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Petitioner: Shahzeb VS Respondent: The State, etc
Court Name: Lahore High Court Judge(s): Raja Shahid Mehmood Abbasi, Muhammad Tariq Nadeem Title: Shahzeb vs The State, etc Case No.: Crl. Appeal No. 72 of 2017 Date of Judgment:2022-06-09 Reported As: 2022 LHC 4638, PLJ 2022 Cr.C. 1524 Result: Appeal Allowed
JUDGMENT
JUDGMENT MUHAMMAD TARIQ NADEEM, J. This appeal is directed against the judgment dated 25-01-2017, passed by the learned Additional Sessions Judge, Rawalpindi, whereby at the conclusion of the trial, in case F.I.R No. 220 dated 13-05-2014, registered at Police Station R.A. Bazar , Rawalpindi, under Section 9(c) of the Control of Narcotic Substances Act, 1997, convicted and sentenced the appellant Shahzeb as under:- Under section 9 (c) of the Control of Narcotic Substances Act, 1997. Life imprisonment with fine of Rs.30,000/ - and in default of payment thereof the appellant was to further undergo S.I. for 01 year and 04 months. The benefit of section 382-B Cr .P.C. was also extended to the convict. 2. Precisely , the facts of the case as disclosed in FIR (Ex.P A/1) are that on 13-05-2014, at about 08:00 a.m. the contingents of police of Police Station R.A.Bazar , Rawalpindi, headed by Abid Hussain Shah, SI, complainant/I.O (PW.5) received spy information that a truck bearing registration No. 4943 Peshawar-Z coming from the side of Dhoke Syedian, in which huge quantity of narcotics was being brought and if raid is conducted, contraband would be recovered. On this information, survei llance was made and at 08:00 a.m., said truck reached there, which was being driven by Shahzeb, appellant whereas co-accused Islam shah (since PO) was sitting on front seat of said truck. Upon search of the loading portion of the truck, 35 toras (P1/1-35) and 2 Boras (P.2/1-2) of crushed dodas of post were recovered. On weighing each tora, it came to 32 kilograms whereas each bora weighed to 2 1/2 maunds. Total weight of recovered post was 33 maunds. Thereafter , he (PW.5) prepared complaint (Ex.P A) and sent the same to the Police Station for lodging of formal FIR through Abdul Waheed, HC. He (PW.5) separated 250 grams from each tora and 250 grams from each bora and made total 37 parcels and sealed the same with the monogram of AM and took all the toras and boras into possession vide recovery memo (Ex.PB), attested by the PWs. On personal search of Shahzeb, appellant Rs.39500/-, one mobile phone and his ID card were recovered, which were taken into possession vide recovery mem o (Ex.PC) attested by Tahir Sultan 4255/HC and Turab Ahmad 6169/C
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PWs, whereas upon personal search of co-accused Islam Shah (since PO) cash of Rs.1500/-, one mobile Samsung, and his ID card were recovered, which were taken into possession vide seizure memo (Ex.PD) attested by the op-cit PWs. Hence, the above-mentioned FIR. 3. After formal investigation, report under Section 173 of The Code of Criminal Procedure, 1898 was prepared and submitted before the learned trial Court. The appellant along with his co-accused Islam Shah (since PO) were sent to face the trial after delivering the copies of the documents in terms of Section 265-C of The Criminal Procedure Code, 1898, the learned trial Court framed the charge against them, to which they pleaded not guilty and claimed trial. During trial, the accused Islam Shah absconded and ultimately , he was declared proclaimed offender vide order dated 16-05-2015. The prosecution in order to advance its case, produced as many as five witnesses. Ghulam Shabbir , SI (PW.1) chalked out the formal FIR (Ex.P A/1). Abdul Ghaf far 4200/HC (PW.2) being moharrir malkhana kept the contraband as well as sample parcels in safe custody of malkhana and thereafter he handed over the sample parcels to Arif Hussain, 1479/C (PW.3), who deposited the same in the office of Chemical Examiner , Rawalpindi on 16-05-2014. Tahir Sultan 4255/HC (PW.4) was the recovery witness whereas Abid Hussain Shah, SI (PW.5) was the complainant as well as Investigating Of ficer of the case. The prosecution gave up Turab Ahmad 6169/C and Abdul Waheed, HC, PWs being unnecessary and after tendering in evidence report of Chemical Examiner , Rawalpindi (Ex.PE), closed its evidence. 