Arshad Mehmood S.O Manzoor Mian vs State

Stereo H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Crl. Appeal No.44-J of 2017 Arshad Mehmood. ...Vs... The State etc.

JUDGMENT

Date of hearing 27.05.2019.

Appellant by: Mr. Arif Hussain Tatla, Advocate.

State by: Mr. Zafar Iqbal Chohan, Special Prosecutor for ANF.

Aalia Neelum, J.- The appellant-Arshad Mehmood son of Manzoor Mian, caste Gondal, resident of Village Rukeh Tehsil Malikwal, District Mandi Baha-ud-Din, was involved in case F.I.R No.12 of 2014, dated 17.05.2014, offence under Section 9(C) of the Control of Narcotic Substances Act, 1997, registered at Police Station A.N.F, District Faisalabad and was tried by the learned Judge Special Court CNSA, District Faisalabad. The learned trial court seized with the matter in terms of judgment dated 06.01.2017 convicted the appellant under Section 9(C) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo 10-years and 06-months rigorous imprisonment alongwith fine of Rs.50,000/- each and in case of default in payment thereof, to further undergo simple imprisonment for 08-months. The period continuously undergone by him in judicial lockup would be counted toward imprisonment and he was also given benefit of section 382-B Cr.P.C. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction through filing instant jail appeal bearing Crl. Appeal No.44-J of 2017.

2.The prosecution story as alleged in the F.I.R (Ex.PA/1) lodged on the complaint (Ex.PA) of Mumtaz Hussain Inspector (PW-3) is that on 17.05.2014, he (PW-3) alongwith Altaf Hussain HC/Driver (PW-4), Muhammad Shoaib/C (PW-5) and other officials of ANF was present near

Aslam Poultry Form Mandi Baha-ud-Din, Sargodha G.T. Road Salam in connection with the investigation of case titled “The State. Vs. Muhammad Razzaq”, where he (PW-3) received spy information that Arshad Mehmood, who was involved in the business of narcotics and on that day at about 1:30/2:00 p.m., he while boarding on motorcar bearing registration No.LEF- 4555 Toyota Corolla G.L.I would pass Salam Interchange and would go towards Faisalabad via Pindi Bhattian Motorway, having narcotics to supply the same to some of his customer. On this information, the complainant (PW-3) alongwith other officials on the instructions of high-ups, established a picket at Salam Interchange. At about 01:50 p.m. aforesaid car came from Mandi Baha-ud-Din side, in which one person was boarding and said car was stopped on the pointation of informer and person sitting on the driving seat was apprehended. On interrogation, said person disclosed his name as Arshad Mehmood (the appellant). On query about narcotics, he after some reluctance brought out 02-packets of “Charas” (P-1/1-2) weighing 1200- grams each, total 2.400 kilograms from underneath the driving seat and handed over the same to the complainant (PW-3). The appellant further disclosed that narcotics had also been concealed in both front doors of car and he (the appellant) himself brought out two packets of “Charas” (P-2/1-2) weighing 1200-grams each, total 2.400-kilograms, after removing internal sheet of right door and produced the same before the complainant (PW-3). Likewise, the appellant also brought out two packets of “Charas” (P-3/1-2) weighing 1200-grams each, total 2.400-kilograms, after removing internal sheet of left door and produced the same before the complainant (PW-3). The appellant also produced before the complainant (PW-3) 12-bore repeater alongwith two magazines and two live cartridges lying on the rear seat of the car. The complainant (PW-3) took into possession the recovered narcotics through recovery memo Ex.PB. Out of the recovered substance, 10-grams charas from each packet was separated for chemical analysis. The complainant (PW-3) drafted complaint (Ex.PA) and sent the same through Muhammad Azeem constable to the Police Station for registration of the formal FIR (Ex.PA/1).

3.Thereafter, the investigation was entrusted to Mumtaz Hussain Inspector (PW-3)-the complainant, who being investigating officer of the case prepared the site plan (Ex.PD) of the place of recovery, recorded the statements of the prosecution witnesses under Section 161 Cr.P.C and also sent the appellant to judicial lock up by the order of the learned Area Magistrate. Having found the accused guilty, the Investigating Officer (PW-

3)prepared report under Section 173 Cr.P.C., while placing his (the appellant) name in Column No.3 of the challan and sent the same to the court of competent jurisdiction.

4.The learned trial court formally charge sheeted the appellant on 05.07.2014, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as five witnesses. Abu Zar Muhammad Afzal ASI (PW-1) is Moharrar, who also chalked out formal FIR (Ex.PA/1). Hafiz Babar/C (PW-2) transmitted the parcels of samples to the office of NIH, Islamabad. Mumtaz Hussain Inspector (PW-3) is the complainant-investigating officer of the case, whereas Altaf Hussain HC/Driver (PW-4) and Muhammad Shoaib/C (PW-5) are the witnesses of recovery.

5.On 13.10.2016, the learned Special Prosecutor for ANF gave up PW-Altaf Hussain/HC driver (PW-4 whose examination in chief was recorded) as being transferred and closed the prosecution evidence.

