MIRZA VIQAS RAUF, J.---The appellant Muhammad Fazal, through instant appeal, assails the vires of judgment dated 02nd of July, 2013, passed by the learned Judge Special Court, Control of Narcotic Substances, Rawalpindi, whereby he was convicted under section 9(c) of The Control of Narcotic Substances Act, 1997 in case FIR No,31 dated 25th of August, 2011, registered at Police Station Anti-Narcotic Force. Regional Directorate, Rawalpindi and sentenced to undergo rigorous imprisonment for 11 years along with fine of Rs,1,30,000/- and in default thereof, he was to further undergo 11 months' simple imprisonment. Benefit of section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to him.
2. Precisely the facts necessary, as divulged in the statement of complainant Muhammad Zubair, Inspector (PW-5) are as under:- "On 25.08.2011, I was posted as S.I at Police Station ANF-RD, Rawalpindi. On that day, I along with, Basit, Waqas Ahmed, Sajid Ali, Azhar Ali and Ashfaq Constables were present in International Departure Hall of BBI Airport, Islamabad, busy in the checking of the passengers of Flight No,PK-791, bound for Birmingham (the U.K). At about 11:00 am, I received secret information that a passenger namely, Muhammad Faazil had passed through the International Departure Hall along-with huge quantity of narcotic in his suit-case. On this information, I, took along Sajid Ali Constable and Waqas Ahmed Constable and reached the PIA Counter wherefrom I was told that the said passenger had got booked his luggage and boarding pass had been issued to him regarding seat No,25-C. Thereafter we proceeded to the aircraft, where I contacted the concerned staff of the PIA, who led us to seat No,25-C. The person occupying the said seat appeared to be the same as disclosed by the informer. He was the accused today present in Court in custody. He was got alighted from the aircraft along-with a small brief case, which he was carrying in his hand, outside the aircraft, I checked his passport. His brief case was also checked which contained boarding card limited release tag, air ticket and garments. He was then brought to the FIA Counter, where off load stamp was got affixed on his passport. At the time, the accused was alighted from the aircraft, he had made disclosure that the heroin was lying in his black suit-case which he already got booked with the airline. From the FIA Counter we came to the PIA Counter and told the PIA Staff that the suit-case got booked by the accused contained heroin, accordingly the same was off loaded. We then came back to ANF Counter along with the said black suit-case. On reaching there, the accused brought out the key of the lock of the suit-case from his pocket and opened the lock of the suit-case. The suit-case when opened, ostensibly it contained garments. However, its lower layer was found suspicious and double which was opened with the help of instruments and recovered therefrom brown heroin contained in polythene envelope, wrapped in khaki insulation tape. When weighed, it came to 6.200 kilograms. I separated ten grams heroin for sample and made the same into parcel by the remaining heroin was also made into another parcel. Both the parcel were stamp with `MZ'. I then secured heroin P-.1, suitcase of black colour P-2, used garments P-3 boarding Card P-4, Passport P-5, limited release tag P-6/1-2, small brief case P-7, lock P-8 and key P-9, through recovery memo Ex.PB, attested by Waqas Ahmed and Sajid Ali constable PW. I then conducted personal search of the accused and recovered PKR Rs,1090/- P-10, cell phone P-11, his CNIC P-12, air ticket P-13, his driving license P-14 and wallet P-15, which he secured vide recovery memo Ex.PC, attested by the above named PWs.
I then drafted complaint Ex.PA and handed over the same to Azhar Ali Constable for onward transmission to the Police Station for registration of case."
On the basis of above stated facts, case FIR No,31 dated 25th of August, 2011 (Exhibit-PA/1) was registered against the appellant at Police Station Anti-Narcotic Force, Regional Directorate, District Rawalpindi.
3. After formal investigation, report under section 173 of The Code of Criminal Procedure, 1898 was submitted before the learned trial Court and the accused/appellant was sent to face the trial. The learned trial Court, seized with the matter, framed the charge against the accused on 27th of October, 2011 under section 9(c) of The Control of Narcotic Substances Act, 1997, to which he pleaded not guilty and claimed trial.
