent and falsely involved in the case at the instance of one Muhammad Ilyas who was friend of the Investigating Officer. He specifically denied the recovery of any material from the possession but alleged that he was arrested from his house.
6. The appellant did not examine himself on oath or led any evidence in his defence.
7. After considering the material available on the record, the learned trial Judge convicted the appellant, as mentioned above, under the impugned judgment.
8. We have heard the Advocate for the appellant, special prosecutor and with their assistance perused the record of this case very carefully.
9. Learned Advocate for the appellant has stated that sample secured from the Wardat was not sent to the Chemical Analyser, but a different property was sent to him for examination and report, therefore, the report of Chemical Analyser carries no weight. He has further stated that learned trial Judge had ordered for destruction of property with directions that a sample from the property be taken out in is presence and the remaining property be destroyed in his presence also but the said order was not complied with before obtaining the sample and destruction of the property nor the certificate as required under section 516-A, Cr.P.C. Was issued or produced before the Court; that no official or any person has been examined to prove the destruction of the property in his presence or taking out sample from it, therefore, sample produced in the Court cannot be deemed to be the property of this case. He has further argued that the appellant was seriously prejudiced by the order of destruction of the property as neither any notice was given to him nor he was heard by the trial Court before pasing the said order; that both the witnesses examined by the prosecution specifically stated that the sample from the destroyed property was not taken in their presence nor the entire property was destroyed in their presence as such the sample produced by the prosecution as article "B" has not been proved to be the property of this case.
10. On the other hand ,the learned Special Prosecutor, A.N.F. Has stated that the sample secured from the Wardat article "A" was duly sealed at the said place and the said property was sent to ChemicalAnalyser who found the weight of the property to be about 10 K.Gs. Which is corresponding with the weight shown by the P.Ws. At the time of sealing the sample. He has further stated that the remaining property was destroyed as per order of the Trial Court, therefore, the sample article "B" produced in the Court would be deemed to be entire property as provided under section 516-A, Cr.P.C. He has further argued that non-issuance of certificate about the destruction of the property is merely an irregularity which can be cured under section 537, Cr.P.C. On the said proposition he has relied upon an unreported judgment of this Court delivered in a case Sardar Pervez Akhtar v. The State being Criminal Appeal No.157 of 2001, decided on 11-2-2002. He has further stated that the prosecution case has been fully supported and corroborated by the witnesses examined in this case, who have specifically implicated the appellant with the commission of this crime. He has supported the impugned judgment.
11. We have given due consideration to the arguments and find that both the witnesses have categorically deposed in their statements that a slab was taken out from each 10 bags and sealed at the Wardat; whereas the remaining property was also sealed at the spot. The said 10 slabs were sent to Chemical Analyser for examination and report. The said property has been produced as article "A". The prosecution have also produced the Chemical Analyser Report as Exh.E/5. At page 2 of the. Said report, the description of the article contained in the parcels have been mentioned as under: "Ten (10) sealed' brown paper parcels each with seals, seven out of the ten parcels each parcel containing two (2) greenish black semi-soft slabs with smell like Charas wrapped in plastics, remaining three parcels, each containing four .Greenish black semi-soft slabs with smell like Charas wrapped in plastic."
12. The net weights of the contents of the slabs have been shown 10305.000 Grams. As such, the number of slabs secured from 10 parcels came to 26 slabs. Whereas, the case of the prosecution is that only 10 slabs were sent to Chemical Analyser, but this fact has not been supported or corroborated from the Chemical Analyser report.The learned Special Public Prosecutor was asked to explain the above position btu he was unable to do so. He only said that the weight of the contents of the sample is same. There is difference of 305 grams in between the weight shown by the witnesses and the Chemical Analyser. The Chemical Analyser has sophisticated weighing machines through which exact weight can be taken, therefore, such type of discrepancy can occur in the weight given by the police and the Chemical Analyser.
13. The important question in this case is the number of slabs. From the Chemical Analyser's report it is clear that 7 parcels contained 2 slabs in each parcel; whereas in the remaining 3 parcel, 4 slabs were found in each parcels. Thus the total slabs contained in the 10 parcels were 26. Whereas, the case of the prosecution is that 10 parcels containing only one slab in each parcel were sent to Chemical Analyser. How this discrepancy has occurred? It has not been explained by the prosecution during the course of evidence. It was in the knowledge of the prosecution that the report of the Chemical Analyser was not tallying with the Mashirnama of sealing of the property but even then the prosecution did not care to examine the Chemical Analyser or any other person to explain as to how 7 parcels containing two slabs and 3 parcels containing 4 slabs each were received by the Chemical Analyser. It is not the case of the prosecution nor it has been argued that the slabs were broken. Had the case been such, then the Chemical Analyser could have noticed the crack in the slabs and would have not mentioned them as separate pieces of slabs. The Chemical Analyser was so specific that he had counted the slabs in each bag and gave their number. It is also apparent that each slab found in the parcels opened by the Chemical Analyser did not weight 1 Kg., as claimed by the witnesses. The total weight of 26 slabs was 10305 Grams. It is pertinent to point out that in the application for destruction of the property lying at the Police Station A.N.F., the Deputy Director (Law) ANF, Karachi showed the weight of the said property as 200 Kgs. If the samples of the property weighting 10 Kgs. Were taken out from the 200 Kgs. Secured at the Wardat, then the property available at Police Station ANF would have not been 200 Kgs, but it would have been 190 Kgs. This discrepancy has put the Court on guard. As such a doubt has been created with regard to the sample of the property sent to the Chemical Analyser, as to whether B it was same property which was taken as sample at the place of incident or not. In such situation a doubt has to be resolved in favour of the accused.