4. After closure of prosecution evidence, statement of the appellant was recorded under Section 342 of the Code of Criminal Procedure, 1898 wherein he negated the allegation leveled against him and professed his innocence. In reply to a question that Why this case is registered against you and why the PWs deposed against you", the appellant replied as under:- "All the PWs are police officials and subo rdinates to IO. They can never take the chance to speak the truth before court and lose their jobs in the result. Therefore, they supported the fake story introduced by the IO. The IO who is author of this story , dishonestly supported the same and tried to show the fake progress before the high ups. I never drove the truck of contraband, nor the same was recovered from my possession at the time of alleged recovery , I was working as helper/conductor , at Pubby Adda Charsada. Accused Islam Shah (since P.O) who was known to me, called me from Pubby Adda by stating that his truck had gone out of order in Rawalpindi near Police Station R.A Bazar . As soon as I reached to help him, police arrested me there. The owner of the truck was a rich person who greased the palm of police, a huge amount was given to the IO, as result of which he was released and fake recovery was planted upon me. Neither I know how to drive a truck nor I have a driving license. As I was not in a position to bribe to police, therefore, I was made scapegoat in this case. I am innocent. All the said recovery of narcotics is fake." The appellant did not opt to appear as his own witness under Section 340 (2) Cr.P.C. in disproof of the allegation leveled against him, however , he produced Niaz Ali (DW .1) and Saif ul Malook (DW .2) in his defence evidence. 5. After hearing the arguments advanced by the learned counsel appearing on both sides, 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 and sentence of the appellant in the above stated terms. 6. We have heard the arguments advanced by the learned counsel for the appellan t as well as the learned Deputy Prosecutor General assiduously and perused the record minutely with their eminent assistance. 7. The detail of the prosecution case as set forth in FIR (Ex.P A/1) has already been mentioned in para No.2 of this judgment, therefore, there is no need to repeat the same. 8. After the careful scrutiny of the material available on record, we have come to the conclusion that the prosecution has failed to establish the safe custody of case property as well as the sample parcels to the police station and its safe transmission to the office of Chemical Examiner , Rawalpindi. The prosecution in order to prove its case against the appellant has examined as many as 05 PWs. We have noted that Abid Hussain Shah, SI, complainant/Investigating Officer (PW.5) during his cross examination stated that on 13-05-2014, he reached back to Police Station at 02:20 p.m. and recorded rapt No.26 in this regard, which is in his handwriting. Relevant portion of his statement reads as under:-
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"....On 13.5.2014, I reached back to Police Station at 2.20 p.m. I recorded rapt No.26 in this regard which is in my handwriting. In rapt No.26 Ex.DA, I have not mentioned that I handed over the case property and truck to Moharrar Malkhana. Same is the statement of Ghulam Shabbir , SI (PW .1), who during his cross examination stated as under:- "....It is correct that rapt No.19, the contents of complaint are not reproduced and only receipt of complaint Ex.PA and lodging of FIR is mentioned. In the said rapt, neither the names of the accused are mentioned, nor the kind and quantity of the contraband material is mentioned therein------------ I remained on duty till 6.00 p.m. of 13.5.2014. In rapt No.26 of daily register of 13.5.2014 Abid Hussain Shah, I.O of this case recorded his arrival in the P.S at 2.00 p.m. In aforesaid rapt No.26, the delivery of case property of this case to moharrir malkhana is not mentioned. In the roznamcha pertaining to 13.05.2014 till 6.00 pm no rapt is recorded regarding delivery of case property of this case to moharar malkhana by Abid Hussain Shah I.O of this case..." Moreover , Abdul Ghaf far 4200/HC, moharrir malkhana (PW .2) during his cross examination described as infra:- "....Register No.19 remains in my custody being moharar malkhana. Entry No.180 of register No.19 produced in the court pertains to case property of this case, soon as the case property is received to moharar malkhana, the same is entered in the said register in the order in which case properties are recorded. Column No.3 of the said register requires that entry of date and name of person of making delivery of articles be mentioned in the said column. It is correct that no date is mentioned in column No.3 against the relevant entry bearing No.180. Entry No.179 is relating to the delivery of case property of FIR No. 217 dated 10.05.2014. Entry No.178 pertains to FIR No.218 dated 12.05.2014. Volunteered that the entries are made in the order in which the case properties are received. No