9c accused acquittal on the ground of that in recovery memo Police Station name and FIR number was not enter
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| 9c recovery memo case law. |
منشیات کا ملزم اس گراؤنڈ پر بری ھوا کہ برآمدگی کی فرد میں پولیس اسٹیشن کا نام اور پرچے کا نمبر درج نہ تھا۔
فیصلے میں عدالت نے درج ذیل اہم نکات پر ریمارکس دیے:
1. **تحقیقات اور برآمدگی کے عمل میں نقائص**: عدالت
نے نشاندہی کی کہ چرس کی برآمدگی کے دوران ضروی
قانونی تقاضے پورے نہیں کیے گئے تھے۔ خاص طور پر، برآمدگی کے میمو میں ایف آئی آر کا نمبر، تاریخ، اور پولیس اسٹیشن کا نام شامل نہیں تھا، جس سے دستاویز کی سچائی پر سوال اٹھتا ہے۔
2. **گواہوں کے بیانات میں تضاد**: گواہوں نے مختلف
بیانات دیے، جن میں برآمدگی کے میمو کی تصدیق میں تضاد شامل تھا۔ عدالت نے اس بات کو سنجیدہ مسئلہ قرار دیا اور استدلال کیا کہ یہ نقائص ملزم کی حقائق کے مطابق برآمدگی کی تصدیق کو متاثر کرتے ہیں۔
3. **بنیادی اصولوں کی پیروی**: عدالت نے بنیادی اصولوں
پر زور دیا کہ کسی بھی شک کی صورت میں ملزم کو فائدہ دینا عدالت کی ذمہ داری ہے۔ کسی بھی مقدمے میں، اگر تفتیش یا برآمدگی کے عمل میں نقائص ہوں تو اس کا فائدہ ملزم کو دیا جاتا ہے۔
4. **غلطیوں کی بنیاد پر فیصلہ**: عدالت نے یہ بھی کہا
کہ اگرچہ مقدمہ کی سماعت کے دوران ملزم کے خلاف الزامات ثابت کرنے کی کوشش کی گئی، لیکن عدالتی نقائص اور دستاویزات میں موجود غلطیوں کی بنا پر مقدمہ کی بنیاد کمزور تھی۔
ان ریمارکس کی بنیاد پر، عدالت نے نایئر عباس کی سزا کو کالعدم قرار دیا اور انہیں بری کر دیا۔
فیصلے کا منفرد نقطہ یہ ہے کہ عدالت نے برآمدگی کے میمو میں ایف آئی آر نمبر اور پولیس اسٹیشن کا نام نہ ہونے کی وجہ سے اسے مشکوک قرار دیتے ہوئے ملزم کو فائدہ دیا، اور اس بات پر زور دیا کہ شفافیت کے بغیر برآمدگی کا کوئی قانونی وزن نہیں۔
Must read Judgement
Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT, MULTAN BENCH
MULTAN
JUDICIAL DEPARTMENT
Criminal Appeal No.549 of 2023
(Nayyar Abbas.
Vs.
The State etc.)
JUDGMENT
DATE OF HEARING:
13.02.2024.
APPELLANT BY:
Ch. Umar Hayat, Advocate assisted by
M/s. Amer Manzoor, Muhammad Waqas
Anjum and Syed Naeem Ali, Advocates.
STATE BY:
Mr. M. Abdul Wadood, Addl. Prosecutor
General and Malik Riaz Ahmad Saghla,
Deputy Prosecutor General.
ANWAARUL HAQ PANNUN, J:- Nayyar Abbas, the
appellant, was tried in criminal case registered vide F.I.R No.458/2022
dated 16.08.2022, offence under Section 9(c) of the Control of Narcotic
Substances Act, 1997, at Police Station Qadirpur Raan, Multan, as
allegedly recovery of two packets of charas total weighing 2250 grams
was effected out of his possession.
2.
