Zakir Hussain Vs The State through Provincial Drug Inspector, Peshawar

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Cr.A No.190‐P/2021 “Zakir Hussain versus The State through Provincial Drug Inspector, Peshawar”

Date of hearing: 28.11.2022

Mr. Sohail Akhtar, Advocate for the appellant alongwith appellant in person.

Mr. Rab Nawaz Khan, AAG for the State.

JUDGMENT

SHAKEEL AHMAD, J.‐ The appellant Zakir Hussain assails his conviction and sentence under section 27(1) of the Drugs Act, 1976, for three (03) years plus a fine of Rs.50,000/‐ (rupees fifty thousand) alongwith publication fee of Rs.3,000/‐ (rupees three thousand) in terms of section 35 of the Drugs Act, 1976, arising out of Drug Court Case No.30/2012, rendered by the learned Drug Court, Khyber Pakhtunkhwa, Peshawar vide judgment dated 22.02.2021. Benefit of section 382‐B Cr.P.C was extended to the appellant.

02.The case of the prosecution shortly put is, that on information received by Muhammad Tayyab Abbas, the Provincial Drug Inspector, he alongwith Sabir Ali, Chief Drug Inspector and other contingent raided a house, situated in Street No.3 at Ghani Colony, Village Paharipura, Peshawar on 15.02.2010.

Accused Sher Dad s/o Sabihzada, Zakir Hussain s/o

Mir Akbar, Shakeel Ahmad s/o Shah Muhammad, Fazal Abbas s/o Sikandar, Muhammad Farooq s/o Shabbir Ahmad, Abid Ali s/o Altaf Hussain were found there in manufacturing the spurious drugs.

They were arrested on the spot. However, accused Zulfiqar s/o Munir was not found on the crime scene.

Vide Form‐6, the Provincial Drug Inspector seized the following items on the spot.

(i)7450 ampules of VOREN injection, purported to be manufactured by Young Shin Pharmaceuticals Company, Ltd, Lignocaine HCL (ii) 100 vials Xulex Injection 50 ml, lignocaine HCL solution 20 % purported to be manufactured by Venus Pharma, Lahore (iii) 150 vials Dexamethasone injection 30 ml, also purported to be manufactured by Venus Pharma, Lahore (iv) 2000 ampoules Dipyron 500 mg/1ml injection B.No.238 purported to be manufactured by Amros Pharmaceuticals A‐96 S.I.T.E North Karachi (v) 2000 ampoules Hyoscine compound injection iv/im 5ml B.No.02506 claimed to be manufactured by M/S Venus Pharma, Lahore (vi) 16000 ampoules Dipyron injection Voren B.No.VRIB013 (empty vial) claimed to be manufactured by M/S Youngshin Pharma, IND Co Ltd, Tachai, Taiwan (viii) A. 5500 numers vials, Unlabeled/unpacked Decadron injection/vial, viii.b 250 Label of young shin (iv) 2000 numbers empty Unit cartons of Voren injection B.No.VRI‐B013 (x) 1250 empty unit cartons of Hyoscine compound injectin R.No.013625 B.No.Nil, purported to be manufactured by M/S Venue Pharma Lahore (xi‐A) 3000 unprinted/unlabeled ampoules (empty) (xi‐b) Label of Dipyron injection B.No.238, manufactured by Amros Pharmaceuticals Karachi (xii) Ampule Filling machine of the nozzles (xiii) 2 NUMBERS Nitrogen Gas Cylinders (xiv) 9000 seals for Decadron injection (xv) 40000 rubber stoppers for vials (xvi) One oven type machine (xvii) One sealing

machine (xviii) One number printing machine of ampoules alongwith colors (xix) Two numbers of gas cylinders (xx) One diary in the name of Zakir Hussain (xxi) One cheque book of N.I.B Bank, City Branch, Peshawar Zakir Hussain bearing A/C No.5303‐0012645‐0001 (xxii) chemicals (a) Tartoric Acid (ii) Sodium Disulfite 1 kg.

