Munshiat 9c main bari Acquittal in narcotics by Supreme Court contradiction in statement of witnesses
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| Acquittal in 9C |
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| Acquittal in narcotics |
Supreme Court declare in the following judgement
Contradictions and grounds of acquittal
The petitioner’s conviction
primarily rests on the testimonies of police Constable Yasir Ali
(PW-1) and Sub-Inspector and complainant Abid Hussain (PW-2).
Both these witnesses stated that when they were deployed at Police
Post Hattian they, in a private Honda car, drove to the place of
occurrence where they saw in the petitioner’s right hand a blue
shopping bag which after it was searched had 1430 grams of
suspected narcotic substance, which the chemical examiner’s
report states to be charas. Recovery memorandums were prepared
and PW-1 was a witness to these recovery memorandums (Exhibits
PA and PB) and the other witness to them was Constable Jehanzeb
Khan, but the prosecution did not produce him as a witness. PW-
1 stated that the place of occurrence, that is the place where the
petitioner was apprehended and arrested, “was at a distance of
about 2/3 kilometers towards west from police post” but PW-2
stated that, “the place of occurrence is at a distance of 1 kilometer
from the police post”. The discrepancy in the distance becomes
material when both these witnesses were shown to be performing
duties in the area. PW-1 and PW-2 stated that in addition to them
there was Constable Jehanzeb Khan and Constable Shoaib Afzal in
the said car, but neither remembered who was sitting in the front
seat next to the driving seat whilst remembering other minute
details such as noting, that the petitioner was holding the blue
shopping bag in his right hand. PW-1 did not know the owner of
the car and PW-2 stated that he, “had the private car from someone
on the basis of curtsy” [sic] but did not disclose the name of the
owner of the vehicle. The petitioner had throughout maintained
that he was roped into a false case because he and his wife ran
Jail Petition No. 191/2018
7
‘Muhammad Ali Public School’ and an influential of the area who
ran another school, ‘Al-Meenar Public School’, wanted to have the
petitioner’s school closed down as the petitioner and his wife’s
school competed with them. Both these witnesses professed
complete ignorance about the schools, which is surprising
considering they were serving in the area. Another significant
contradiction was that whilst PW-1 in his cross-examination stated
that upon seeing the policemen the, “accused had not run. I and
Shoaib Constable had over powered the accused” PW-2 stated that
when the, “accused saw us, he tried to run away but he was over
powered”. An unusual facet of this case is that having
Complete judgement
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT: Mr. Justice Gulzar Ahmed
Mr. Justice Qazi Faez Isa
Mr. Justice Mazhar Alam Khan Miankhel
JAIL PETITION NO. 191 OF 2018
(On appeal against the judgment dated
15.02.2018 passed by the Lahore High Court,
Rawalpindi Bench in Crl. A. No. 182/2017)
Minhaj Khan
Petitioner(s)
Versus
The State
Respondent(s)
For the Petitioner(s):
Mr. M. Amjad Iqbal Qureshi, ASC
Syed Rifaqat Hussain Shah, AOR
For the State:
Ch. Zubair Ahmed Farooq,
Additional Prosecutor General, Punjab.
Date of Hearing:
09.01.2019
JUDGMENT
QAZI FAEZ ISA, J. The petitioner was tried for being in possession
of 1430 grams of narcotic substances (charas) and convicted under
section 9(c) of the Control of Narcotic Substances Act, 1997 (“the
Act”) by the Special Court (CNS), Attock. The petitioner’s appeal
was dismissed by Lahore High Court, Rawalpindi Bench, and his
conviction and sentence was maintained.
2.
Mr. Muhammad Amjad Iqbal Qureshi, the learned counsel
for the petitioner, stated that the ‘Narcotics Analysis Report’ issued
by the Punjab Forensic Science Agency, Lahore (“the Report” and
“the PFSA” respectively) did not mention the “protocols of the test
applied” as mandated in Rule 6 of the Control of Narcotic
Substances (Government Analysts) Rules, 2001 therefore the
Report was unreliable and in this regard relied on the case of State
v Imam Bakhsh (2018 SCMR 2039) wherein it was held that, “Rule
ail Petition No. 191/2018
2
6 is mandatory to the extent that the full protocols ought to be
mentioned in the Report of the Government Analyst.” And, that
“Non-compliance of Rule 6, in this context, will render the Report of
the Government Analyst inconclusive and unreliable” (paragraph 20,
page 2050EF).
3.
Ch. Zubair Ahmed Farooq, the learned Additional
Prosecutor General, Punjab (“APG”),
representing the State
submits that the cited precedent should be construed to be per
incuram because neither in the Act nor in Form II, which is the
prescribed form of the report issued pursuant to Rule 6 of the
Rules, reference to “protocols” is made. The relevant provisions of
the Act, the learned APG states, are sections 34, 35 and 36 and
none of these sections (reproduced hereunder) refer to “protocols”,
let alone that “protocols” are to be mentioned in the narcotics
analysis report:
34.
Federal Narcotics Testing Laboratory, etc.
