SHAHAB SARKI, J- Appellant Rustam Ali has preferred this appeal against the Judgment dated 12- 11-2013 passed by the Special Judge (CNS), Ghotki in Special Case No, 21 of 2008, arising out of Crime No,4/2008 of Police Station ANF, Sukkur registered under section 9(c) of CNS Act, 1997, whereby he has been convicted under section 9(c) and sentenced to suffer R.I for 10 years and fine of Rs,300,000 and in default of fine to suffer S.I. For 6 months more.
2. The case of the prosecution in a nutshell, as narrated in the FIR, is that the complainant SHO/SI Syed Abid Raza Shah of Police Station ANF, Sukkur along with his team, in 3 Government vehicles, were patrolling their area on 27-8-2008 and received spy information that the notorious narcotics dealers namely Muhammad Azeem and Rahib Ali are present in the village of Bharchoondi Shareef in the Otaq of Muhammad Azeem. Thereafter the complainant and his team proceeded to the said place and one person (present appellant) was identified and he allegedly threw the bag in his possession and escaped while two other persons who were available there were arrested and from their possession various narcotics were recovered. It is alleged that the bag thrown by the present appellant contained 5 Kilograms of Charas. The 10 Grams sample from each slab was sealed in a Khaki envelope and marked Serial Nos.11 to 15. It is further alleged that from the bag of present appellant 33 Grams of Opium was also recovered, which was put in a white plastic shopper and sealed in a Khaki envelope.
3. The present appellant was declared as absconder and the case of the co-accused proceeded before the Special Judge CNS Ghotki and both the co-accused were sentenced to undergo R.I. For life and were also imposed fine of Rs,200,000 and in case of default in payment of fine to suffer S.I.
For one year more. Both the accused preferred an appeal against their conviction and vide judgment dated 16-5-2013, in Criminal Appeal No,D-50 of 2010 by the Bench of this Court, the sentence of co-accused Rahib Ali was reduced to already undergone while Muhammad Azeem had expired during hearing of appeal.
4. The present appellant was subsequently apprehended and the case proceeded against him and by virtue of the impugned judgment, he has been convicted as above.
5. During the trial prosecution examined Abid Raza Shah Inspector ANF as PW 1 who reiterated the facts as stated in the FIR and produced the Roznamcha entries, memos. Of arrest and recovery, FIR as well as Chemical Examiner's report. The prosecution then examined PW 2 Ayaz Ahmed who was a constable of Police Station ANF, Sukkur and he also reiterated the contents of the FIR and produced the case property in the Court. He however, did not produce nor exhibited any other item.
Thereafter the side of the prosecution was closed and the statement of accused/appellant under section 342, Cr.P.C. Was recorded wherein he denied all the charges and said that he has no concern with any alleged contraband or narcotic.
6. The learned counsel for the appellant has mainly argued that a false case has been registered against the appellant and no recovery has been effected from him. He has further submitted that the appellant was not available at the alleged place of occurrence and since the trial Court had already convicted the co-accused who were allegedly available at the spot, hence the learned trial Court has been swa yed by the previous conviction of co-accused. He has further argued that no independent person has been examined by the prosecution and his name has been included only due to enmity with the local political personalities. He has further submitted that the Chemical Examiner's report was not produced in the instant case and therefore it cannot be determined whether the alleged substance was actually a narcotic substance or not. He has finally submitted that on the basis of his arguments, the prosecution has not been able to prove its case against the appellant and therefore he has prayed for his acquittal. In support of such contentions, he has relied upon Gul v State (PLD 1977 Kar. 1019), Zafar lqbal v. The State and others (2013 YLR 598), Muhammad Siddique alias Bheria v The State (2005 PCr.LJ 726), Zahoorul Islam and 2 others v. The State (1995 PCr.LJ 484) and Shafiullah v. The State (2007 YLR 3087).
7. The learned SPP for ANF on the other hand has supported the impugned judgment and has stated that the co-accused in the same crime have already been convicted and the case of the present appellant is on the same footing and hence the impugned judgment is proper. On the point of absence of Chemical Examiner's report he has submitted that the report was already produced at the time of the trial of the co-accused, when the present appellant was an absconder, and since the appellant was tried for the same offence, therefore non-production of the Chemical Examiner's report in the instant case is not a material irregularity.