14. As regards the second submission of the learned Advocate for the appellant that the property was destroyed without giving notice or hearing the appellant and the non-compliance of the order of the trial Court by the officials who destroyed the remaining property. In this connection it will be advantageous to reproduce section 516-A, Cr.P.C. Which reads as under:-- "516A. Order for custody and disposal of property pending trial in certain cases.---When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody ofsuch property pending the conclusion of the inquiry or trial, and, if the property is subjected to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of: [Provided that if property consist of explosive substances, the Court shall not order it to be sold or handed over to any person other than a Government Department or officer dealing with, or to an authorized dealer in such substances:] [Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under Dangerous Drugs, Act, 1930 (H of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and proauction before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf: ' Provided also that such samples shall be deemed to be whole of the property in any inquiry or proceedings in relation to such offence before any authority or Court].
15. A perusal of section 516-A Criminal Procedure Code reveals that if a property regarding which an offence appears to have been committed or which appears to have been used for the commission of an offence, is produced before any Criminal Court during any inquiry or trial, it empowers the Court to pass orders, pending such inquiry or trial, for the proper custody of the property, but if the property is subject to speedy or natural decay the Court may order it to be sold or otherwise disposed of after recording such evidence as thinks fit.
16. In the year 1981 first proviso to the section 5164.A, Cr.P.C. Was added vide Ordinance XXXIII of 1981 whereas second and third provisos to the said section were added vide Act VII of 1993. Under the first proviso the Court has been debarred from ordering the property, consisting of explosive substances, to be sold or handed over to any person other than a Government Department or Officer dealing with, or to any authorized dealer in such substances.
17. The second proviso deals with the property which is dangerousdrug, intoxicant, intoxicating liquor or any of the narcotic substance which is seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1913), the Custom Act, 1969 (IV of 1969), Prohibition (Enforcement of Hadd)
Order,1979 (P.O. IV of 1979) or any other law for the time being in force. It empowers the Court to order suo motu or on an application and under its supervision and control, to obtain and prepare samples of the property for safe custody and production before it or to any other Court and cause destruction of the property under a certificate issued by it in that behalf.
18. The third proviso provides that the sample taken under the second proviso from the property shall be deemed to be the whole of the property in an inquiry or proceedings in relation to such offence before any authority or Court.
19. For the purpose of present case the second and third provisos are relevant. In the second proviso following facts are essential:
(a) A discretion has been vested in the Court to destroy the property.
(b) The Court has to exercise such discretion on an application or of its own motion.
(c) The Court is required to take a sample or samples from the whole property before its destruction.
(d) The Court is required to take the sample or samples of the whole property and cause destruction of the remaining property under its supervision and control.
' The meanings of the words "Supervision", "Control" and "Cause" have been given in various dictionaries and superior Courts' judgments. Some of them are as under:--
(i) "Supervision"
' Black's Law Dictionary: ' Supervision. An act of occupation of supervising; inspection.
' American Heritage Talking Dictionary: ' Supervision. The act, process, or function of supervising.
' The word supervision has been derived from word "supervise". Its meaning, as per Chambers 21st Century Dictionary, is as under: "The word 'control' is synonymous with superintendence, management or authority to direct, restrict or regulate. [Shamrao] "Superviseverb to be over all incharge of (employees, etc) to oversee (atask, project, etc)."
' The word "supervision" has been defined in Judicial Dictionary 13th Edition by K.J Aiyar as under: "Supervision, in the ordinary dictionary sense, `to supervise' means to direct or oversee the performance or operation of an activity and to oversee it, watch over and direct. It is work under eye and gaze of someone who can immediately direct a corrective w,,,e1 tender advice. In the textual sense 'supervision' of the principal employer or his agent is on 'work' at the places envisaged and the word 'work' can neither be construed so broadly to be final act of acceptance or rejection of work, nor so nafrowly as to be supervision at all times and at each and every step of the work. When the employee is put to work under the eye and gaze of the principal employer, or his agent, where he can be watched secretly, accidentally, or occasionally, whole the work is in progress, so as to scrutinize the quality thereof and to detect faults therein, as also put to timely remedial measures by directions given, finally leading to the satisfactory completion and acceptances of the work, that would be supervision for the purpose of S.2(9) of the Employees State Insurance Act 1948 (CESC Ltd v. Subhash Chandra Bases (1992)] SCC 441-454, AIR 1992 SC 573).
