Umar Din vs The State etc.

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Criminal Appeal No. 59 of 2018 (Umar Din Vs. The State and another)

JUDGMENT

Date of hearing: 14.02.2022.

Appellant by: Ms. Tania Bazai, Advocate (learned defence counsel appointed on State expense).

State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

SADIQ MAHMUD KHURRAM, J: - Umar Din son

of Sohrab (convict), was tried by the learned Additional Sessions Judge, Sadiqabad in case FIR No. 385 of 2013, dated 08.10.2013 registered at Police Station Kot Sabzal, District Rahim Yar Khan, in respect of an offence under section 9(c) of Control of Narcotic Substances Act, 1997. The learned trial court vide judgment dated 11.12.2017, convicted Umar Din son of Sohrab (convict) and sentenced him as under:-

Umar Din son of Sohrab:- Imprisonment for life under section 9(c) of Control of Narcotic Substances Act, 1997 and directed to pay fine of Rs.1,00,000/- and in default of payment thereof to further undergo Simple Imprisonment for one year.

The convict was, however, extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898.

2.Feeling aggrieved, Umar Din son of Sohrab (convict) lodged the instant Criminal Appeal No. 59 of 2018, assailing the judgment dated 11.12.2017, passed by the learned Additional Sessions Judge, Saidqabad whereby the appellant was convicted and sentenced for an offence punishable under Section 9(c) of the Control of Narcotic Substances Act, 1997 as mentioned above.

3.Precisely, the necessary facts of the case, as divulged through the statements of the prosecution witnesses are that the appellant namely Umar Din son of Sohrab was arrested on 08.10.2013 and 140 kilograms of “Charas” (P-1) was recovered from his possession and the same was taken into possession through recovery memo (Exh. PA).

4.On the above stated facts FIR No. 385 of 2013 (Exh. PC), dated 08.10.2013 was registered at Police Station Kot Sabzal, District Rahim Yar Khan, in respect of an offence under section 9(c) of Control of Narcotic Substances Act, 1997.

5.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Umar Din son of Sohrab was sent to face trial. The learned trial court framed the charge against the accused on 07.01.2014 under section 9(c) of the Control of Narcotic Substances Act, 1997. The accused pleaded not guilty and claimed trial and the learned trial Court proceeded to examine the prosecution witnesses.

6.In order to prove the facts, the prosecution got as many as five witnesses examined. The prosecution got Jam Munir Ahmad Inspector (PW-3) and Muhammad Abbas 83/C (PW-4) examined as witnesses of the recovery of the narcotic substance. Naseer Ahmad 1500/HC (PW-2) stated that on 08.10.2013, Muhammad Aslam, S.I.

(PW-5), the Investigating Officer of the case, handed over to him 110 sealed parcels said to contain samples drawn and separated from the recovered “Charas” and one sealed parcel said to contain the remaining bulk of the recovered “Charas” and he on 23.10.2013 handed over the 110 sealed parcels said to contain samples drawn and separated from the recovered “Charas” to Muhammad Naeem 1019/C (PW-1) for depositing them in the office of Chemical Examiner to the Government of Punjab, Multan. Muhammad Aslam SI (PW-5) stated that on 08.10.2013, he recorded the formal F.I.R (Exh. PC) and also investigated the case from 08.10.2013 till 10.10.2013 and detailed the facts of his investigation in his statement before the learned trial court.

7.On 18.11.2017, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Asif 613/C as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Chemical Examiner to the Government of Punjab, Multan (Exh. PE).

8.After the closing of prosecution evidence, the statement of the appellant namely Umar Din son of Sohrab was recorded under section 342 of Code of Criminal Procedure, 1898 and the appellant

pleaded their innocence and in reply to as to why the PWs had deposed against them, he stated that the witnesses were Police Officials who deposed falsely against him just to strengthen the prosecution being subordinates of the complainant of the case. The appellant opted not to appear in terms of section 340(2) of the Code of Criminal Procedure, 1898 and did not adduce any evidence in his defence.