4. In order to prove the alleged recovery, the prosecution examined as many as five witnesses.
Arshad Mahmood Head Constable, being the scribe of FIR (Exhibit-PA/1) appeared as PW-1. Naveed Ahmad Tunio A.S.I, who was officiating as Moharrar at the relevant time was produced as PW-2. He deposed about the keeping of sealed parcel of heroin and its further transmission to the office of Chemical Examiner. Muhammad Naveed Constable was examined as PW-3. He took the sealed parcel to the office of Chemical Examiner, Rawalpindi on 27.08.2011. Waqas Ahmed Constable, one of the recovery witness was produced as PW-4. He narrated the events which led to the recovery of heroin weighing 6.200 Kg from the appellant. Muhammad Zubair Inspector, being the complainant as well as Investigating Officer appeared as PW-5. The learned Special Public Prosecutor gave up PW Sajid Ali Constable, being unnecessary. The report of Chemical Examiner was tendered in evidence as Exhibit-PE and thereafter the prosecution evidence was closed.
5. After completion of prosecution evidence, the statement of appellant/accused was recorded under section 342 of The Code of Criminal Procedure, 1898 wherein he pleaded his innocence and submitted that he has been falsely involved in this case. He added that nothing has been recovered from him and recovery is fake and fictitious. He produced Shahid Raza, Deputy Assistant Director ASF, BBI Airport, Islamabad as DW-1 in his defense, however, he did not opt to appear in the witness box in terms of section 340(2) of The Code of Criminal Procedure, 1898. After recording the statement of the accused/appellant, learned Special Public Prosecutor made a request to summon Chemical Examiner as CW which was allowed and statement of Dr. Masood Safdar, Chemical Examiner was recorded as CW-1.
6. After completion of evidence and hearing both the sides, the learned trial Court, by way of judgment dated 02.07.2013 convicted the appellant under section 9(c) of The Control of Narcotic Substances Act, 1997 and sentenced him as described in the opening paragraph of the instant judgment.
7. Learned counsel representing the appellant submitted that the prosecution has failed to lead any cogent evidence against the. Appellant. Learned counsel contended that there are serious discrepancies in the evidence of prosecution which are sufficient to destroy the whole prosecution case. In this regard, he referred the statement of PW-4 and PW-5. Learned counsel, however, mainly laid emphasis on the report of Chemical Examiner, which was tendered in evidence as Exhibit-PE. He maintained that the prosecution has badly failed to prove said report as well as nature of contraband allegedly recovered from the appellant. In the last, learned counsel added that case of the prosecution is full of doubts and a single circumstance, creating any reasonable doubt is sufficient for the acquittal of the accused.
8. Conversely, learned Special Prosecutor representing the State defended the judgment of the learned trial Court and submitted that the prosecution has led sufficient evidence to prove the recovery against the appellant. He further submitted that all the witnesses corroborated each other on material points and their evidence is convincing and confidence inspiring. Learned Prosecutor also contended that the prosecution has successfully proved its case against the appellant and his conviction was rightly recorded by the learned trial Court.
9. We have heard the learned counsel for the appellant as well as learned Special Prosecutor and perused the record.
10. It is the case of the prosecution that the appellant was apprehended on the basis of spy information by the Anti-Narcotic Force officials from International Departure Hall, Benazir Bhutto International Airport, Islamabad when he came there for boarding flight No,Pk-971 bound for UK and upon search of his suit-case, heroin weighing 6.200 Kg was recovered which was secretly packed in bottom of said suit case and wrapped in Khakhi salutation tape and white polythene bags. The prosecution, in order to establish the guilt of the appellant examined Waqas Ahmed Constable as PW-4 and Muhammad Zubair Inspector as PW-5. The statements of these witnesses are of significance importance. While going through the statements of Waqas Ahmed Constable (PW-4) and Muhammad Zubair Inspector (PW-5), we have noticed that there are glaring discrepancies in the statements of both these witnesses. The appellant has produced Shahid Raza as DW-1 in his defense. He is the Deputy Assistant Director ASF, BBI Airport, Islamabad, who also supported the version of the appellant. The said witness is a responsible officer of the Law Enforcement Agency, which is directly responsible for providing the security at the Airports. His statement provides some supports to the defense version and cannot be ignored. The prosecution has failed to provide any link of the said witness with the appellant.