6.The appellant was also examined under Section 342 Cr.P.C, wherein he neither opted to appear as his own witnesses in terms of Section 340(2) Cr.P.C, nor opted to produce defence evidence and while replying to a particular question that why PWs had deposed against him, the appellant made the following deposition:-

“All the PWs are sub-ordinates to the I.O that is way they deposed falsely against me. Otherwise nothing was recovered from me. I am totally innocent. The actual facts behind this case are that FIR No.11/2014 u/s 9-C/CNSA Faisalabad has been registered against Razzaq alias Babo and I

have been implicated in this case on his statement.

My brother in-law Liaqat was best friend of Babo.

My marriage was solemnized against the will of Liaqat and Liaqat totally disliked me and due to this grudge he involved me falsely in present case.”

7.After hearing the arguments advanced by the learned counsel for the appellant as well as the learned Special Prosecutor for ANF, the learned trial court while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.

8.We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Special Prosecutor for ANF and have minutely perused the record available on the file.

9.We have carefully perused the reports of National Institute of Health, Islamabad (Exh.PK/P1-P6). From the contents of the reports (Exh.PK/P1-P6), we have noted that the reports of analyst are vague since it does not show the extent of protocols. It is Rule 6 of the Control of Narcotic Substances (Govt. Analysts) Rules, 2001 which lays down the procedure to be followed by the Analyst after test or analysis on receipt of the sample. The relevant Rule 6 reads as under:

6.Report of result of test or analysis.

After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in form-II.”

After the test or analysis has been completed, the analyst shall forthwith supply report to the sender in quadruplicate as specified in Form-II of the result of the test or analysis, together with full protocols of the tests applied as specified in Form-II. Full protocols of the each test/analysis are integral part of Para No.1 of Form-II. Para No.1 of Form-II reads as under:- "1- Certified that the sample bearing on.................purporting to be sample of.........received on..............with memorandum

No.................dated...............from...............has been tested/analyzed and the result of each test/analysis is stated below:"

(Bold and underline for emphasis)

It shall be deemed to be full and sufficient compliance with the requirement of the rule in respect of the supply of "protocols of the test or analysis applied" for narcotic substances, if the tests or methods of analysis applied, references to the full protocols of the specific tests are given in the report. Now the relevant part of the reports of the analyst may be noticed. It reads as under:-

"The submitted sample is identified to contain Charas"

Since the samples did not conform to test protocols, it was declared not to be tested on standard quality as defined in the rules. It is thus also not a sufficient compliance as the test applied was not mentioned in the reports. It is relevant to mention here that Rule 6 of the Control of Narcotic Substances (Govt. Analysts) Rules, 2001 contemplates analysis and test as two different things. The rule and the form require that the full protocol of the test should be stated after test or analysis. On the perusal of the above reports (Exh.PK/P1-P6) the same cannot be said to be full and complete, disclosing the full protocols of the test applied, except the bare opinion that the samples contain Charas. There is nothing on the basis of which we can assess the truthfulness of the reports (Exh.PK/P1-P6). Reliance is placed on the judgments of the Hon’ble Supreme Court of Pakistan in the case of Ikram Ullah and others v. The State (2015 SCMR 1002), The STATE through Regional Director ANF. Vs. IMAM BAKHSH and others (2018 SCMR 2039) and in the case of "Khair-ul-Bashar versus The State" (2019 SCMR 930), the Hon’ble Supreme Court of Pakistan had held that:

“In the present case examination of the report of the Government Analyst mentions the tests applied but does not provide their results except a concluding result, presumably of all the tests, which is not sufficient. The Report also does not signify the

test protocols that were applied to carry out these tests. Hence, the mandatory requirement of law provided under Rule 6 has not been complied with and, thus, it is not safe to rely on the Report of the Government Analyst dated 18.02.2016”

The report of the Analyst containing his opinion must, therefore, disclose the full protocols carried out and each test applied on which his opinion is based and the reason in support of the opinion. The opinion rendered by the Analyst is no evidence unless the same is supported by the reasons. The reports of National Institute of Health, Islamabad (Exh.PK/P1-P6) except an opinion that samples contain “Charas” there is no other data as prescribed in law. Since the patent infirmity has been noticed in the reports (Exh.PK/P1-P6) which is found to be fatal to the prosecution case. In such eventuality it is not possible to uphold and sustain the judgment of conviction and sentence against the appellant. Accordingly the appellant deserves to be given benefit of doubt and findings in this regard are required to be set aside and the same are set aside.

10.As a consequence whereof, the instant Criminal Appeal No.44- J of 2017 is accepted and the appellant-Arshad Mehmood is ordered to be acquitted of the charge in case F.I.R. No.12 of 2014 dated 17.05.2014, offence under Section 9(C) of the Control of Narcotic Substances Act, 1997, registered at Police Station A.N.F. District Faisalabad. The appellant is in custody, he be released forthwith, if not required in any other case.

(Syed Shahbaz Ali Rizvi) (Aalia Neelum) Judge Judge

Approved for reporting

(Syed Shahbaz Ali Rizvi) (Aalia Neelum) Judge Judge

Ikram*