9.After completion of evidence and hearing both the parties the learned trial court held the appellant guilty of the offence and sentenced the appellant as referred to above.

10.Learned counsel for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant.

Learned counsel further argued that there were glaring contradictions in the statements of the witnesses hitting at the very root of the prosecution case. Learned counsel for the appellant also contended that the details of the full protocols applied to carry out the tests, as required under the law, were not mentioned by the office of Chemical Examiner to the Government of Punjab, Multan, while preparing the report (Ex.

PE). Learned counsel also stated that nothing was recovered from the appellant and pleaded for acquittal of the appellant.

11.On the other hand, the learned Deputy Prosecutor General appearing on behalf of the State submitted that the prosecution has proved the charge by producing admissible and relevant evidence. He

further submitted that all the witnesses have corroborated each other.

He requested that the appeal be dismissed.

12.We have heard the learned counsel for the appellant as well as the learned Deputy Prosecutor General and perused the record.

13.It is by now well settled that since the provisions of the Control of Narcotic Substances Act, 1997 provide severe punishments, therefore, their proof has to be seen strictly and the benefit of any doubt in the prosecution case must be extended to the accused. Reference in this respect may be made to the case of “Muhammad Hashim V. The State” (PLD 2004 Supreme Court 856). Dealing with the same proposition, the august Supreme Court of Pakistan has held in the case of “Ameer Zeb V. The State” (PLD 2012 Supreme Court 380) that the stiffer the sentence is, the stricter the standard of proof should be.

Seeking guidance from the abovementioned judgments of the august Supreme Court of Pakistan, we proceed to decide the instant case. The evidentiary value of the report of Chemical Examiner to the Government of Punjab, Multan (Exh. PE) has been evaluated by us in the light of Control of Narcotic Substances (Government Analysts) Rules, 2001. Rule 6 of the said Control of Narcotic Substances (Government Analysts) Rules, 2001 makes it imperative on an analyst to mention the result of sample analyzed with full protocols applied thereon alongwith other details in the Certificate issued for test/Analysis by Laboratory. Rule No.6 of the Control of Narcotic Substances (Government Analyst) Rules, 2001 states as infra:

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.

We have observed that the report of the Chemical Examiner to the Government of Punjab, Multan (Exh. PE), tendered in evidence by the prosecution in this case does not give the details of the full protocols applied to carry out the tests or the details of the tests themselves, as required under the law, at the time of analysis of the samples of the narcotic substance allegedly recovered from the possession of the appellant. Relevant/operative part of the report of the Chemical Examiner to the Government of Punjab, Multan tendered in evidence by the prosecution as (Ex. PE), reads as under: -

RESULT:

“All the above packets contain Chars”

Undisputedly, it is settled by now that any report failing to describe in it, the details of the full protocols applied to carry out the tests as required under the law will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary presumption attached to a Report of the Government Analyst under section 36(2) of the Act ibid. In the report of Chemical Examiner to the Government of Punjab, Multan (Exh. PE), it is simply mentioned that certain tests were conducted and contraband material recovered in this case was found to be “Charas” instead of mentioning the details of the full protocols applied to carry out the tests and the details of the tests as required under the law on the samples received for analysis. The term “protocol” has not been defined in the Control of Narcotic Substances (Government

Analyst) Rules, 2001. Its dictionary meaning is: A plan of scientific experiment or other procedure. It is also referred to as the precise method for carrying out or reproducing a given experiment. It is clarified that “protocol” is, therefore, a recognized standard method or plan for carrying out the test applied to ascertain the nature of the substance under examination. No test can take place without a protocol.

The Report of the Government Analyst must show that the test applied was in accordance with a recognized standard protocol. Any test conducted without a protocol loses its reliability and evidentiary value.

Therefore, to serve the purposes of the Act and the Rules, the Report of the Government Analyst must contain (i) the tests applied (ii) the protocols applied to carry out these tests (iii) the result of the test(s).