After usual investigation, the appellant was sent up to face
trial. Formal charge was framed against the appellant to which he
pleaded not guilty and claimed trial. The prosecution examined five
witnesses i.e. Sanobar Ali, ASI (PW-1/complainant), Muhammad Hanif,
S.I (PW-2/Investigating Officer and transmitter of case property), Abdul
Majeed, 2713/C (PW-3/witness of recovery memo Exh.PA), Asif Sultan,
938/HC (PW-4/scribe of formal FIR and Moharrar of police station) and
Abdul Razzaq, 1314/C (PW-5/transmitter of complaint Exh.PA) to prove
the charge. Thereafter, statement of the appellant under Section 342
Cr.P.C was recorded, in which he refuted all the allegations levelled
against him and professed his innocence. The appellant did not opt to
appear as his own witness under Section 340(2) Cr.P.C, however, h
Criminal Appeal No.549 of 2023
2
produced the documents (Ex.DA, Ex.DB and Mark-C) as his defence
evidence. On conclusion of trial, the learned trial Court, vide its
judgment dated 15.05.2023, has convicted the appellant under Section
9(c) of C.N.S.A, 1997 and sentenced him to five years and six months
R.I. along with fine of Rs.25,000/- and in default thereof to further
undergo five months and fifteen days S.I. Benefit of Section 382-B
Cr.P.C has, however, been given to the appellant.
3.
Arguments heard. Record perused.
4.
The legislature in its own enviable wisdom, while
consolidating and amending the laws relating to criminal procedure, at
the fag end of 19th Century, enacted the Code of Criminal Procedure
(Act of V of 1898) which is commonly known as the Code. It came into
force on the first day of July 1898. The Code provides a uniform law of
procedure so far as criminal branch of administration of justice is
concerned. The Code also contains in it the provisions specifying the
procedure, including the mode and manner along with the authority for
making search either of a person or a place besides enumerating the
circumstances warranting such exercise. A police officer is authorized to
search a person if arrested by him under a warrant providing for taking
of bail or without warrant or by a private person. A search may be made
of such person for placing in safe custody all articles other than
necessary wearing apparels found upon him; a mode of searching of a
woman has to be made, if necessary, by another woman with strict
regard to decency; the police officer is also authorized to arrest any
person without warrant, in whose possession anything is found which
may reasonably be suspected to be stolen property and who may
reasonably be suspected of having committed an offence with reference
to such thing; the officer in-charge of a police station or a police officer
making an investigation, having reasonable grounds for believing that
anything necessary for the purpose of investigation into an offence
which he is authorized to investigate, may be found in any place within
the limits of police station, of which he is in-charge or to which he is
attached and that such thing cannot in his opinion otherwise be obtained
Criminal Appeal No.549 of 2023
3
without undue delay may after recording in writing the grounds of his
belief and while specifying in such writing so far as possible, the thing
for which search is to be made, make such search or cause such search
to be made for such thing in any place within the limits of such police
station; the officer incharge of police station is required another to issue
search warrant. [Under Sections 51, 52, 54, 165 and 166 Cr.P.C.
respectively]. The Chapter VII Part-D of Cr.P.C is comprised over
General provisions relating to searches i.e. 101 to 105, out of which,
the provision of Section 103 Cr.P.C specifically requires that whenever a
search of a place is to be made by a police officer under this Chapter,
two or more respectable inhabitants of the locality are required to attend
and witness the search. He may issue an order in writing to them or any
of them to associate with search, consequently the search shall be made
in presence of such witnesses and a list of all things seized in course of
said search and of places in which they are respectively found, shall also
be prepared by such officer or other person and it shall also be signed by
such witnesses. No person witnessing the search under this Section
shall be required to attend the Court as a witness of search unless he
has specifically been summoned by the Court. Moreover, the
occupant of place searched or some person on his behalf shall in every
instance be permitted to attend the search and a copy of list prepared and
signed by the said witness shall be delivered to such occupant or person
incharge of the close place allowing such search at his request. This
provision of law has been subjected to interpretation by the Superior
Courts. A judicial consensus has however emerged to the effect that
Section 103 Cr.P.C is not stricto senso applicable where accused in
pursuance of making of his disclosure, during investigation leads to
some recovery. Similarly, in case, the recovery is effected from personal
search of an accused or otherwise, by the police officer, the requirement
provided for showing a reason for not doing so, association of two
respectable persons of the locality may be dispensed with. Unless it is
shown by the prosecution that in the circumstances of the case it was not
possible to have two musheer from the public, the requirement of two
Criminal Appeal No.549 of 2023
4
members of the public of the locality in recovery proceedings is
mandatory. The police officials, in absence of any malice or grudge
against the accused, on their part, had also been held to be as good
witnesses of recovery as the respectable of the locality.
5.