11. Leaving aside all this when we advert to the main contention of the learned counsel for the appellant with regard to the report of Chemical Examiner (Exhibit-PE), we find that the said report was prepared by a Bio Chemist and the same was countersigned by Dr. Masood Safdar, Chemical Examiner, who later on was examined as CW-1. The said witness while appearing as such, deposed in his examination-in-chief that report (Exhibit-PE) is his report which bears his seal and signatures, however, when he was cross-examined by the learned defense counsel, he stated as under: "The parcel of sample is then forwarded to the Bio Chemist for analysis. The Bio Chemist at the time of analysis, weighs the contents of the sample, mentions the quantity used for analysis and the quantity that remains, in a register maintained by such Bio Chemist. The said register is called Letter Dispatch Register. According to the entries of the said register, the sample received in this case was six grams of heroin. At the time of analysis, I also remain present with the Bio Chemist."
It is evident from the above that analysis of the sample was actually conducted by the Bio Chemist and not by the Chemical Examiner himself. The Bio Chemist cannot be termed as Government Analyst in terms of section 35 of The Control of Narcotic Substances Act, 1997.
12. The report (Exhibit-PE) though bears the signatures of the Chemical Examiner but the same cannot be equated or termed as a report prepared by the Government Analyst. Though report of the Government Analyst is per se admissible in evidence in terms of section 36 of The Control of Narcotic Substances Act, 1997 but the same shall become admissible only after fulfillment of the pre-requisites laid down in the said section. Section 36 of The Control of Narcotic Substances Act, 1997 is reproduced below for convenience and ready reference:-
36. Reports of Government Analysts.---The Government Analyst to whom a sample of any narcotic drugs, psychotropic substance or controlled substance has been submitted for test and analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority, as may be prescribed.
(2) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall unless rebutted, be conclusive."
It is manifest from the above that it is the Government Analyst who himself has to conduct the test and analysis of the narcotic drug transmitted to him for the said purpose. The prosecution has failed to establish the substantial compliance of above referred provision of law which renders the report inadmissible. Guidance in this respect can be sought from the judgment of the Hon'ble Supreme Court of Pakistan in the case of Ikramullah and others v. The State (2015 SCMR 1002).
Reference in this respect can also be made to the case of "The State through Collector of Customs (Preventive) Government of Pakistan v. Sallad Muhammad Jaffer and 2 others" (2007 PCr.LJ 1984).
13. There is yet another aspect that as per prosecution case, 10 gram heroin was separated for the purpose of analysis which was sent to the office of Chemical Examiner on 27.08.2011 through Muhammad Naveed Constable (PW-3). The report of Chemical Examiner (Exhibit-PE) did not support the prosecution case on this aspect. As per report, the sealed packet received in the office of Chemical Examiner contained heroin weighing 06 Ounce. Dr. Masood Safdar, Chemical Examiner, while appearing as CW-1 though endeavored to cover this lapse by stating that the ounces mentioned in the report Exhibit-PE is due to clerical mistake but this portion of his statement is not reconcilable with his own statement. In this context, he deposed as under:- "The reports wherein ounces are mentioned are regarding the liquid samples and not the solid substances. Heroin being in powder form is considered as solid substance and the report submitted regarding the analysis is always in grams not in ounces."
His statement with regard to the receipt of quantity of sample in ounces is also discrepant. On one hand, he deposed that as per record, sample of 10 grams of heroin was received but due to clerical mistake Q6 ounce was typed. However, on Court question, he stated that as per Letter Dispatch Register, in the relevant entry 06 gram of heroin has been mentioned. The above discrepancies are not trivial as stringent punishments are provided under The Control of Narcotic of Substances Act, 1997 when the offence is proved against the accused. It is imperative upon the prosecution to lead overwhelming evidence in all prospects for proving the culpability and guilt of the accused. The prosecution has badly failed to establish that the sample received in the office of Chemical Examiner is actually the sample parcel relating to the case in hand.