Once the above three requirements under Rule 6 are contained in the Report of the Government Analyst, any ambiguity therein may be resolved by the Trial Court by exercising its power under Proviso to section 510, Cr.P.C. The said provision states that the Court may, if it considers necessary, in the interest of justice, summon and examine the person by whom such report has been made. Therefore, the trial court while examining the said Report has the power to summon the Government Analyst in case there is any ambiguity in the said Report and seek clarification thereof. This clarification can only be based on the existing record of the Government Analyst and does not mean to allow the Government Analyst to conduct a fresh test or prepare another Report, for that would amount to giving the prosecution a chance of filling the gaps and omissions in the Report. The trial court must also be mindful of the legal position that the per se admissibility of the

Report i.e. without examining the Analyst (expert) does not vouch for its evidentiary value. We find that the report of Chemical Examiner to the Government of Punjab, Multan (Exh. PE) is not in line with the principles enunciated by the august Supreme Court of Pakistan in the case of “The State through Regional Director ANF Vs. Imam Bakhsh and others” (2018 SCMR 2039). The relevant portion of the said judgment is reproduced as under:-

“Rule 6 on the other hand stands on a different statutory footing. It 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.

16.Non-compliance of Rule 6 can frustrate the purpose and object of the Act, i.e. control of production, processing and trafficking of narcotic drugs and psychotropic substances, as conviction cannot be sustained on a Report that is inconclusive or unreliable. The evidentiary assumption attached to a Report of the Government Analyst under section 36(2) of the Act underlines the statutory significance of the Report, therefore details of the test and analysis in the shape of the protocols applied for the test become fundamental and go to the root of the statutory scheme. Rule 6 is, therefore, in the public interest and safeguards the rights of the parties. Any Report (Form-II) failing to give details of the full protocols of the test applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a Report of the Government Analyst under section 36(2). Resultantly, it will hopelessly fail to support conviction of the accused. This Court has already emphasized the importance of protocols in Ikramullah's case (supra).

17.Rule 6 also requires the issuance of quadruplicate copies of the Report and the requirement of two signatures on the Report of the Government Analyst in Form-II. Section 36 states that the Report shall be signed by the Government Analyst only, therefore the requirement of two signatures and the issuance of quadruplicate copies, are at best, a good practice, but are merely directory provisions, as their non-compliance does not offend the Act. At this stage it is important to point out that this Court, in a series of judgments, has considered the scope of Rule 4(2) of the

Rules, which provides that the samples be dispatched to the Government Analyst not later than 72 hours of its seizure and has held it to be a directory provision. Reliance is placed on Muhammad Sarfraz v. State (2017 SCMR 1874), Gul Alam v. The State (2011 SCMR 624) and Tariq Mehmood v. The State (PLD 2009 SC 39). In Taimoor Khan v. State (2016 SCMR 621) this Court has additionally held that Rules 3, 4 and 6 are mandatory. Deeper examination of this judgment reveals that reference was only being made to Rule 4(1), whereas, Rule 4(2) was not discussed, separately. This understanding falls in line with the consistent view of this Court regarding Rule 4(2) as referred to above.

18.It is important to underline that even if a rule is directory, its substantial compliance as opposed to strict compliance is required. Non-compliance of such a rule might not invalidate the act but as it provides a legislative process based on public interest, transparency and good governance, its substantial compliance is necessary.”

The above said view has been further fortified in the recent case law titled as “Khair-ul-Bashar Vs. The State” (2019 SCMR 930). The august Supreme Court of Pakistan in the case of “Muhammad Boota Vs. The State and another” (2020 SCMR 196) has held as under: -.

“In absence of this certainty we cannot believe the case of the prosecution as it is. It has since been authoritatively settled by this Court in the case reported as The State through Regional Director ANF v. Imam Bakhsh (2018 SCMR 2039) that confirmatory forensic conclusions to establish narcotic character of a substance must be supported by protocol/ procedure mandated by Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules 2001 and non-compliance of Rule ibid would render the report of the Government Analyst inconclusive, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a report of the Government Analyst. Confronted with the shortcoming of the anomalous report, the learned Law Officer, nonetheless, still defended the impugned judgment, however, without mark. Prosecution has failed to prove its case against the petitioner to the hilt and it would be unsafe to maintain the conviction.”