The United Nations (UN), International Organization was
established on October 24, 1945. The United Nations (UN) was the
second multi-purposes international organization established in the 20th
century that was worldwide in scope and membership. Its predecessor,
the League of Nations, was created by the Treaty of Versailles in 1919
and disbanded in 1946. According to its Charter, the UN aims:-to save
succeeding generations from the scourge of war,….to reaffirm faith in
fundamental human rights,… to establish conditions under which justice
and respect for the obligations arising from treaties and other sources of
international law can be maintained, and to promote social progress and
better standards of life in larger freedom. In addition to maintaining
peace and security, other important objectives include developing
friendly relations among countries based on respect for the principles of
equal rights and self-determination of peoples; achieving worldwide
cooperation to solve international economic, social, cultural, and
humanitarian problems; respecting and promoting human rights; and
serving as a center where countries can coordinate their actions and
activities toward these various ends. By and large all the nations/
countries after becoming its members and signing undertake to fulfil
their obligations duly caste upon them being signatories of the
charters protocols etc. Through certain International Conventions
various steps have been taken by the members of the United Nations at
various times. The convention against psychotropic substances done at
Viena on 21st February 1971 followed by the Single Convention on
Narcotic drugs done at New York on 30 March i.e. (i) The Single
Convention on Narcotic Drugs done at New York on the 30th March,
1961, as amended by the 1972 Protocol done at Geneva on the 25th
March, 1972; (ii) The Convention Against Psychotropic Substances done
at Vienna on the 21st February, 1971; (iii) The United Nations
Criminal Appeal No.549 of 2023
5
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances done at Vienna on the 20th December, 1988.
6.
The legislature deeming it expedient to consolidate and
amend the laws relating to narcotic drugs, psychotropic substances,
[controlled substances] and control the production, processing and
trafficking of such drugs and [to provide for forfeiture of property
derived from or used in illicit traffic in narcotic drugs, psychotropic
substances and controlled substances and to implement the provisions of
the International Conventions on narcotic drugs, psychotropic substances
and controlled substances]; passed a special law, having overriding
effect on other laws on the subject, in the form of The Control of
Narcotic Substance Act (XXV) of 1997 hereinafter to be called as CNSA
and it received the assent of the President of Islamic Republic of
Pakistan on 7th July, 1997 as required under Article 75 of the
Constitution. Pakistan is an abiding member of the United Nations(UN).
For achieving its object as aforesaid, behind the legislation, the
provisions contained in Chapter III “SEARCH AND
INVESTIGATION” of CNSA also provide a mechanism for conducting
the proceedings viz-a-viz search and investigation. These provisions (20
to 24) distinctly deals with the power to issue warrants; entry, search,
seizure and arrest without warrant; seizure and arrest in public place;
stop and search conveyance; under cover and controlled delivery
operations. However, under Section 25 of CNSA, except the provision of
Section 103 of Cr.P.C, the remaining provisions of Code, have mutatis
mutandis, been made applicable to all searches and arrest in, so far as,
they are not inconsistent with the aforesaid Provisions of the ibid Act. It
is important to point out that as a result of arrest of a suspect or
search of a place, as aforesaid, committing or disclosing the
commission of an offence under this Act, as a mandatory legal
requirement, a document has to be prepared, showing the recovery
made either from the possession or on pointing out of an accused.
Such document also known as recovery memo, is deemed to be a
foundational document particularly in case of theft and the cases
Criminal Appeal No.549 of 2023
6
under CNSA, to undertake further investigation after registration of
a formal FIR. One of the object behind preparing the recovery memo at
the spot with its due attestation by the witnesses is to ensure the fairness
of the process of recovery so as to exclude the possibility of fabrication,
misappropriation or damage to the seized articles either to favour an
accused or for his false implication. The recovery memo must contain
all relevant particulars of the things seized or taken into possession to
establish its identity beyond any doubt. The requirement behind
attestation of a recovery memo by the marginal witnesses at the spot is a
part of an attempt to ensure that the recovery has transparently been
effected as fulfillment of such requirements is necessary to exclude the
possibility of false implication or any manipulation prompted by the
human weaknesses and to prevent the abuse of process of law and
misuse of authority. The attestation of the recovery memo by two
witnesses acting as musheer also ensures that a single person at his
whims may not abuse the process of law and misuse his authority. The
preparation of such recovery memo is also necessary to prove the case
by the prosecution at trial against the accused. The Hon’ble Supreme
Court in the case of “Zafar Khan and others Vs. The State” (2022
SCMR 864) emphatically held as under:-
“In the cases of narcotic substances, recovery memo
is a basic document, which should be prepared by
the Seizing Officer, at the time of the recovered
articles, containing a list thereof, in presence of two
or more respectable witnesses and memo to be
signed by such witnesses. The main object of
preparing the recovery memo at the spot and with
signatures of the witnesses is to ensure that the
recovery is effected in presence of the marginal
witnesses, honestly and fairly, so as to exclude the
possibility of false implication and fabrication.
