CH. ABDUL AZIZ, J.---Muhammad Yaqoob alias Kuba (appellant) involved in case FIR No,567/2015 dated 20.12.2015 registered under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as CNSA, 1997; at Police Station Qabula Sharif, Arifwala. The learned trial court seized with the matter in terms of judgment dated 08.12.2017 proceeded to convict and sentence the appellant in the following terms:- Under section 9(c) of CNSA, 1997 to undergo rigorous imprisonment for 2 years with the direction to pay Rs, 20,-000/-as fine and default whereof to further undergo simple imprisonment for five months.
The benefit of section 382-B of Cr.P.C. was also extended in favour of the appellant.
Challenging his conviction and sentence, the appellant has filed the instant appeal.
2. Succinctly stated the case of the prosecution as unveiled in FIR (Ex.PAil) is to the effect that on 20.12.2015 Ahsan Haider ASI along with Mazhar Hussain 334/C, Muhammad Hussain 922/C, Mehmood-ul-Hassan 291/C and Saeed Ahmad PQR was present at Stop Chak No,89/EB Bahuwala on official vehicle; that in the meantime Muhammad Yaqoob (appellant) came from Chak No, 89/EB Bahuwala and being suspect was apprehended; that from his personal search Charas weighing 1075 grams (P.1) as well as Rs,2300/- (sale proceeds) was recovered; that out of the said Charas 10 grams were separated and made into a sealed parcel for chemical analysis; that both the parcels were secured through recovery memo. Thereafter, Ahsan Haider ASI drafted a complaint (Ex.PA) and forwarded it to the Police Station through Saeed Ahmed PQR for registration of formal FIR.
3. The written complaint (Exh.PA) was transcribed into formal FIR (Exh.PA/1) which was chalked out by Zahid Ghafoor 706/C (PW.1). Subsequent to the registration of FIR, investigation was entrusted to Fakhar-ud-Din SI (PW.3), who inspected the place of occurrence, prepared rough site plan of the place of recovery (Ex. PC) and recorded the statements of the prosecution witnesses under section 161, Cr.P.C. After having found Muhammad Yaqoob alias Kuba (appellant) guilty, Fakhar-ud-Din SI (PW.3) prepared report under section 173, Cr.P.C., by placing his name in Column No,3 and sent the same to the court of competent jurisdiction.
4. The learned trial court formally indicted the appellant on 03.02.2016, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced, in all, four witnesses Zahid Ghafoor 706/HC (PW-1). chalked out the formal FIR as well as received two parcels i,e, one of case property and other of sample Charas. He handed over these parcels to Ahsan Haider ASI for its onward transmission to the office of PFSA, Lahore. Ahsan Haider ASI/complainant (PW.2) and Mazhar Hussain 334/C (PW.4) are the witnesses of recovery and Fakhar-ud-Din SI (PW.3) is the investigating officer of case.
5. Learned trial court also examined the appellant under section 342, Cr.P.C. who while replying to a question "why this case against you and why the PWs deposed against you" replied as under:- "I have been involved in this case by Ahsan Haider ASI with mala fide intention just to show his efficiency to his High Ups police officials and no independent witness has been cited in the FIR and all the witnesses are police officials. Therefore, they have deposed against me falsely."
The appellant neither opted to appear under section 340(2), Cr.P.C. nor produced any evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced as aforementioned, hence the instant appeal.
6. It is contended by learned counsel that appellant is innocent in the instant case and was falsely implicated; that though prosecution miserably failed to prove its case yet the appellant was handed down a guilty verdict; that there are material contradictions arising out of prosecution case but were very conveniently ignored by the learned trial court; that though original report of PFSA was not placed on record and rather its attested copy was tendered in evidence but even then the learned trial court wrongly treated it as admissible; that though a plain view of the prosecution evidence gives rise to a reasonable doubt, however, its benefit was withheld from the appellant. With these submissions, it is urged that conviction awarded to the appellant is liable to be set aside.
7. Learned Deputy Prosecutor General strongly controverted the arguments advanced or behalf of appellant and submitted that the witnesses of recovery. though were police officials but had no enmity to falsely implicate the appellant in the case; that during trial guilt of appellant was well established from the confidence inspiring evidence of recovery witnesses, that the recovered substance was proved to be Charas through the report of PFSA; that the appellant has committed a heinous offence, hence deserves no leniency and that since the prosecution has proved its beyond any shadow of doubt, hence; the conviction awarded to the appellant needs no interference from this Court.
8. Arguments heard. Record perused.
9. A review of record reveals that the on 20.12.2015 at about 9:45 a.m., Muhammad Yaqoob (appellant) was intercepted by police contingent headed by Ahsan Haider ASI (PW.) and was found in possession of 1075 grams of Charas (P.1) recovered from a shopper in .his hand. Likewise, an amount of Rs,2300/- was also secured from the appellant which was canvassed by the prosecution as sale proceeds of narcotics. Before proceeding further, we deem it appropriate to observe here that in order to secure conviction in cases arising out of CNSA, 1997, the prosecution is generally obliged to prove following constituents:-
(i) Recovery of narcotics from the accused;
(ii) Safe custody of recovered substance;
(iii) Safe transmission of recovered substance to Government Analyst/Chemical Examiner and
(iv) The proof that the recovered substance is narcotics/contraband substance within the purview at CNSA, 1997.