The august Supreme Court of Pakistan in the case of “Qaiser Javed Khan Vs. The STATE through Prosecutor General Punjab, Lahore and another” (P L D 2020 Supreme Court 57) has held and directed as under: -.

”6. The Report of the Government Analyst in this case specifies only the tests applied and not the protocols thereof. The term "protocol" has not been defined in the Rules. Its dictionary meaning is: "A plan of scientific experiment or other procedure.4"

It is also referred to as "the precise method for carrying out or reproducing a given experiment5." These definitions are in line with the elaboration of the term "protocol" given in Imam Bakhsh wherein the Court stated the expression "protocol" to mean an explicit plan of an experiment, procedure or test.lt is clarified that "protocol" is, therefore, a recognized standard method or plan for carrying out the test applied to ascertain the nature of the substance under examination. No test can take place without a protocol. The Report of the Government Analyst must show that the test applied was in accordance with a recognized standard protocol. Any test conducted without a protocol loses its reliability and evidentiary value. Therefore, to serve the purposes of the Act and the Rules, the Report of the Government Analyst must contain (i) the tests applied (ii) the protocols applied to carry out these tests (iii) the result of the test(s). This sequence, for clarity and better understanding can be envisaged as follows:

Test Applied

Protocols (applied to carry out the tests))

Results of the test(s)

8.The Report of the Government Analyst in the instant case does not specify the protocols of the tests applied and thus does not meet the requirements of the law as interpreted by this Court in the cases of Imam Bakhsh and Khair-ul-Bashar (supra). The said Report cannot be relied upon for the conviction of the petitioner. Therefore, the petition is converted into an appeal and allowed. The conviction and sentence of the petitioner are set aside. He shall be released forthwith if not required to be detained in any other case.

9.We have observed in a number of cases before us that the import of the above cited judgments have not been fully understood in the context of "protocols", which has been further clarified in this judgment. Therefore, it will be appropriate if a copy of this judgment is dispatched to all the High Courts for their reference and for further circulation to the Trial Courts dealing with such matters and to the Forensic Science Laboratories in their respective areas.” (emphasis supplied)

The learned Deputy Prosecutor General has referred to the case of Hussain Shah and others Vs. The State (P L D 2020 Supreme Court

132)and has submitted that in the said case the august Supreme Court of Pakistan had relied upon the report of the Chemical Examiner. The august Supreme Court of Pakistan did indeed rely upon the report of the Federal Government Analyst in the case of Hussain Shah and others

Vs. The State (supra), however, only because it mentioned all the protocols followed. The august Supreme Court of Pakistan in the case of Hussain Shah and others Vs. The State (supra) had observed as under:-

4.It has been argued before us that the report submitted by the Chemical Examiner did not mention the necessary protocols followed or tests applied but we have seen the said report available on the record of the trial court and have found that the said report not only referred to the protocols adopted but also to the tests applied and, thus, we have not been able to find any deficiency in the said report.

Apart from that a Notification is available on the record according to which the relevant Chemical Examiner had been duly notified by the Government as a Federal Government Analyst. The record further shows that the said Chemical Examiner had prepared the relevant report at a time when he was being assisted in the matter by Mrs. Farhana Shaukat who held the degree of M.Sc. Biochemistry and she too was notified by the Government as the Federal Government Analyst through the same Notification.”(emphasis supplied).