8. We have heard the arguments of the learned counsel, perused the record and gone through the cited case law.
9. The main issue in the instant case is the effect of non-production of the Chemical Examiner's report and its effect on the prosecution case. The relevant provisions of law is section 510, Cr.P.C.
Which relates to the report submitted by a Chemical Examiner. The said section was incorporated under the Law Reforms Ordinance, 1972 and it entails that the report of a Chemical Examiner is admissible without calling the author of the report as witness. It however provides, that the Court may if it considers necessary in the interest of justice, summon and examine the person who prepared the report. The wisdom behind this section was to attach some sanctity to the Chemical Examiner's report and not to call him in each and every case unless it was necessitated in the interest of justice. In the present case, no such report either in its original form or a copy thereof has been produced. We have noted that though PW 1 has deposed in his examination-in-chief that he is exhibiting certain documents including the chemical examiner's report but the same is not available either in the paper book or R&Ps. In such circumstances the trial Court could have examined the Chemical Examiner who could have brought his own record, if any, but the trial Court apparently did not consider it necessary.
10. Since it is an admitted position that Chemical Examiner's report is not available therefore we have to examine the consequent legal position. In the case of Gul v. The State (PLD 1977 Kar. 1019) it was held by a Single Bench of this Court in respect of a chemical examiner's report that: "Since the original report signed by the chemical examiner has not been produced by prosecution, the report is clearly inadmissible under Section 510, Cr.P.C".
In the case of Muhammad Siddique alias Bheria v The State (2005 PCr.LJ 726) a Division Bench of Lahore High Court held as follows:-- "In order to prove the guilt of the appellant under section 9(c), C.N.S.A., it was the bounden duty of the prosecution to have proved in evidence that the substance recovered from him was in fact Charas. In this context, the prosecution had relied upon the report of Chemical Examiner. Perusal of the record discloses that instead of original, only a photocopy of the said report has been produced by the prosecution, which in our view does not in any manner cater for the requirement of section 510, Cr.P.C. In such eventuality, no steps appear to have been taken to prove the report of the Chemical Examiner by the production of the Chemical Examiner as a witness which is conspicuous by its absence. In the circumstances, copy of the Chemical Examiner's report cannot furnish the basis for conviction in the case."
In another case of Muhammad Bux v The State (2011 PCr.LJ 1466) where duplicate copy of the Chemical Examiner's report was placed on record the same was held to be contrary to the mandatory provisions of section 510, Cr.P.C. In a number of other cases of the superior. Courts also it has been repeatedly held that a duplicate copy of the report is not admissible under section 510, Cr.P C.
11. In view of the above discussion we have come to the irresistible conclusion that since no Chemical Examiner's report has been produced in the instant case, the prosecution has been unable to establish its case under S.9(c) of the CNS Act. The entire prosecution case under the CNS Laws hinges on the fact whether the recovered substance is a narcotic or not, and this can be conclusively established only by way of submitting the recovered substance to a scientific process, which is to be undertaken by a certified Chemical Examiner. The argument of learned SPP that since the co-accused in the same crime have already been convicted and therefore the present appellant's conviction should be maintained being proper, is not tenable as in the case of co- accused an original Chemical Examiner's report was duly produced, and since it was admissible in evidence, fulfilling the requirement of section 510, Cr.P.C., therefore it was given its due weight. In the instant case we cannot conclude that the allegedly recovered substance from the appellant was actually a narcotic as no conclusive report is available on the record. A mere suspicion, however strong cannot take the place of conclusive proof. It is a settled proposition of law to extend benefit of doubt even a single instance and circumstance is sufficient. Reliance is placed upon the case of Tariq Pervez v The State (1995 SCM R 1345).
12. We therefore are left with no other alternate but to acquit the appellant and set aside the impugned judgment dated 12-11-2013 passed by the Special Judge (CNS), Ghotki. The appellant is in Jail, he shall be released forthwith if he is not required in any other criminal case. The instant appeal stands allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.