Once the recovery memo is prepared, the next step
for the prosecution is to produce the same before the
Trial Court, to prove the recovery of the material
and preparation of the memo through the scribe and
the marginal witnesses.”
7.
It may further be observed that the fulfillment of above
emphasized mandatory requirement in preparation of a recovery memo,
Criminal Appeal No.549 of 2023
7
is also essential for framing of a charge by the Court. The framing of a
proper charge against the accused under Chapter XIX of Cr. P.C, enables
him to defend his position. It has rightly been held in case of “Mumtaz
Ali and another Versus The State”(2000 P Cr.L J 367[Karachi]) by an
Hon’ble Division Bench that “the charge must contain all material
particulars as to time, place as well as specific name of the alleged
offence, the manner in which the offence was committed and the
particulars of the accused so as to afford the opportunity to explain the
matter with which he is charged. The purpose behind giving such
particulars is that the accused should prepare his case accordingly and
may not be mislead in preparing his defence.” A defective charge
seriously prejudice the cause of the accused. The fulfilment of abovesaid
requirement is also relevant to achieve the objects deeply ingrained in the
provision of Article 10-A of the Constitution of Islamic Republic of
Pakistan, 1973 as a one of the fundamental right, which requires that
“For the determination of his civil rights and obligations or in any criminal
charge against him a person shall be entitled to a fair trial and due process.”.
8.
While taking into consideration the relevant provisions of
law, i.e. Code of Criminal Procedure, 1898, Police Rules (22.16, 22.18,
22.70, 27.11, 27.12) of 1934, Qanun-e-Shahadat Order, 1984(X of
1984), [The Lahore High Court Rules and Orders (civil and criminal)
(“High Court Rules”) Part-B of Chapter 24 of Volume III], [Control of
Narcotic Substances (Government Analysts), Rules 2011], rules and case
law on the subject as to the case property and exhibition thereof, the
Hon’ble Supreme Court of Pakistan in the case of “Ahmad Ali and
others Versus The State” (2023 SCMR 781) except the form of recovery
memo, thus the same is being dealt with hereinafter, has exhaustively
dealt with this subject. The Police Act of 1861, was one of such a piece
of legislation, which was adopted through the adoption of Central Acts
and Ordinances Order of 1949, repealed by the Police Order, 2002. The
Police Rules 1934 framed under the Police Act 1861 have however been
protected under Article 185 of the Police Order, 2002. Rule 22.16 of the
Police Rules, 1934 (“the Police Rules”) deals with the “Case property”.
Criminal Appeal No.549 of 2023
8
Sub-rule(1) thereof requires, inter alia, that in certain circumstances,
police shall seize weapons, articles and property in connection with
criminal cases taking charge of property which is unclaimed i.e. when
the officer in-charge of police-station forwards an accused person to a
Magistrate or takes security for his appearance before such Magistrate
under this section, he shall send to such Magistrate any weapon or other
article which it may be necessary to produce before him, and shall
require the complainant (if any) and so many of the persons who appear
to such officer to be acquainted with the circumstances of the case as he
may think necessary to execute a bond to appear before the Magistrate
as thereby directed and prosecute or give evidence (as the case may be)
in the matter of the charge against the accused; in the course of searches
made in Police Stations; Search of arrested person; Search by Police
Officer making an investigation; when officer incharge of Police Station
may require another to issue search warrant; inspection of weight and
measures; Powers to Police to seize property suspected to be stolen; and
with regard to unclaimed property and (g) under the provision of local
and special laws. [Sections i.e. 170, 51, 165, 166, 153, 550 of Cr.P.C, 25
of the Police Act]. Sub-rule (2) thereof provides, inter alia, that each
weapon, article or property (not being cattle) seized under the above subrule shall be marked or labelled with the name of the person from whom,
or the place where, it was seized, and reference to the case diary or other
report submitted from the police station. If articles are made up into a
parcel, the parcel shall be secured with sealing wax, bearing the seal
impression of the responsible officer, and shall similarly be marked or
labelled. Such articles or parcels shall be placed in safe custody,
pending disposal as provided by law or rule. Sub-rule (3) thereof
provides, inter alia, that the police shall send to headquarters or to
magisterial outposts all weapons, articles and property connected with
cases sent for trial, as well as suspicious, unclaimed and other property,
when ordered to do so by a competent Magistrate. Sub-rule (4) thereof
provided, inter alia, that motor vehicles detained or seized by the police
in connection with cases or accidents shall be produced before a
Criminal Appeal No.549 of 2023
9
Magistrate after rapid investigation or by means of in-complete challan.
