JUDGMENT IJAZ AHMAD, J.---The appellant Hayat Khan was challaned in case F.I.R. No.306 dated 27-6-2001, registered under section 9(c) C.N.S.A., 1997 at Police Station Westridge, Rawalpindi. After the conclusion of the trial he was convicted under section 9(c) C.N.S.A., 1997 by the learned Additional Sessions Judge, Rawalpindi vide impugned judgment dated 29-5-2004 and sentenced to life imprisonment with fine of Rs. 50,000 and in default of payment of fine, he would further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was also extended to him. Feeling aggrieved the appellant has preferred the present Criminal Appeal No.11 of 2008 against his conviction and sentence.
2. According to story of F.I.R., Pervaiz Iqbal the Custom Inspector received information from Superintendent Customs on 27-6-2001, that a bus No.LXP3150 was approaching from Kohat bound to Rawalpindi carrying amongst its passenger two persons with heavy quantity of narcotics substance. A raid party was formed and the road was blocked at the bridge on Fateh Jung Road Rawalpindi. The approaching bus was intercepted. On search conducted by Pervaiz Iqbal P.W.1 two tins, one containing 15 K.G of Charas wrapped in 15 envelopes of salofeen and the other containing 9 K.g Charas wrapped in 8 packets of salofeen was recovered from the Bus top. On inquiry from the passengers Hayat Khan, the appellant and Farid co-accused claimed the dirty cargo. The accused were arrested. Two samples each weighing 20 grams were taken from each tin for chemical analysis and were secured vide memo Exh.PA. The remaining mass of the narcotics substance was secured through the recovery memo Exh.PB and was deposited in the State warehouse in Islamabad Airport. The samples taken were sent for chemical analysis. According to duplicate copy of the report prepared and signed by the chemical examiner, Government of Punjab Rawalpindi dated 11-7-2001 one sealed parcel contained Charas while the other contained Ganja.
Both the substances can be used for intoxication. The complaint Exh.PD was prepared by Pervaiz Iqbal, Customs Inspector P. W.1. And was sent for registration of case. Resultantly formal F.I.R. No.306 was lodged. On receipt of the report under section 173, Cr.P.C. Formal charge was framed against both the accused under section 9(c) C.N.S.A., 1997. In consequence of the report of the doctor, the co-accused Farid was declared juvenile. The S.H.O. Was directed to submit separate challan against him before the Juvenile Court. The present appellant/ accused pleaded not guilty and claimed trial. The prosecution examined four witnesses. Pervaiz Iqbal, Customs Inspector P. W.1 has had conducted search and recovery proceedings, sent the samples and arrested the accused.
Asmat Hussain constable P.W.2 was a member of the raid party. He searched the bus and made the recoveries. He is also the witness of the recovery memos. P. W.3 Moeed Muhammad Khan Inspector Custom investigated the case, recorded the statements of P. Ws. Under section 161, Cr.P.C.
And submitted the challan against the accused, P.W.4 Dawood Ahmad is the Incharge of the State warehouse where two sealed tins, one containing Charas and the other containing garda Charas were kept. After conclusion of prosecution evidence the appellant had his statement recorded under section 342, Cr.P.C. He denied the allegations levelled against him and pleaded innocence.
He did not produce evidence in his defence and did not appear as a witness under section 340(2), Cr.P.C.
3. It is contended by the learned counsel for the appellant that the chemical report Exh.PF is the copy of the original.
The original document has not been produced. There is no proof that the original has either lost or has been stolen or destroyed therefore the duplicate copy cannot be read as secondary evidence to prove the contents of the chemical analysis report; that as per the contents of F.I.R. And the statements made by the witnesses, two tins one containing the Charas and other containing the garda Charas were recovered. There is no proof that the samples taken from those tins and sent for chemical analyasis have resulted in positive. It cannot be said that the substance was a narcotics substance; that even if the chemical analysis report Exh.PF is taken into consideration it shows that one sample contained Charas and the other Ganja. The report is contrary to the samples sent and the statements made by the witnesses; that one ring of the chain regarding the transmission of the samples is missing, which renders the prosecution case highly doubtful; that the prosecution case regarding the recovery of the narcotics is not plausible; that the appellant/accused if possessed the minimum level of sanity, could not claim the ownership of the narcotic substance, while sitting in a bus packed to its capacity.
4. On the other hand, learned D.P.-G. Supports the conviction ordered and the judgment passed. It is contended that the appellant along with his co-accused was apprehended while transporting the narcotics substance lying on the Bus stop, he claimed the ownership of the substance; that there is no malice apparent in the record on the part of the complainant to falsely indicate appellant in the case and that the minor discrepancies do not warrant the acquittal of the appellant.
5. We have heard the learned counsel for the appellant and the learned D.P.-G. And have also gone through the record.
6. A very important link in the chain regarding the transmission of the sample is missing. No witness has appeared to prove the transmission of the sample from the State customs warehouse to the chemical examiner's office. It cannot therefore be said that the sample taken sent and submitted in the laboratory was the same and was not tampered. Reliance is placed on 1993 PCr.LJ 2287 titled The State v. Muhammad Aslam and 1994 PCr.LJ 482 titled Mst. Miraj v. The State. The report of the chemical examiner Exh.PF showing one sample being Charas and the other being Ganja cannot be relied upon for ordering the appellant's conviction. The report is the duplicate of the original. It does not bear the signature of the chemical examiner. There is no proof that the original had been lost.
Articles 72 of the Qanun-e-Shahadat Order 1984 provides that the contents of a document may be proved through primary or secondary evidence. It can only be proved through the secondary evidence if the conditions mentioned under Article 76 of the above order are available. Since the conditions enumerated therein are not available therefore the document could not be proved through secondary evidence. Reliance is placed on 2005 SCM R 152 titled Anwar Ahmad v. Mst. Nafis Bano through Legal heirs, 1987 SCM R 1177 titled Sultan and others v. The State, 1995 SCM R 1237. Titled Mst. Khurshid Pegum and 6 others v. Chirag Muhammad, 2001- CLC 1796 titled Mukhtar Ahmad through Legal heirs v. Muhammad Younus and 4 others and 2009 PCr.LJ 619 titled Nasreen Bibi v.
The State. Another aspect that needs consideration is that the alleged narcotics substance was lying on the bus stop. It was recovered therefrom. It cannot be said to be in the possession of the appellant and it cannot be believed that a man of ordinary prudence sitting in a bus packed to its capacity would claim the ownership of the narcotics substance inviting the life imprisonment.
7. For what has been discussed above, we are of the opinion that the prosecution has failed to prove Its case against the accused beyond the shadow of doubt. In such circumstances the impugned judgment ordering the conviction and passing the sentence against the appellant is set aside. The appellant is acquitted of the charge. He shall immediately be set at liberty if not required in any other case.