As mentioned above that the report of Chemical Examiner to the Government of Punjab, Multan (Exh. PE) is not in line with the principles enunciated by the august Supreme Court of Pakistan in the case of “The State through Regional Director ANF Vs. Imam Bakhsh and others” (2018 SCMR 2039). The above said view has been further fortified in the case law titled “Khair-ul-Bashar Vs. The State” (2019 SCMR 930). We have also requisitioned the attested copy of FIR in

case of “Khair-ul-Bashar” supra i.e., FIR No.18, dated 15.01.2016, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at police station Westridge, District Rawalpindi, as well as, attested copy of the report of the Punjab Forensic Science Agency, Lahore, exhibited as Ex.PH, in the said case before the concerned trial court. The report of the Punjab Forensic Science Agency, Lahore, produced in evidence as Ex.PH, in the case of “Khair- ul-Bashar” supra also did not mention the full protocols applied to carry out the tests though it does mention the names of the tests which were conducted to determine the identity of the item sent for analysis.

The report of Chemical Examiner to the Government of Punjab, Multan (Exh. PE) tendered in evidence in this case also does not mention the full protocols applied to carry out the tests though it does mention the names of the tests which were conducted to determine the identity of the items sent for analysis. As the report in the case of “Khair-ul- Bashar” supra has not been relied upon by the august Supreme Court of Pakistan as it did not mention the full protocols applied to carry out the tests though it did mention the name of the tests which were conducted to determine the identity of the items sent for analysis, therefore, the report of the Chemical Examiner to the Government of Punjab, Multan produced in evidence of this case by the prosecution as Exh.PE is also not worthy of reliance.

14.The learned Deputy Prosecutor General has argued that the appellant cannot be acquitted on the abovementioned sole ground of non-mentioning of protocols/full details of the test applied, in the report of the Chemical Examiner to the Government of Punjab, Multan

but we have noted that the august Supreme Court of Pakistan in the case of “Khair-ul-Bashar” supra, acquitted the accused of the said case on the abovementioned sole ground of non-mentioning of protocols/full details of the tests applied in the report of the Punjab Forensic Science Agency, Lahore. Even otherwise, it is by now well settled that a single circumstance creating reasonable doubt would be sufficient to cast doubt about the veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right. In absence of this certainty, we cannot believe the case of the prosecution as it is. Keeping all these possibilities in mind and raising necessary inferences from the facts available on the record we have arrived at a conclusion that a possibility cannot safely be ruled out of consideration regarding the appellant having been falsely implicated in the present criminal case and, thus, we have decided to extend the benefit of doubt to him. Though there is a slight difference by virtue of the Narcotic Substances Act, 1997 in the manner and standard of proof in cases registered under the said Act but the prosecution is always bound to discharge the initial onus of proof.

This is now a settled principle of law that in every case the burden to prove the guilt of the accused always lies on the prosecution. Even the slightest doubt results in failure of the case of the prosecution. The benefit of doubt is not to be granted as a concession but as of right. The prosecution by mishandling the case has badly failed to bring on record unimpeachable and cogent evidence to prove the culpability of the appellant. In the light of the above noted infirmities, we are inclined to observe that prosecution has miserably failed to bring home the guilt of

the accused. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in cases titled “Ikramullah and others Vs. The State” (2015 SCMR 1002), “Akhtar Iqbal Vs. The State” (2015 SCMR 291) and “Muhammad Hussain Vs.

The State” (2008 SCMR 345). The august Supreme Court of Pakistan in the case of “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”

15.For what has been discussed above, we are persuaded to hold that the conviction and sentence recorded by the learned Additional Sessions Judge, Sadiqabad, vide judgment dated 11.12.2017, in the circumstances, are not sustainable. We, thus while allowing the instant Criminal Appeal No. 59 of 2018 lodged by Umar Din son of Sohrab (appellant), set aside the judgment dated 11.12.2017 passed by the learned Additional Sessions Judge, Sadiqabad and acquit the appellant namely Umar Din son of Sohrab from the charge levelled against him by extending him the benefit of doubt. The appellant namely Umar Din son of Sohrab is ordered to be acquitted. The appellant namely Umar Din son of Sohrab is in custody and is ordered to be released forthwith if not required in any other case.

16.The case property shall be dealt with as directed by the learned trial court. The record of the learned trial court be sent down immediately.

(ALI ZIA BAJAWA) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Rashid

Approved for Reporting

JUDGE JUDGE