The evidence relating to the identity or condition of the vehicle should
be led and disposed of at an early date, and the Magistrate should then be
invited to exercise the discretion vested in him by section 516-A, Code
of Criminal Procedure, to order that the vehicle be made over to the
owner pending conclusion of the case on security to be produced
wherever demanded by the Court. It may be observed that the police
rules are fully invokable and are to be followed by the police officer
while conducting investigation and in Chapter-XXV, Rule 25.23 (1) (a),
(b) and (c) of the Police Rules, 1934, a synopsis of a model form for
preparing a memo of recovery or things to be seized under Section 103
of Cr.PC has been prescribed which can be used by making besuiting
changes in it. Although under the provision of Section 25 of CNSA,
except Section 103 Cr.P.C, rest of the provisions of the Code of Criminal
Procedure, have been made applicable mutatis mutandis, to all searches
and arrests in so far as they are not inconsistent with the provision of
Section 20,21,22 & 23 of the Act and no bar has been placed against
following the police rules, regulating the investigation i.e. the process of
collection of evidence. It may be observed that Section 25 of CNSA,
only bars the requirement of association of two respectable persons from
the locality when the search is made of a house and the association of the
person or inmate of the house or the place, as observed hereinabove, in
the preceding paragraph No.4 of the judgment.
9.
We have noticed that recovery memo of charas (Exh.PA)
neither contains the number nor the date of the F.I.R nor the name of
police station. When the complainant (PW-1) was confronted with the
aforementioned factum of non-mentioning the number of FIR, date and
name of police station in the recovery memo (Exh.PA), during his crossexamination, he had replied as follows:-“When Abdul Razzaq returned
at the spot while taking FIR with him I got mentioned the case FIR
number on recovery memo as 458/22. At this stage, the witness has
perused the record and replied and case FIR number is missing. He
further has deposed that the said case FIR number is also not available
Criminal Appeal No.549 of 2023
10
on recovery memo.” PW-1 has further admitted that “in recovery memo
Exh.PA there is no specific mention of place where the contraband was
allegedly recovered from the accused”. Furthermore, the recovery
witness (PW-3) in his cross-examination has also deposed that “I don’t
remember as to what case FIR number was written on the recovery
memo Exh.PA at the time when I signed the same”. In view of
aforementioned depositions of the PWs, serious doubt is caste upon the
authenticity of preparation of recovery memo (Exh.PA). Moreover, tenor
of the testimonies of aforesaid prosecution’s witnesses clearly reveals
that the recovery memo (Exh.PA) was prepared after registration of the
F.I.R in this case, therefore, no legal sanctity can be attached to such
document. In the above context, reliance is placed on the dictums
reported as Zafar Khan and another vs. The State (2022 SCMR 864) and
The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar
vs. Fayaz Khan (PLD 2019 Federal Shariat Court 21). It is cardinal
principle of criminal jurisprudence that a single instance causing a
reasonable doubt in the mind of the Court entitles the accused to the
benefit of doubt not as a matter of grace but as a matter of right.
Moreover, once a single loophole/lacuna is observed in a case
presented by the prosecution, the benefit whereof in the prosecution
case automatically goes in favour of an accused. Reliance in this
regard is placed on the dictums reported as Daniel Boyd (Muslim
Name Saifullah) and another v. The State (1992 SCMR 196); Gul
Dast Khan v. The State (2009 SCMR 431); Muhammad Ashraf alias
Acchu v. The State (2019 SCMR 652); Abdul Jabbar and another v.
The State (2019 SCMR 129); Mst. Asia Bibi v. The State and others
(PLD 2019 SC 64); Muhammad Imran v. The State (2020 SCMR
857) and Muhammad Imtiaz Baig and another v. The State through
Prosecutor General, Punjab, Lahore and another (2024 S C M R
1191). Therefore, the conviction and sentence recorded by the learned
trial Court against the appellant through the impugned judgment dated
15.05.2023 are set aside and he is acquitted of the charge. The appellant
Criminal Appeal No.549 of 2023
11
is in jail, he shall be released forthwith if not required in any other case.
Accordingly, this appeal is allowed.
(CH. ABDUL AZIZ)
(ANWAARUL HAQ PANNUN)
JUDGE
JUDGE
APPROVED FOR REPORTING.
JUDGE
JUDGE
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