dates are mentioned in column No.3 against the entries of 178 and 179. Entry No.181 is pertaining to case FIR No. 219 and date of said FIR is also not mentioned. FIR No. 219/2014 is pertaining to the recovery of six bottles of liquor . No date is mentioned in column No.3 against the said entry ..." We are mindful to hold that it was the prime duty of the Investigating Officer to enter the factum of handing over the case property as well as sealed sample parcels and other recovered articles from the possession of the appellant in the relevant register of police station i.e. register No.2 but the same was not done in the present case which proved fatal to the prosecution case. The first provision of law relating to daily diary is section 44 of the Police Act, 1861 which is hereby reproduced as under for ready reference:- Section 44 in [The Police Act, 1861 44. Police- officers to keep diary .-- It shall be the duty of every officer in charge of a police- station to keep a general diary in such form shall, from time to time, be prescribed by the Provin cial Government and to record therein all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined. More so, section 167 of Police Order , 2002 is also very much relevant in the peculia r circumstances of the this case which is also hereby reproduced for facilitation:- 167. Maintenance of Daily Diary at a police station.- (1) A register of Daily Diary shall be maintained at every police station in such form as shall, from time to time, be prescribed and to record therein the names of all complainants, persons arrested, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined. (2) The District and Sessions Judge of the district may call for and inspect such Diary . According to Punjab Police Rules, 1934 in volume III and chapter No.22 reads the following rules relevant to registers to be kept and maintained at police station. RULE NO.22.45: REGISTERS: The following books shall be maintained at each police station in accordance with the rules hereinafter prescribed or referred to:- (1) The first Information Report Register and, in certain stations the Register of Petty Of fences. (2) The Station Diary .
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(3) Part I. Standing Order Book Part II. Circular and others orders. (4) Register of Absconders and Deserters. (5) Register of Correspondence. (6) Miscellaneous Register . (7) Cattle Pound Register . (8) Criminal Tribes Register . (9) The V illage Crime Register . (10) The Surveillance Register . 10-A. Bad Character Rolls despatched. 10-B. Bad Character Rolls received. (11). Index to History Sheets and Personal Files. (12). Register of information sheets despatched. 12-A. Copies of Information sheets received. (13) Minute Book for Gazetted Of ficers. (14) File Book of Inspection Reports. (15) The Register of Births and Deaths. (16) Register of Government Of ficials and Property . (17) Register of Licenses. (18) Receipts Books of Arms, Ammunition and military stores. (19) The Store Room Register . (20) Cash Accounts. (21) File Book of Road Certificates. (22) Printed Receipt Books. (23) (A) Police Gazette. (B) Criminal Intelligence Gazette. (24) Police Rules. (25) Charge notes of of ficers in charge of police stations. RULE NO.22.46: GENERAL ORDERS REGARDING ST ATION REGISTRS: (1) No alteration in the form or method of keeping the books and no addition to their number may be made without the sanction of the Inspector General being previously obtained. (2) Every station register shall be paged in English. In the case of all registers except Parts I, II, III and IV of register No. (9) and registers 10(B), II and 12(A) this shall be done in the office of the Superintendent before issue to a police station. No page may be torn out of the station registers. Any correction which it may be necessary to make shall be made by drawing a line through the mistake so as to leave the words erased legible and by writing in the corrected words afterwards or in the margin. A piece of paper shall not be pasted over a mistake. (3) All entries shall be neatly and clearly written and all corrections shall be atteste d by the signature of the officer making them. If words or lines are omitted form any entry , or if any entry is omitted altogether , no interpolation shall be made. The omission shall be supplied by a fresh entry in the regular course. English figures alone shall be used in all of ficial papers and registers. Note: Seals of a uniform pattern have been provided for each police station and for the offices of Superintendents and Deputy Inspectors-General and no deviations shall be allowed from the sanctioned design when seals are renewed from