AAMIR HUSSAIN alias MOTA Versus State
TARIQ SALEEM SHEIKH, J .---This appeal under section 48 of the Control of Narcotic Substances Act, 1997 (the "Act"), is directed against judgment dated 4.12.2018 passed by the learned Sessions Judge, Layyah, in case FIR No.94/2018 dated 25.2.2018 registered at Police Station City Layyah, for an offence under section 9(c) of the Act.
2. Brief facts of the case are that on 25.2.2018 at about 07:10 p.m. Complainant Irfan Iftikhar/SI (PW-5) was on patrol duty with other police officials near GPO Chowk when he received a secret information that Aamir Hussain alias Mota (the Appellant) was selling charas in front of his house in Mohallah Arainanwala. On this tip-off he conducted a raid, nabbed the Appellant and recovered 1430 grams charas and Wattak money of Rs.350/- from him. He sent complaint Exh.PA in respect of this incident to the police station through Hasnain Raza 193/C on the basis of which Muhammad Razzaq/ASI (PW-1) registered FIR No.94/2018 Exh.PA/1. The investigation of the case was entrusted to Muhammad Umar Khan/SI (PW-4) and then on his transfer to Fazal Hussain/SI (PW-3) who found that the Appellant had committed the offence. Report under section 173, Cr.P.C. was submitted accordingly. On 7.5.2018 the learned trial Court indicted the Appellant who denied the charge and claimed trial.
3. The prosecution examined six witnesses to prove its case Irfan Iftikhar/SI (PW-5) was the Complainant of the case. He and Sajjad Bashir/ASI (PW-6) testified about the recovery of contraband charas and Wattak money of Rs.350/- from the Appellant. Irfan Iftikhar/SI (PW-5) also deposed about depositing of the sample parcel at the office of the Punjab Forensic Science Agency (PFSA) for chemical analysis. Zafar Iqbal 106/HC (PW-2) was the Moharrar of the police station who testified about safe custody of the case property in the Malkhana. The Investigating Officers, Muhammad Umar Khan/SI (PW-4) and Fazal Hussain/SI (PW-3), gave details of their investigation. In documentary evidence the prosecution inter alia produced the report of the PFSA Exh.PE.
4. In his statement under section 342, Cr.P.C. the Appellant refuted the prosecution evidence and professed innocence. He maintained that on 24.2.2018 he went to Saddar Bazaar with his friend Waseem Ahmad Khan when all of a sudden Irfar Iftikhar/SI, Sajjad Bashir/ASI, Umar Draz/ASE and other constables emerged in plain clothes. They searched him but he had nothing illegal which they could recover. They got annoyed and started torturing him. In the meanwhile, a number of people gathered at the site and started questioning the police officials whereupon they took him to the police station. They Appellant further stated that as a result of torture he got seriously injured and when they noticed his injuries they registered a false case against him to save their skin. On 26.2.2018 when Sajjad Bashir/ASI produced him before the Area Magistrate for remand he made an application to him for his medical examination which was accepted. Subsequently, his family made various applications to police high-ups and he moved a petition under section 22-A, Cr.P.C. before the Ex-Officio Justice of Peace, Layyah, for holding an inquiry against police but it was not held. The Appellant further stated that respectables of the society appeared before the Investigating Officer and submitted their affidavits that he was innocent but he did not consider them. He produced documents Exh.DA to Exh.DG and Mark-A to Mark-G in support of his contentions. However, he neither got his statement recorded under section 340(2), Cr.P.C. nor examined any witness in his defence.
5. On the conclusion of trial, vide judgment dated 4.12.2018, the learned trial Court convicted the Appellant under section 9(c) of the Act and sentenced him to rigorous imprisonment for four years and six months with fine of Rs.20,000/- and in default thereof to undergo simple imprisonment for a further period of five months. However, benefit of section 382-B, Cr.P.C. was extended to him. Aggrieved, the Appellant has filed this appeal before this Court.
6. In support of this appeal, the learned counsel for the Appellant contended that the Appellant was innocent and the police had falsely implicated him in this case due to ulterior motives. He maintained that the prosecution had failed to prove its case against him beyond doubt. There were glaring contradictions in the statements of the witnesses which made them untrustworthy. More importantly, safe custody of the sample parcel and its safe transmission to the PFSA was not established which vitiated report Exh.PE. He prayed that this appeal be accepted and the Appellants may be acquitted.