(1) The Federal Government may, as soon as
may be after the commencement of this Act, set-up a
Federal Narcotic Testing Laboratory and such other
institutes and narcotics testing research laboratories
or notify any other laboratory or institute to be a
Federal Narcotics Testing Laboratory for carrying out
the purposes of this Act.
(2) The Provincial Government may, wherever
deems appropriate, set-up Provincial Narcotics Testing
Laboratories.
35.
Government Analyst. The Federal Government
or a Provincial Government may, by notification in the
official Gazette, appoint such persons as it thinks fit,
having the prescribed qualifications, to be Federal
Government Analysts or, as the case may be,
Jail Petition No. 191/2018
3
Provincial Government Analysts, for such areas and in
respect of such narcotic drugs, psychotropic
substances or controlled substances as may be
specified in the notification.
36.
Reports of Government Analysts.
(1) The Government Analyst to whom a sample
of any narcotic drugs, psychotropic substance or
controlled substance has been submitted for test and
analysis shall deliver to the person submitting it, a
signed report in quadruplicate in the prescribed form
and forward one copy thereof to such authority, as
maybe prescribed.
(2) Notwithstanding anything contained in any
other law for the time being in force, any document
purporting to be a report signed by a Government
Analyst shall be admissible as evidence of the facts
stated therein without formal proof and such evidence
shall, unless rebutted, be conclusive.
4.
The learned AGP further submits that Rule 6 itself states
that the report is “specified in Form-II” and the specified Form-II
doesn’t mention protocols or that protocols be attached with the
Form-II report issued by narcotic testing laboratories. Therefore, if
in the report protocols are not mentioned the report is “inconclusive
and unreliable” (as held in the cited judgment) nor non-mentioning
of protocols be made the basis of an acquittal. Elaborating further
the learned counsel contends that subsection (1) of section 36 of
the Act requires “a signed report in quadruplicate in the prescribed
form” which is Form-II (reproduced hereunder) and it neither
prescribes nor envisages protocols. Therefore, if a court stipulates
that protocols are required to be mentioned in the Form-II report,
or should be attached therewith, it would amount to substituting /
amending subsection (1) of section 36 of the Act which, the learned
Jail Petition No. 191/2018
4
AGP states with respect, is not within the domain of the court but
exclusively within that of the Legislature.
FORM II
(See rule 6)
CERTIFICATIONS OF TEST OR ANALYSIS BY FEDERAL NARCOTIC
TESTING LABORATORY GOVERNMENT ANALYST
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:
2.
The condition of the seal on the packet on receipt
was as follows:
Satisfactory / Unsatisfactory / None.
3.
In the opinion of the undersigned the sample is
__________ as defined in the Section-2 of the CNS Act,
1997.
4.
DETAILS OF THE RESULTS OF TESTS / ANALYSIS:
Sample No.____________________________________
Gross Wt: ______________ Net Wt:_______________
F.I.R. No. ______________ Dated: ________________
Accused_______________________________________
Physical Examination:__________________________
CONCLUSION:_______________________________________
NOTE:
In case of mixture the %age of each Alkaloids,
Opium derivatives, Opiates, Cannabis, Drugs
of abuse and the synthetic compounds are as
follows:
The sample identified as _________________
and contains % ___________
Signature of Government Analyst
Federal Narcotics Testing Laboratory
Signature of any other authorized
officer of the Laboratory.
5.
The learned AGP alternatively contends that if, for the sake
of argument it is accepted that, Rule 6 of the Rules mandates
protocols then Rule 6 to such extent contradicts subsection (1) of
section 36 of the Act and must yield to the statutory provision.
Rules are to be made pursuant to the power granted to the Federal
Government by the Legislature under section 77 of the Act and the
Jail Petition No. 191/2018
5
Federal Government cannot whilst exercising such power undo any
provisions of the Act.
6.
The matter of protocols is a technical matter in respect
whereof the courts do not have the requisite expertise, argues the
learned APG, and states that there are different protocols for
testing which is not a matter of legal determination by courts. The
matter of protocols concerns only technical experts therefore nondisclosure of protocols is inconsequential. The learned APG further
states that thousands of cases have already been decided and
convictions maintained even though protocols were not mentioned
in the narcotic test reports. The non-mentioning of protocols in the
reports does not cause any prejudice to the accused, and in the
eventuality that an accused does not accept the determination that
the seized substance is a narcotic substance or alleges that it was
not properly tested then its retesting could be requested and the
court may order it, the learned APG submits, however, if the report
accords with the prescribed Form-II then merely because the
particular protocols are not mentioned is inconsequential.
7.
The learned counsel for the petitioner exercising his right of
reply did not respond to any of the contentions of the learned APG
and simply reiterated his reliance upon the case of State v Imam
Bakhsh (above). He however states that on merits too the petitioner
has a good case and in this regard referred to the material
contradictions, discrepancies and other aspects of the testimonies
of the prosecution’s two main witnesses, namely, Constable Yasir
Ali (PW-1) and Sub-Inspector and complainant Abid Hussain (PW-
Jail Petition No. 191/2018
6
8.
We have heard the learned counsel for the parties and with
their assistance examined the record. The petitioner’s conviction
primarily rests on the testimonies of police Constable Yasir Ali
(PW-1) and Sub-Inspector and complainant Abid Hussain (PW-2).
