MUHAMMAD JAHANGIR Versus State
TARIQ SALEEM SHEIKH, J.- --The Appellant, Muhammad Jahangir and his co-accused Ghuiam Sarwar, were tried by the learned Special Judge (CNS), Multan, in case FIR No.16/2011 dated 30.4.2011 registered at Police Station ANF, Mu!tan, who, vide judgment dated 31.7.2012, acquitted Ghulam Sarwar of the charge but convicted Muhammad Jahangir under Section 9(c) of the Control of Narcotic Substances Act, 1997 (the "Act"), and sentenced him to rigorous imprisonment for three years with fine of Rs.5,000/- and in default thereof to undergo simple imprisonment for a further period of one month. However, benefit of Section 382-B, Cr.P.C. was extended to him.
2. Briefly, the prosecution case is that on 30.4.2011 Complainant Muhammad Ikram/AD (PW-2) made a complaint (Exh.PD) to Moharrar of Police Station ANF, Multan, stating that he received a secret information that Appellant Muhammad Jahangir and Ghulam Rasool (since acquitted), who were engaged in drug trafficking, would come to Chowk Shah Abbas, Multan, the same day at about 9:00 p.m., to supply narcotics to their agent. Thereupon, he constituted a raiding party consisting of himself and other officials. At about 8:30 p.m., they along with the informer reached the said place and set up a picket. At 9:00 p.m., the suspects were seen coming from Mumtaz Abad Chowk and stopped near the Habib Metropolitan Bank. On the pointing out of the informer the Complainant and his team nabbed them. The one who was carrying a shopping bag identified himself as Muhammad Jahangir while the other told his name as Ghulam Rasool. Muhammad Ikram/AD recovered three packets of charas weighing 1200 grams each (total: 3.600 kilograms) from the shopping bag. He drew 10 grams from every packet and prepared three sealed sample parcels for chemical analysis and secured the remaining bulk P-1 in the same shopping bag P-2 and seized all the four parcels vide Recovery Memo Exh.PA. On the Appellant's personal search cash amounting to Rs.175/- P-3, some visiting cards P-4 wallet P-5 and CNIC P-6 were recovered which Complainant Muhammad Ikram/AD seized vide Recovery Memo Exh.PB. Likewise, personal search of Ghulam Sarwar yielded Rs.1045/- in cash P-7, Nokia mobile phone with SIM P-8, watch P-9, pocket diary P-10, visiting cards P-11, CNIC P-12 and driving licence P-13 which he took in his possession vide Recovery Memo Exh.PC. On the basis of complaint (Exh.PD) Riaz Hussain, HC/Moharrar (PW-3) registered FIR No.16/2011 (Exh.PD/1).
3. After due investigation report under section 173, Cr.P.C. was prepared and submitted to the Court. On 7.9.2011, the learned trial Court indicted the Appellant and his co-accused who pleaded not guilty and claimed trial. In order to prove its case the prosecution examined four witnesses, namely, Sajjad Hussain Pasha/ASI (PW-1), Complainant/ Muhammad Ikram/AD (PW-2), Riaz Hussain/HC (PW-3) and Niaz Afzal/HC (PW-4). In documentary evidence, the prosecution inter alia produced report of the Chemical Examiner Exh.PF.
4. After the close of prosecution evidence the learned trial Court recorded the statements of the Appellant and his co-accused Ghulam Sarwar under Section 342, Cr.P.C. and confronted them with all the incriminating material that was brought against them during the trial. They refuted it and professed innocence. They maintained that they were falsely implicated in this case by the AMF authorities to show their "Karwai". They neither opted to make statements on oath under Section 340(2) Cr.P.C. nor examined any witness in their defence.
5. On the conclusion of the trial, vide impugned judgment dated 31.7.2012, the learned Special Judge acquitted co-accused Ghulam Sarwar but convicted and sentenced the Appellant as mentioned hereinabove.
6. The learned counsel for the Appellant contended that the prosecution had miserably failed to prove the charge against the Appellant. There was gross misreading/non-reading of evidence by the learned trial Court which had caused serious miscarriage of justice. He argued that, firstly, the alleged recovery was made at a thoroughfare but no independent witness was cited by the prosecution. Secondly, no contraband was recovered from the Appellant and the police had foisted charas on him. Thirdly, the safe custody and transmission of the case property was not proved by the prosecution which uprooted the prosecution case. Lastly, the report of Chemical Examiner Exh.PF in respect of the samples did not meet the requirement of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which was mandanory. The learned counsel prayed that this appeal be accepted and the Appellant may be acquitted.
7. On the other hand, the learned Deputy Prosecutor General opposed this appeal. He contended that the recovery witnesses had no ill-will or any animosity against the Appellant. They could not plant such a huge quantity of contraband on the Appellant on their own. He maintained that the report of Chemical Examiner Exh.PF in respect of the recovered material was positive which reinforced the prosecution case. He concluded his arguments with the submissions that since the prosecution had proved its case beyond reasonable doubt, this appeal may be dismissed.
8. Arguments heard. Record perused.
9. According to the prosecution, the Appellant was apprehended from near Habib Metropolitan Bank, Chowk Shah Abbas, Multan, and three packets of charas weighing 3.600 kilograms were recovered from him. Out of the recovered charas the Complainant drew 10 grams from each packet and prepared three sealed samples for chemical analysis and preserved the remaining bulk through in a separate plastic bag. The prosecution produced Complainant Muhammad Ikram/AD (PW-2) and Niaz Afzal/HC (PW-4) to prove the said recovery. However, conviction cannot be recorded against the Appellant on the basis of their testimony unless they are supported by positive report of the Chemical Examiner drawn in accordance with law. The report of the Chemical Examiner Exh.PF does not contain details of the protocols applied and is thus violative of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001.
10. In The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), the Hon'ble Supreme Court of Pakistan has held that Rule 6 (ibid), is mandatory to the extent that full protocols ought to be mentioned in the report of the Chemical Examiner and its non-compliance renders the report inconclusive and unreliable. Relevant excerpt is reproduced hereunder:
"It [Rule 6] provides that the Report of the Government Analyst, after the test and analysis, is to furnish the result together with full protocols of the test applied. The accuracy of test and analysis and the correct application of the full protocols alone can determine if the recovered substance is a narcotic drug, or a psychotropic or controlled substance. "Protocol" means an explicit, detailed plan of an experiment, procedure or test or a precise step-by-step description of a test, including the listing of all necessary reagents and all criteria and procedures for the evaluation of the test data. Rule 6 requires that full protocols of the test applied be part of the Report of the Government Analyst. Every test has its protocols, which are internationally recognized and a test without the observance of its protocols has no sanctity. 'Full Protocols' include a description of each and every step employed by the Government Analyst through the course of conducting a test. Hence, the Report under Rule 6 must specify every test applied for the determination of the seized substances with the full protocols adopted to conduct such tests."
11. In view of the fact that reliable chemical examiner report is not available to support the evidence of recovery furnished by Complainant Muhammad Ikram/AD (PW-2) and Niaz Afzal/HC (PW-4), conviction of the Appellant cannot be sustained.
12. In the result, we accept this appeal and set aside the impugned judgment dated 31.7.2012. The appellant is acquitted of the charge. The sentence of the appellant was suspended by this Court vide order dated 8.11.2012 passed in Criminal Miscellaneous No.1 of 2012 and he is not bail. His surety is discharged.
ADN/M-44/L Appeal allowed.