Asjad Javaid Ghural, J. Through this appeal under Section 48 of The Control of Narcotic Substances Act 1997, appellant Abdul Ghaf far has challenged the vires of judgment dated 05.03.2016 passed by the learned Additional Sessions Judge-I, Rajanpur in case FIR No.192 dated 19.06.2009 in respect of an offence under Section 9-C of The Control of Narcotic Substances Act, 1997 registered at Police Station Saddar Rajanpur whereby he was convicted under Section 9-C of the Act ibid and was sentenced as under:- "Rigorous imprisonment five years and six months and fine of Rs.25000/-. In case of non-payment of fine, to further undergo simple imprisonment of five months. The appellant was held entitled to the benefit of Section 382-B Cr .P.C.
2. Brief facts of the case as narrated in the FIR (Ex.PB/1) registered on the complaint (Ex.PB) of Tariq Ali Walika, SI (PW-6) are that on 19.06.2009 at about 4/5:00 p.m., he along with other police contingents, was present in front of Yasrab Cotton Factory . On receiving spy information, he along with other police contingents conducted raid at the metaled road in the area of Kotla Naseer and apprehended the appellant having red-coloured plastic sack in his right hand. On inspection, the said plastic sack was found containing charas weighing 2010-grams. Out of the recovered charas, 100-grams was separated and sealed for analyses.
3. After completion of investigation, the challan was submitted before the trial Court. The trial Court, after completion of codal formalities, framed the charge against the appellant under Section 9-C of The Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial.
4. The prosecution produced five witnesses to prove guilt of the appellant and also tendered report of the Chemical Examiner (Ex.PD) and gave up Abdul Raheem, ASI being unnecessary. After closure of prosecution evidence, the appellant had been examined under Section 342 Cr.P.C., he denied the charges levelled against him and professed his innocence wherein he neither opted to appear under Section 340(2) Cr.P.C. nor produced any witness in his defence to disprove the allegations levelled against him.
5. The trial Court after hearing learned counsel for the appellant and the learned Law Officer, found the appellant guilty of the charge and sentenced him to rigorous imprisonment for life and to pay fine of Rs.50,000/- and the benefit of Section 382-B Cr.P.C. was extended to him vide judgment dated 28.05.2010. The appellant assailed the said judgment before this Court through Criminal Appeal No.746 of 2010, which was accepted vide judgment dated 01.12.2015 and the matter was remand ed to the trial Court with the direction to provide an opportunity to the appellant to be defended through his counsel in accordance with law .
6. On receiving case file, the trial Court proceeded to re-summon all the prosecution witnesses, who were cross- examined by the defence except Tariq Ali Waleeka, SI (PW-6), who had passed away and Asghar Ali No.406/HC (PW-2), whose attendance was not procured.
7. After closure of prosecution evidence, the appellant was examined under Section 342 Cr.P.C. in which all the evidence produced by the prosecution was put to him to which he denied and professed his innocence. The appellant neither opted to appear under Section 340(2) Cr.P.C. nor produced evidence in his defence and the trial Court, after hearing the parties, sentenced the appellant supra through the impugned judgment, hence this appeal.
8. Learned counsel for the appellant has contended that the examination-in-chief of Tariq Ali Waleeka, SI (PW-5) recorded during first round of trial, cannot be read against the appellant being uncross-examined due to his death; that the prosecution failed to produce any other witness to testify the documents i.e. complaint Ex.PB and recovery memo Ex.PA endorsed by the said important prosecution witness; that the prosecut ion has withheld other important witness of the recovery memo Ex.PA namely Abdul Raheem ASI, therefore, sole deposition of Ghulam Hashim, ASI (PW-1) without corroboration, is not sufficient enough to maintain conviction of the appellant, therefore, the impugned judgment is not sustainable.
9. Learned DPG appearing for the State has vehemently opposed the contentions raised by learned counsel for the appellant with the submission that examination-in-chief of PW-5 recorded during first round of trial, was sufficient to testify the contents of complaint as well as the recovery memo and that the trial Court was justified to pass well- reasoned judgment, which is liable to be sustained.
10. We have heard learned counsel for the appellant as well as learned DPG representing the State and have perused the record.