contingencies, or new seals are procured for additional stations. RULENO: 22.70: REGISTER NO. XIX: This register shall be maintained in Form 22.70. With the exception of articles already included in register No. XVI every article placed in the store-room shall be entered in this register and the removal of any such article shall be noted in the appropriate column. The register may be destroyed three years after the date of the last entry . Form register No.XIX in Punjab Police Rules,1934 is as follows: FORM NO.22.70 _________ POLICE ST ATION, _____________ DISTRICT Register No. XIX. - Store-Room Register (Part I). Column 1. Serial No. 2. No of first information report (if any), from whom taken (if taken from a person), and from what place. 3. Date of deposit and name of depositor .
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4. Description of property . 5. Reference to report asking for order regarding disposal of property . 6. How disposed of and date. 7. Signature of recipient (including person by whom despatched. 8. Remarks. (To be prepared on a quarter sheet of native paper) Furthermore, sections 22.48 and 22.49 of Police Rules, 1934 are pertaining to register No. 2 (register roznamcha) of the police station. Both the said rules are also hereby mentioned as under for ready reference:- Rule 22.48 of the Police Rules 1934, Rule 22.48. Register No. II. - (1) The Daily Diary shall be maintained in accordance with section 44 of the Police Act. It shall be in Form 22.48(1) and shall be maintained by means of carbon copyi ng process. There shall be two copies. One will remain in the police station register and the other shall be dispatc hed to a Gazetted Officer to be designated by the Superintendent of Police or to the Superintendent of Police himself every day at the hour fixed in this behalf. Shortly before the close of each quarter , books containing the proper number of pages for the ensuing three months shall be issued to police stations by the Superintendent. The Superintendent shall fix the hours at which station diaries shall be daily closed with reference to the hour of dispatch of the post or messenger (2). The daily diary is intended to be complete record of all events which take place at the police station. It should, therefore, record not only the movement s and activities of all police officers, but also visits of outsiders, whether official or non-of ficial, coming or brought to the police station for any purpose whatsoever . (3) All entries in the station diary shall be made by the officer in charge of the police station or by the station clerk. Literate officers making a report shall read the report re-corded and append their signatures. Every matter recorded in such diary shall be so recorded as soon as possible; each separate entry shall be numbered and the hour at which it was made shall commence each such entry . If the hour at which the information, or otherwise, containing such entries reaches the police station differs from the hour at which such entry was made, both hours shall be stated. As soon as entry has been made in the diary , a line shall be drawn across the page immediately below it. (4) The opening entry each day shall give the name of each person in custody , the of-fence of which he is accused, and the date and hour of his arrest, the name of each accused person at large on bail or recognizance and the date of his release on such security . The last entry each day shall show (a) the balance of cash in hand as shown in the cash account, and (b) the balance of the cattle-pound account. Rule 22.49 of the Police Rules 1934, Rule 22.49. - Matters to be entered in Register No. II - The following matters shall, amongst others, be entered:- (a) The number and description of cattle seized in connection with cases or on suspicion with a reference to the case or report. (b) The day, hour and purpose of visits to the police station of persons registered under the Criminal Tribes Act and of convicts released under the Remission Rules or under section 56, Code of Criminal Procedure, together with the names of such persons. (c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note. - The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained. (d) Every police officer of or above the rank of head constable, when returning from duty other than an investigation in which case diaries are submitted, shall have an entry made in the daily diary by the station clerk or his assistant showing the places he has visited and the duties performed by him during his absence from the police station. (e) All admission to and releases from the cattle pound with the amounts of fines realised. (f) The hour of receipt and despatch of all communications, property , cash, etc., giving reference to the number in the correspondence register . Note. - The word "communications" shall be taken to include the reports required by