03.The P.D.I separated the samples, out of the seized drugs through Form‐5, for test and chemical analysis and also got registered a case at Police Station Paharipura District, Peshawar vide crime No.216 dated 15.02.2010 under section 23(1)(a)(b)(c)/26/27(i)(a)(b)(4) of the Drugs Act, 1976. The Government Analyst of the Drug Testing Laboratory (DTL) declared the samples as spurious, unregistered containing Dexamethasone and also unfit for human consumption. It was also declared that the liquid for injection contained lignocaine HCL also unfit for human use.

04.After usual investigation, complete challan was given, and PDI, on approval of the Provincial Quality Control Board (PQCB), Peshawar vide letter dated 26.04.2011, filed complaint No.074/P.D.I dated 25.06.2011 and the accused were put to trial. Out of seven accused, Abid Ali and Fazal Abbas were acquitted of the charges by invoking the provisions of section 265‐K Cr.P.C, on 27.06.2011. Accused Sher Dad and Shakeel Ahmad pleaded guilty and were thus convicted and sentenced to imprisonment for ten

(10)months each with a fine of Rs.15,000/‐ each with publication charges vide order dated 05.07.2018. Accused Zulfiqar also pleaded his guilt and was thus convicted and sentenced to imprisonment for one & half years with a fine of Rs.10,000/‐, he was also burdened to pay publication fee. The appellant, being an absconder was proceeded against under section 512 Cr.PC, however, he surrendered before the Court, and after compliance of provisions of section 265‐C Cr.PC, charge was framed against him, however, he pleaded not guilty and claimed trial.

05.The prosecution examined five (05) witnesses in support of its case, and mainly relied upon the statement of Muhammad Tayyab Abbas complainant (PW‐1). He supported his stance incorporated in crime No.216. Haleem Gul, Inspector, the then Sub‐Inspector was examined as PW‐2 who deposed that on receipt of murasila, he incorporated it into crime No.216 Ex.PW‐2/1. Maqbali Khan, Ex Sub‐Inspector was produced as PW‐3, he conducted investigation in the instant case. He, on receipt of crime No.216, rushed to the crime scene and prepared site plan Ex.PW‐3/1 at the instance of the complainant, recorded statements of PWs under section 161 Cr.P.C, interrogated the arrested accused,

produced them before the Court for obtaining their custody vide application Ex.PW‐3/2. Again, on 18.02.2010, he produced the said accused for recording their confessional statements, obtained warrant under section 204 Cr.PC. against accused Zulfiqar through his application dated 22.02.2010 Ex.PW‐3/5, warrant under section 204 Cr.PC. was placed on record as Ex.PW‐3/6 and entrusted it to Muhammad Zafar DFC for execution. He, through his application dated 02.03.2010 Ex.PW‐3/7, requested for issuance of promoclamation notice Ex.PW‐3/8 under section 87 Cr.PC against the accused Zulfiqar, the copy of said notice, after execution, was returned by Muhammad Zafar DFC. He then placed on record the copy of rend deet Ex.PW‐3/9, and after completion of investigation, he submitted interim challan Ex.PW‐3/10 on 02.03.2010 followed by complete challan Ex.PW‐3/11 on 16.03.2010 against the accused. PW‐4 Karamat Shah, Ex. D.S.P accompanied Sabir Ali, the Chief Drug Inspector at the time of raid. This witness deposed in his statement that he is well conversant with the signatures of deceased Amir Badshah, the then SHO, and admitted that Form‐7 & Form‐6 bear the signatures of Amir Bad Shah correctly. Niqab Shah, Junior Clerk (Rtd) of DHO Office, Peshawar was

examined as PW‐5, who is marginal witness of Form‐ 5 & Form‐6, and had accompanied Muhammad Tayyab Abbas, PDI, Peshawar at the time of raid. This witness admitted his signatures on Form‐5 & Form‐6 as correct.

06.On the closure of prosecution evidence, the appellant was examined under section 342 Cr.P.C. He denied the incident and pleaded that he was falsely implicated in the case, as, he visited the raided house on the relevant day and time to procure the outstanding amount, due against one Muneer father of accused Zulfiqar in respect of his cattle business where police were already present and arrested him.

His plea did find favour, consequently, he was convicted and sentenced as stated above. Hence, this appeal.