7. On the other hand, the learned Deputy Prosecutor General controverted the above contentions and supported the impugned judgment. He contended that the prosecution witnesses were coherent and inspired confidence. There was no discrepancy or contradiction in their statements which could benefit the Appellant. Further, the ocular account was corroborated by positive report of the PFSA Exh.PE. He maintained that the contention of the learned counsel for the Appellant that safe custody of the case property had not been proved was fallacious and contrary to record. The learned Law Officer prayed for dismissal of this appeal.
8. Arguments heard. Record perused.
9. The Complainant, Irfan Iftikhar/SI (PW-5), deposed that on 25.2.2018 at about 7:10 p.m. he was on patrol duty with other police officials near the GPO Chowk when he received a secret information that the Appellant was selling charas in front of his house in Mohallah Arainanwala and that he could be apprehended if prompt action was taken. He immediately conducted a raid at the said place with his contingent and nabbed the Appellant and recovered 1430 grams charas and Wattak money of Rs.350/- from him. He further testified that he drew 71.5 grams sample out of the recovered substance and prepared sealed parcel thereof for chemical analysis and secured the residue in a separate parcel and seized both the parcels along with Wattak money vide Recovery Memo Exh.PC. After that he sent the complaint Exh.PA to the police station for registration of FIR. Sajjad Bashir/ASI (PW-6) fully corroborated the statement of Complainant Irfan Iftikhar/SI (PW-5). While going through the complaint Exh.PA we have noticed material overwritings thereon which make it dubious. The learned Deputy Prosecutor General contended that the said overwritings had no bearing on the case because FIR No.94/2018 Exh.PA/1 was in accord with the complaint Exh.PA. We might have agreed with him but there is another issue which has attracted our attention. We have also noticed that PWs Irfan Iftikhar/SI and Sajjad Bashir/ASI stated that a sample parcel of 71.5 grams was drawn from the recovered substance for chemical analysis while the report of the PFSA Exh.PE shows that the sample weighed 117.15 grams. It is now well settled that the report of the Chemical Analyst is of fundamental importance in narcotics cases. As such, the prosecution is obligated to prove safe custody and safe transmission of the sample parcel from the crime scene to the laboratory. Any break in the chain would uproot its case. In Ikramullah v. State (2015 SCMR 1002) the Hon'ble Supreme Court of Pakistan held that where safe custody or safe transmission of the alleged drug is not established, the report of the Government Analyst becomes doubtful and unreliable. This view was reiterated by the apex Court in The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039). Lately, in Khair-ul-Bashar v. The State (2019 SCMR 930), the apex Court further explained:
"At the very outset we have noticed that the Report of the Punjab Forensic Agency dated 18.02.2016 is deficient in material particulars, i.e. while it mentions the names of the three tests performed, it does not provide results of these tests (except a consolidated result) and there is no mention of the test protocols applied in carrying out the said tests. In State v. Imam Bakhsh (2018 SCMR 2039) while discussing Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 ("Rules") this Court held that the information required under the said Rule is mandatory. Hence, the Report of the Government Analyst, prepared in consequence of Rule 6, must provide for (i) tests and analysis of the alleged drug (ii) the results of the test(s) carried out and (iii) the test protocols applied to carry out these tests. These three elements form the fundamental and the core elements of a valid Report prepared by a Government Analyst. Non-compliance of Rule 6 and absence of any of these mandatory elements/requirements frustrates the purpose and object of the Act thereby diminishing the reliability and evidentiary value of the Report... Section 36(1) of the Act also mandates that the Report must be in the prescribed form. This Court, in Ikramullah, while discussing the scope of Rule 6 of the Rules held that "...a complete mechanism is to be adopted by the Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to the necessary protocols and mentioning the tests applied and their results...Section 36 of the Control of Narcotic Substances Act, 1997 requires a Government Analyst to whom a sample of recovered substance is sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in "the prescribed form" and, thus if the report prepared by him is not prepared in the prescribed manner then it may not qualify to be called a report in the context of Section 36 of the Control of Narcotic Substances Act, 1997 so as to be treated as a "conclusive" proof of recovery of narcotic substance from an accused person."
10. In view of the fact that reliable report of the Government Analyst is not available to support the evidence of recovery furnished by Complainant Irfan Iftikhar/SI (PW-5) and Sajjad Bashir/ASI (PW-6), conviction of the Appellant cannot be sustained. Hence, we accept this appeal and set aside the impugned judgment 4.12.2018. The Appellant is acquitted of the charge. He shall be released from jail forthwith if not required in some other criminal case.
ADN/A-20/L Appeal allowed.