(ii) "Control"
Black's Law Dictionary: ' Control, v. To exercise restraining or directing influence over.To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern.
American Heritage Talking Dictionary: Control.
1. To, exercise authoritative or dominating influence over; direct.
2. To hold in restraints, check, ' The word `control' has been defined in the Judicial Dictionary 13th Edition by K.J Aiyar as under: ' Vithal Cooperative Bank Ltd. v. Kassargod Pandhuranga, Mallaya 1972 UJ (SC) 204)"
' The word "control" has been defined by the Hon'ble Supreme Court of Pakistan in a case of G.
Rasool v. M. Hayat (PLD 1984 SC 385) as under: "A comprehensive term, of well-understood meaning, having various significations and subject to different limitations, but having no legal or technical meaning distinct from that given in the popular acceptation. It has been said that, when broadly used, the term may embrace every form of control, actual or legal, direct or indirect, negative or affirmative., and under particular circumstances, has been held to import complete control of the full or unqualified right to control and direct legal control, potential control, potential control or direction, or the right of control as distinguished from actual physical control."
(iii) "Cause"
Concise Oxford dictionary Ninth Edition: "Cause:- n.1. a that which produces an effect, or gives rise to an action, phenomenon, or conditions. b. a person or thing that occasion something. c. a reason or motive; a ground that may be held to justify the same thing. v. Tr.
1. Be the cause of, produce, make, happen."
(e) A procedure has been provided for the destruction of property,
(f) the Court is required to issue a certificate in that behalf. The word "certificate".Has been defined in Chamber's 21st Century Dictionary as under:-- "Certificate noun. An official document that formally acknowledges or witnesses a fact." .
(g) The purpose of taking out the sample or samples from the whole of the property is to produce the sample or samples before the Court ordering destruction or any other Court as a case property in lieu of the whole property.
20. The third proviso shows that on the production of such sample before the Court in relation to the inquiry of proceedings of the offense, the sample will represents he whole property as if the whole property has been produced in the Court.
21. It is pointed out that generally entire property secured or seized by the investigation agencies is required to be produced in the Court but the second and third provisos to section 516-A, Cr.P.C. Are exceptions to the general rule. Thus the discretion vested in the Court under the second proviso is to be exercised judicially by giving notice and after taking into consideration the points raised by the parties and safeguarding their valuable rights.
22. The procedure provided under the second proviso should not be taken lightly or merely a formality but it should be strictly construed and applied for the simple reason that the accused might claim that the property is not a narcotic substance or that the property, is not tallying with the Mashirnama of recovery or the evidence produced in the Court, or that the property may be sent to the chemical analyser for examination and report etc. Thus if the required procedure is not adopted for destruction of the property then the accused might be prejudiced in his defence or his valuable and legal rights may be taken away. In such a situation the law is very clear that the penal provision should be strictly construed.
23. With regard to procedural requirement of the Criminal Law the Hon'ble Supreme 'Court of Pakistan in a case Abdul Sattar v. Crown reported in PLD 1953 FC page 145 and at page 169 has observed as under:--
24. "Procedural requirements of the criminal law are not mere formalities. Underlying the rules of procedures is an all pervading care to ensure the liberty of the subject and the duedispensation of justice. Certain observation appearing in a number of judgments cited during the argument in this case appear to me to be likely to defeat this purpose by undue enlargement of the powers of Magistrates on the basis of assumptions which are not well founded in law. Some of these views may be interpreted so as to enlarge the powers of a transferee Magistrate beyond those with which he is invested e.g. To take cognizance on his own information or suspicion, of an offence appearing in the course of a pending proceedings, although he is not empowered to take cognizance in this manner. The rights of accused persons are also placed in jeopardy as a result of the acceptance of such views, e.g. Where on certain assumptions, a Magistrate who clearly takes cognizance of an offence otherwise than on the basis of a complaint or a police report, may yet be regarded as not taking cognizance on his own information or suspicion, and in consequence, the right of the accused to object to being tried by the person who was the first to form the opinion that facts existed showing that he hadcommitted any offence, is taken away. Any of the law which leads to consequence of this kind must, in my opinion, be rejected. It would violate for fundamental principle that penal laws must be interpreted strictly, and in favour of the subject not so as to deprive him of his legal-rights." (Underlined is ours to give emphasis).
24.. Even otherwise it is well-settled principle of law that if a particular thing is required to be done in a particular manner then it should be done in that manner or it should not be done at all.