07.We have heard arguments of Mr. Sohail Ahmad, Advocate Supreme Court of Pakistan for the appellant and Mr. Rab Nawaz Khan, AAG

representing the State, at length. Though several arguments have been raised by the learned counsel for the parties to assail the conviction and in support of the same, it is not considered to deal with all of them, since, the present appeal can be decided on short questions.

08.PW‐1 Muhammad Tayyab Abbas, the

Provincial Drug Inspector, who conducted the raid, in his evidence acknowledged that the seized drugs were not placed in evidence before the Court during the course of the trial. Similar is the evidence in confirmation of PW‐5 Niqab Shah, who is marginal witness of Form‐5 & 6. PW‐2 Haleem Gul, SI, the then ASI deposed that on receipt of murasila, he incorporated its contents into FIR Ex.PW‐2/1. He acknowledged that no case property alongwith murasila was brought to the Police Station. He further deposed that the same was handed over to the Moharrir of the Police Station, however, the said Moharrir was not produced before the learned trial Court.

09.In our view, prosecution was not dispensed with the requirement to having first establish a prima facie case, only whereafter, the burden will shift to the accused. The mere registration of case under the Drugs Act, 1976 will not ipso facto shift the burden on the accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and scrutiny stringent, if there is any iota of doubt of benefit shall have to be given to the accused.

10.No explanation, whatsoever has been furnished by the prosecution for non‐production of

the case properties as exhibits in the trial. The benefit of doubt will, therefore, have to be given to the appellant and in support of this, reliance can well be placed on the judgments reported as “Jitendra and Anr. Vs. State of M.P MANU/SC/0727/2003 (2004) 10 SCC 562 and reiterated in “Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, MANU/SC/0340/2011” (2011) 5 SCC 123, as follows:

“Last but not least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial Court as a material exhibit and once again there is no explanation for its non‐production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the Appellant or the other accused”.

11.In the facts of the present case, the appellant was not named by PW‐1 as an offender in his deposition before the learned trial Court. Niqab Shah, PW‐5, who is one of the witnesses of the recovery memo, acknowledged that Form‐5 Ex.PW‐1/2 and Form‐6 Ex.PW‐1/1 does not carry the signature of second marginal witness.

12.In our view, the best evidence would have been the seized materials, which ought to have been produced during trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of Form‐5 and Form‐6 does not

discharge the heavy burden which lies on the prosecution, particularly, where the offence is punishable with stringent sentence as under the Drugs Act, 1976. In this case, Form‐5 and Form‐6 have been turned hostile, so these Forms are nothing but, a document written by the complainant.

13.There is another intriguing feature of the case, the prosecution has failed to prove nexus of the appellant with the raided house. It was acknowledged by the Investigating Officer (PW‐3) that the house in question was rented out to the accused Zulfiqar Ahmad by Naik Muhammad through a property dealer namely Muhammad Ghaus. It was also acknowledged by the Investigating Officer that one of the accused had disclosed to him that he is neither owner of the house nor owner of the factory, but, had come there as a guest, if this acknowledgement is read in juxtaposition with the reply of question No.5 of the statement of accused Zulfiqar Hussain, his plea seems to be more plausible that he had come there to collect his money from the father of Zulfiqar Hussain.

14.PW‐1 Muhammad Tayyab Abbas

(complainant) also acknowledged that as per provisions of the Drugs Act, 1976, permission/ sanction of PQCB is required before taking action,

however, no such permission/sanction was taken before or after raid. The record does not reflect that the appellant was given an opportunity of hearing before the PQCB before taking adverse action against him.

15.The facts of the present case are markedly similar to the judgments referred to above. We find no reason to any different conclusion as to why the appellant ought not to be given benefit of doubt. The conviction and sentence awarded by the learned trial Court is, therefore, held to be unsustainable and is set aside. The appellant is on bail, he is discharged/absorbed from the liability of bail bonds.

Announced

JUDGE

JUDGE

DB

Hon’ble Mr. Justice Ijaz Anwar Hon’ble Mr. Justice Shakeel Ahmad Himayat, CS