Both these witnesses stated that when they were deployed at Police
Post Hattian they, in a private Honda car, drove to the place of
occurrence where they saw in the petitioner’s right hand a blue
shopping bag which after it was searched had 1430 grams of
suspected narcotic substance, which the chemical examiner’s
report states to be charas. Recovery memorandums were prepared
and PW-1 was a witness to these recovery memorandums (Exhibits
PA and PB) and the other witness to them was Constable Jehanzeb
Khan, but the prosecution did not produce him as a witness. PW-
1 stated that the place of occurrence, that is the place where the
petitioner was apprehended and arrested, “was at a distance of
about 2/3 kilometers towards west from police post” but PW-2
stated that, “the place of occurrence is at a distance of 1 kilometer
from the police post”. The discrepancy in the distance becomes
material when both these witnesses were shown to be performing
duties in the area. PW-1 and PW-2 stated that in addition to them
there was Constable Jehanzeb Khan and Constable Shoaib Afzal in
the said car, but neither remembered who was sitting in the front
seat next to the driving seat whilst remembering other minute
details such as noting, that the petitioner was holding the blue
shopping bag in his right hand. PW-1 did not know the owner of
the car and PW-2 stated that he, “had the private car from someone
on the basis of curtsy” [sic] but did not disclose the name of the
owner of the vehicle. The petitioner had throughout maintained
that he was roped into a false case because he and his wife ran
Jail Petition No. 191/2018
7
‘Muhammad Ali Public School’ and an influential of the area who
ran another school, ‘Al-Meenar Public School’, wanted to have the
petitioner’s school closed down as the petitioner and his wife’s
school competed with them. Both these witnesses professed
complete ignorance about the schools, which is surprising
considering they were serving in the area. Another significant
contradiction was that whilst PW-1 in his cross-examination stated
that upon seeing the policemen the, “accused had not run. I and
Shoaib Constable had over powered the accused” PW-2 stated that
when the, “accused saw us, he tried to run away but he was over
powered”. An unusual facet of this case is that having
apprehended and arrested the petitioner the PW-2 did not take him
to police station Hazro to register the FIR and instead deputed
Constable Jehanzeb Khan to take his written complaint, which he
wrote out when the petitioner was apprehended, to police station
Hazro Constable Jehanzeb Khan, “left place of occurrence on feet”
[sic] to the police station which was at a distance of 15/16
kilometers and the FIR was registered on the basis of said written
complaint. Constable Jehanzeb Khan was not produced as a
prosecution witness. Since police station Hazro was at a distance
of 15/16 kilometers from the place of occurrence it does not stand
to reason that Constable Jehanzeb Khan was directed to go there
on foot with the written complaint, whilst PW-2 (the complainant)
himself could easily have driven there in the said car. Constable
Jehanzeb Khan with the written complaint arrived at police station
Hazro at 3:30 pm while PW-2 reached there much later, at 5:00
pm. No explanation was offered by PW-2 what he was doing in the
intervening period. The manner in which this case was split up is
inexplicable; Constable Jehanzeb Khan was sent off with the
Jail Petition No. 191/2018
8
written complaint to the police station on foot while the
complainant with accused and the confiscated substance went
there by car. Constable Jehanzeb Khan traveling by foot arrived at
the police station an hour and a half earlier than the complainant
PW-2.
9.
The discrepancies in the testimonies of the two witnesses;
the purported lack of knowledge about certain things which they
ought to have remembered whilst having a photographic
recollection of other insignificant things; not knowing those things
which they should have; the fact that Constable Jehanzeb Khan
reached the police station before the complainant PW-2; the nonproduction of Constable Jehanzeb Khan who took the written
complaint and was an eyewitness of the occurrence and of the
recovery memorandums; and the inexplicable conduct of the
complainant PW-2 in not proceeding to the police station himself to
register the FIR are matters of concern and collectively of
incredulity. The conclusion therefrom that we draw is that the
prosecution had failed to establish its case against the petitioner
beyond reasonable doubt, or, at worst, that the petitioner was
involved in a false case for ulterior reasons.
10.
It would therefore not be safe to maintain the petitioner’s
conviction on the basis of such evidence. There is therefore no
need to consider the technical plea initially taken by the learned
counsel for the petitioner, in terms of the judgment in the case of
State v Imam Buksh and the significant submissions of the learned
APG.
11.
The learned trial judge took note that the witnesses had
contradicted themselves but brushed them aside, stating, that, the
Jail Petition No. 191/2018
9
contradictions were not material. The matter was also perfunctorily
attended to by the learned judges of the High Court.
12.
Therefore, for the reasons mentioned above we convert this
petition into an appeal and allow it by setting aside the impugned
judgments and by acquitting the appellant Minhaj Khan in the
case arising out of FIR No. 371 dated 14th December, 2016
registered under section 9(c) of the Act at police station Hazro. The
appellant be released immediately from jail, if not required to be
detained in connection with any other case.
Judge
Judge
Judge
Bench-III
Islamabad
14.01.2019
Approved for Reporting
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