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Police Rule 25.57(2)(ii) and Police Rule 27.1(1)(ii), to be sent to Panchayats. (g) Information of the commission of non-cognizable offences (rule 24.3) including reports of enmities likely to lead to a breach of the peace (rule 23.32); visits of chaukidars to police stations [rule 21.3(4)] and demands by the police of one jurisdiction for assistance in extradition cases from the police of another juris-diction [rule 26.10(7)] (h) All arrivals at, and dispatches from, the police station of persons in custody , and all admissions to, and removals from, the police station lock- ups, whether temporary or otherwise, the exact hour being given in every case. (i) The hour and date of receipt and (separately) or service or execution of each process; and hour and date of return made to such process. (j) The report regarding property in the store-room required by rules 22.15 and 22.18(2). (k) The report regarding excess of expenditure over the permanent advance as re-quired by rule 22.71. (l) The entrance of persons, by permission, into a tahsil treasury after of fice hours. (m) The deposit in, or removal from, the post office safe in the Police Station of any article whatsoever the exact hour being given in every case. Note. - Every such entry shall contain detail of the article deposited or removed and shall be signed by the Sub or Branch Postmaster ef fecting the deposit or removal. (n) A reference to every information relating to the commission of a cognizable of-fence, and action is taken under section 157, Code of Criminal Procedure, the number and date of the first information report submitted. In the eventuality of supra mentioned discussion, we are of the firm view that if a thing is required to be done in a particular manner that should be done in that particular manner and not otherwise. Reliance is placed upon the case titled as "Irfan Ali alias Ghulam Raza alias Ramzan vs. The State" (2011 YLR 522) wherein this Court held as under:- "...we are reminded of a maxim "A comm uni observantia non est recedendum". Where a thing was provided to be done in a particular manner , it had to be done in that manner and if not so done, the same would not be lawful. Therefore, we see that on this score alone, the trial stands vitiated. 9. After perusal of evidence on record, we find that the prosecution has not established the safe custody of contraband to the police station as well as safe transmission of sample parcels to the office of chemical analyst. In the trial, it was essential for the prosecut ion to establish through cogent and convincing evidence that the alleged contraband was seized from the possessi on of the accused and was kept in safe custody in the Malkhana at police station and thereafter samples separated from each tora/bora of contraband were sent to the office of Chemical Examiner , Rawalpindi for analysis but there is no explanation for its failure to establish safe custody of recovered contraband. The samples so deposited in the office of Chemical Examiner , Rawalpindi on 16-05-2014 could not be tagged with samples taken from the seized substance from the possession of the appellant. There is, thus, no evidence to connect the report of Chemical Examiner , Rawalpindi (Ex.PF) with the substance that was seized from the possession of the appellant. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner , Rawalpindi without the same being tampered with or replaced while in transit. Reliance is placed upon the case titled as "The State through Regional Director ANF Vs. Imam Bakhsh and others" (2018 SCMR 2039 ) wherein, at paragraph No.9, the Apex Court of the country , has been pleased to observe as under:- "9 we have noted above that in Crl. Appeals No. 523 to 525/2017 and No. 22/2018, safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized drug by the police and includes the separation of the representatives sample(s) of the seized drug and their dispatch to the narcotics Testing Laboratory . This chain of custody , is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory . The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and
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vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. The Court has already held in Amjad Ali Vs. The State (2012 SCMR 577) and Ikramullah Vs. The State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established,…
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