14. We have also observed that while recording the statement of appellant under section 342 of The Code of Criminal Procedure, 1898, the appellant was even not confronted with the material, which was brought in the evidence of CW-1 in order to get his explanation. It is well settled principle of law by now that no incriminating material can be used against the accused unless it is put to him during his statement under section 342 of The Code of Criminal Procedure, 1898. The purpose behind this principle is that the accused must be aware of all the material evidence which is to be used against him. When he was not confronted with the material which was brought in the evidence of CW-1, he was not in a position to refute the same properly. This lapse on the part of prosecution is fatal and it goes to the root of the prosecution case. The recording of statement under section 342 of The Code of Criminal Procedure, 1898 is not a mere formality rather its primary object is to afford the accused an opportunity of explaining the circumstances which are tending to incriminate and likely to influence the mind of the Judge in arriving at a conclusion adverse to him. Guidance in this respect can be sought from the case of Asif Ali Zardari and another v. The State (PLD 2001 Supreme Court 568), wherein the Hon'ble Supreme Court of Pakistan has held as under:- "37. The mode and manner in which the statement of Ms. Benazir Bhutto under section 342, Cr.P.C.
Was recorded leaves no doubt in our mind that the provision of section 342, Cr.P.C. Was abused with a view to reach a hasty conclusion. The underlying object of section 342, Cr.P.C. Is to enable an accused to explain the incriminating circumstances in the prosecution evidence appearing against him. In our view, this is the most valuable right being sacrosanct principle of natural justice.
No doubt, the attendance of Ms. Benazir Bhutto appellant had been exempted but as she was available in Pakistan, it was incumbent upon the learned Judges to have summoned her for recording her statement. The features of the prosecution case also necessitated her examination in person. To our utter dismay the learned Judges opted not to do so and considering the compliance of the provisions of law sufficient by recording the statement of her counsel who according to the learned counsel for the appellants was not authorised to speak on her behalf.
According to Ms. Benazir Bhutto appellant, when she came to know that her statement under section 342, Cr.P.C. Had been got recorded through her counsel she at once made an application to supplement her statement under section 342, Cr.P.C. And made a supplementary statement in writing containing answers to all the questions put to her counsel and requested the Court to treat the statement in writing as her statement under section 342, Cr.P.C. But queerly enough her said statement was ignored. The circumstance is also a link in the bias."
Reference in this respect can also be made to the case of Munir Ahmed alias Munni v. The State (2001 SCMR 56) and Ashraf and 4 others v. The State (2004 PCr.LJ 42).
15. The above narrated circumstances are sufficient to create a serious doubt with regard to the veracity of prosecution case. In the light of serious discrepancies observed hereinabove, we are inclined to hold that the prosecution has badly failed to discharge its onus. The joint effect of above lapses leads us to irresistible conclusion that recovery proceedings conducted by the Investigating Officer are not free from doubt. The case of the prosecution is fraught with doubts and for earning the relief of acquittal the accused is not obliged to establish number of circumstances creating doubts but even a single circumstance, creating a reasonable doubt in the prudent mind is sufficient to extend the benefit of doubt to the accused. Guidance in this respect can be sought from Muhammad Zaman v. The State and others (2014 SCMR 749) and Muhammad Ashraf and others versus The State and others (PLD 2015 Lahore 1).
16. The nutshell of above discussion is that we are inclined to allow the instant appeal by setting aside the judgment dated 2nd of July, 2013 passed by the learned trial Court and after holding the appellant not guilty of the offence acquit him from case FIR No,31 dated 25.08.2011, offence under section 9(c) of The Control of Narcotic Substances Act, 1997 registered at Police Station Anti- Narcotic Force, Regional Directorate, District Rawalpindi. The appellant shall be released forthwith, if not required in any other case.