11. The ocular account in this case was furnished by the complainant Tariq Ali Waleeka, SI (PW-5) and Muhammad Hashim, ASI (PW-1) during first round of trial. After remand of the case by this Court, the trial Court proceeded to re-call the prosecution witnesses and recorded cross-examination of Hashim Ali, ASI (PW-1), Ghulam Mustafa No.126/C (PW-3) and Kashif Mehmood (PW-4). The prosecution gave up Abdul Reheem, ASI being unnecessary. The perusal of the proceedings of trial Court demonstrates that no coercive measure was taken to re-call Asghar Ali No.406/HC/Moharrir (PW-2) for cross-examination and even the defence also did not submit any application to cross- examine the said witness. Depite grant of an opportunity to the appellant to cross-examine the said witness, the object of remanding the appeal had not been served as no coercive measures were adopted to procure the attendance of the aforesaid witness for cross-examination, which negates the concept of fair trial as contemplated under Article 10-A of the Contitution of Islamic Republic of Pakistan, 1973. It would not be appropriate to remand the case in hand second time as the appellant had already suffered the agony of trial for last more than seven years. The appellant cannot be punished for the mistake committed by the prosecution. It was duty of the Court to procure attendance of the said witness and then provide a fair opportunity to the appellant to cross-examine him, therefore, failure of the Court to procure the attendance of said witness was a denial of due process of law. The appellant on this score only deserves acquittal of the charge instead of remanding the case second time. We seek guidance in this respect from the case titled "MUHAMMAD HUSSAIN alias JULFIKAR ALI versus STATE (GOVT . OF NCT), DELHI (2012 SCMR 1610 [Supreme Court of India])" .
12. We have noticed that the examination-in-chief of Tariq Ali Waleeka, SI (PW-5) was recorded during first round of trial, who had expired at the time of second round of trial. The only evidence available with the prosecution to testify recovery memo Ex.PA is the deposition of Muhammad Hashim, ASI (PW-1), who had though testified the same yet it does not find un-impeachable corroboration of any other prosecution witness, which was essential to prove the factum of recovery from the appellant. It goes unrebutted that Tariq Ali Waleeka, SI (PW-5) had expired much prior to the commencement of second round of trial. The prosecution was having another important witness to testify the recovery memo namely Abdul Raheem, ASI (since given up as unnecessary) being member of the raiding party but the said important witness was withheld by the prosecution. We are constrained to presume under Article 129(g) of Qanun-e-Shahadat Order, 1984 that had the said witness been produced by the prosecution in the witness box, he would have not supported the prosecution version qua the factum of recovery from the possession of the appellant.
Sole deposition of Muhammad Hashim, ASI (PW-1) qua the recovery of contraband substance from the appellant requires corroboration but the same lacks in this case, therefore, his credibility without any corroboration is not safe to be believed.
13. Furthermore, on perusal of record, we have noted that the sample of recovered contraband substance was sent to the Office of Chemical Examiner, Punjab, Multan through Ghulam Mustafa No.126/C (PW-3), who deposed that he received a sealed parcel containing charas on 25.06.2009, which he deposited in the said office intact on 26.06.2009.
He had nowhere mentioned that the sealed parcel was earlier submitted in the office of Excise & Taxation Office and after getting letter from the said office, the parcel was deposited in the office of Chemical Examiner but report of the Chemical Examiner Ex.PD shows the name of forwarding officer as 'ETO', who had nothing to do with the same. He was neither member of the raiding party nor a person to whom the parcel was delivered for onward transmission to the office of Chemical Examiner in the intervening period when the parcel was received from the Moharrir and deposited in the office of Chemical Examiner. The name of 'ETO' as a forwarding officer is a question mark with regard to the safe custody of the recovered contraband substance. We could not find anything from the record with regard to the role of 'ETO' being a forwarding officer. Even if it is presumed that the parcel was first submitted to the office of 'ETO' for getting covering letter from the said office, the possibility of temp ering with the sample cannot be ruled out. Safe custody of the narcotics was necessary ingredient to prove the charge of narcotics. Even a positive report of Chemical Examiner does not support the prosecution version as the parcel had not been directly received from the representative of the police to the office of Chemical Examiner and intrusion of 'ETO' would cast serious doubt with regard to the safe custody of the sample contraband substance.
14. It is duty of the prosecution to prove that the sample of recovered contraband substance was sent to the office of Chemical Examiner through a representative of the concerned police station. Unless safe custody of the parcels is proved, the submission of representativ e parcel in the office of Chemical Examiner cannot be proved beyond any shadow of doubt and the same cannot be made basis for conviction. The fact of safe custody of the narcotics coupled with the sole deposition of Muhammad Hashim, ASI (PW-1) without any corroboration, was not sufficient to prove the charge against the appellant. Non-production of an important witness namely Abdul Raheem, ASI to prove the recovery of contraband substan ce from the appellant and indirect submission of the sample in the office of Chemical Examiner including the role of an alien to the proceedings i.e. 'ETO', cast serious doubt in the veracity of prosecution evidence. It is well settled by now that even a single doubt is sufficient to extend benefit in favour of an accused but the case in hand is replete with doubts.
15. For what has been discussed above, the appeal in hand is allowed, impugned judgment dated 05.03.2016 is set aside and appellant Abdul Ghaf far is acquitted of the charge. He is directed to be released from jail forthwith, if not required to be detained in any other criminal case.