25. In the present case, on 11-12-2000, Ahmed Saba Deputy Directory (Law) ANF, Karachi, moved an application for destruction of F case property viz 200 Kgs. Of Hashish. On the said application, without giving notice to the appellant but after hearing Special Prosecutor, the trial Court passed an order for the destruction of the property. The operative part of the order is as under:-- "It is, therefore, directed that 10 samples of 200 grams each packet be taken out from total substance recovered by the complainant lying at Police Station Regional District, ANF in bag and the same be sealed in presence of undersigned and rest substance be destroyed in presence of the undersigned."
26. Under section 14 Anti-Narcotic Force Act, 1997, the Deputy' Director of the ANF has been declared as ex officio public prosecutor but he cannot conduct the proceedings of the narcotic cases in the Court and deal with any matter connected therewith or ancillary thereto without specifically directed to do so by the -Director General. Section 14 of Anti-Narcotic Force Act, 1997 reads as under:-- "Member as Public Prosecutors.---Notwithstanding anything contained in the Code, all Directors, Deputy Directors and Assistant Directors of the Force, shall be ex officio public prosecutors in respect of all offences relating to narcotic and specified in clause. (a) of section 5, for trial before the Special Court or any other Court when so, directed by the Director-General and may conduct the proceedings in the said Court and deal with any matter connected therewith ancillary thereto."
27. No authority of Director General was produced before the trial Court empowering Ahmed Saba, Deputy Director (Law) Anti-Narcotics Force, Karachi .To move the application for the destruction of theproperty which is the matter connected and ancillary to the proceedings IG of the case.
28. Be that as it may, the application was granted on the same date without notice to the accused or hearing him. Further more, the official of ANF did not comply with the order of the trial Court in letter and spirit as the samples were neither taken nor sealed in the presence of the learned Judge nor the remaining property was destroyed in his presence. As such, the learned Judge was not able to issue the required certificate as provided under section 516-A, Cr.P.C. This shows that the ANF Authorities had not only violated the order of the trial Court but disobeyed the directions of the law as provided under section 516-A, Cr.P.C. With the result that a valuable piece of evidence was destroyed which has ultimately benefited the accused and has been saved from the clutches of law.
29. It has been noticed that the prosecution produced samples of Charas allegedly obtained from the whole property before the trial Court, as Article "B". It has been pointed out that the said samples were neither taken in presence of the learned Judge of Special Court Narcotics nor destroyed the remaining property in his presence, as such, the required certificate under section 516-A, Cr.P.C. Was not issued by the Court. In such situation, the prosecution was required to prove through evidence that property article "B" was sample of the whole property and the remaining property was destroyed.
30. But, no person from Anti-Narcotic Force was produced before the trial Court for giving evidence that the samples as per law and order of the trial Court were taken in his presence or sealed or that the property was destroyed in his presence. The said persons would have been competent to have produced the sample in the Court in lieu of the whole property as required under section 516-A, Cr.P.C. Both the P.Ws. Have admitted that neither the samples were taken nor sealed nor remaining property was destroyed in their presence. But in spite of that, the trial Court allowed the P.W.1 to produce the said sample in Court as article '13'. In such. Situation, the P.W.1 was not competent to produce the said property. Furthermore, without examining the persons before whom the samples were taken and the remaining property was destroyed, the samples produced before the trial Court could not be held to be the same property from which the samples were taken, or remaining property was destroyed. The certificate in terms of section 516-A, Cr.P.C. Issued by the Court would have only fulfilled the requirement of law and then only the samples produced in the Court would be deeded to be the whole property.
31. At one stage we also felt the necessity of sending the entire property to the Chemical analyser for examination and report so as to ascertain, whether the said property was Hashish or not. This necessity was felt in view of discrepancy appearing in the evidence of the prosecution witnesses and Chemical Analyser Report about the numbers of slabs but the Court could not do so because the samples article "B" were not proved to be the sample secured from the whole property of this case.
32. As regards the case of Sardar Pervez Akhtar (supra) relied by the learned Special Prosecutor ANF, the same is not applicable as the facts and circumstances of the said case are distinguishable from the facts and circumstances of this case.
33. After considering the material available on the record, we are of the considered view that the case of the prosecution is highly doubtful, therefore, the appellant is entitled for the benefit of doubt which is accordingly given to him. Consequently, the conviction and sentence awarded under the impugned judgment are set aside. The appellant is in custody. He should be released forthwith' if not required in any other custody case. The appeal is allowed.
34. A copy of the judgment be sent to the Director General Anti-Narcotic Force to initiate inquiry, fix responsibility on the person/persons who had destroyed the property in violation of the order of the trial Court and provisions of section 516-A, Cr.P.C. And for taking appropriate action as per law under intimation to this Court.