10. In the above backdrop, we have meticulously examined the record of case from which it divulges that in order to prove the recovery of Charas from appellant, Ahsan Haider ASI (PW.2) and Mazhar Hussain 334/CI (PW.4) appeared in the dock. At the very outset, it is noticed that Ahsan Haider (PW.2) deposed that the colour of recovered Charas was greenish brown comprising upon two big and twelve small pieces. However, the report of PFSA Exh.PD) reveals that the colour of Charas forwarded for analysis was blackish brown, with no reference to its substance or shape. It is also borne out from record that neither in complaint (Exh.PA) nor in statement recorded before court, Ahsan Haider ASI mentioned the time when Muhammad Yagoob (appellant) was nabbed by. him. Even Mazhar Hussain 334/C (PW.4) was no exception and omitted to mention the time of stated recovery.
In order to ascertain the placing of recovered Charas in safe custody, we have made an in-depth analysis of the record. It is noticed that en the eventful day. Zahid Ghafoor 706/HC (PW.1) was performing duty of Moharrar/Station Clerk at Police Station Qabula Sharif. According to him, the recovered Charas was entrusted to him on 20.12.2015 by Ahsan Haider ASI/complainant (PW.2), which was in two sealed parcels. He further deposed to have handed over these parcels to Ahsan Haider ASI (PW.2) on 12.01.2016 for its onward delivery to PFSA. For reference sake, a portion from the examination-in-chief of Zahid Ghafoor 706/HC (PW.1) is mentioned below:- "Ehsan Haider complainant handed over me two sealed parcels, said to contain case property i,e, Charas while other sealed parcel for sample."
It is intriguing to observe here that Ahsan Haider ASI (PW.2) stated during his cross-examination that he handed over Charas (P.1) to Fakhar-ud-Din SI (PW.3) and not to Zahid Ghafoor 706 HC (PW.1). Since this is an important aspect, hence we deem it appropriate to reproduce an extract from the cross-examination of Ahsan Haider ASI (PW.2) which is as under:- "Case property P.1 was handed over by me to Fakhar-ud-Din SI at the spot. I did not hand over the case property P.1 to the Moharrar of Police Station Qabula Sharif."
The afore-mentioned anomaly arising out of the statements of Ahsan Haider ASI (PW.2) and Zahid Ghafoor 706/HC (PW.1) is giving rise to a material contradiction as the acceptance of the statement of one necessitates the rejection of other. It further insinuates from record that Ahsan Haider ASI was also confronted with relevant entry of register No,19, according to which the case property was handed over to Zahid Ghafoor 706/HC by none other than him but he disowned even this entry. In the given circumstances, we are persuaded to hold that prosecution has not been able to discharge its onus of proving the safe custody of recovered substance and such omission is giving rise to a reasonable doubt.
11.There is yet another aspect which has swayed us to draw an inference adverse to the case of prosecution. It is noticed by us that Zahid Ghafoor 706/HC (PW.1) deposed to have handed over "parcels" to Ahsan Haider ASI for onward transmission to PFSA, Whereas; according to the report (Exh.PD) only one sealed parcel containing 10 grams of suspected Charas was received in PFSA which too on weighing transpired to be 33.56 grams of Charas. From afore-mentioned conflict, it alludes that it is not a remote possibility that the samples forwarded to PFSA were of some other case. While holding so, we have also in our minds that the colour of recovered Charas narrated by Ahsan C Haider AS1 (PW.2) is different from the one which is mentioned in the report of PFSA (Exh.PD).
12.It is further unearthed from record that the original report issued by PFSA was not tendered in evidence and instead its attested photocopy (Exh.PD) was placed as such. It needs no mention that as a general rule, in order to prove the contents of a document, its author is required to appear in the witness box. However, according to section 36 of CNSA, 1997, a document purporting to be a report signed by government analyst is admissible in evidence even without calling him as a witness. For reference sake, the foregoing provision is reproduced which is as under:-
36. Reports of Government Analysts---(1) 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."
We deem it appropriate to observe here that afore-mentioned provision of law is pari materia in nature with section 510, Cr.P.C. which makes admissible certain classes of reports even without calling their authors as witness. The provision of section 510, Cr.P.C. was introduced in the statute through Law Reforms Ordinance, 1972. The aforementioned two provisions of law bestow on the courts the power to use in evidence certain reports, without calling their authors as witness.
Apparently, the purpose of enacting the aforementioned provision is to save certain class of expert witnesses from the peril of unnecessarily appearing as a witness in every case in which they have submitted a report. However, in order to qualify for acceptance, original reports are required to be tendered in evidence. Similarly, in order to get benefit of either section 36 of CNSA, 1997 or 510, Cr.P.C., the prosecution is required to produce the original document and not its photocopy even if attested. In the instant case, as mentioned above, the prosecution produced only an attested photocopy of the report purported to have been issued by Government Analyst of PFSA which in no manner is in consonance with section 36 of CNSA, 1997 or section 510, Cr.P.C. In such circumstances, the prosecution was legally obliged to prove the contents of Exh.PD calling the Government Analyst as witness during trial. The failure of prosecution to do so has rendered the report (Exh.PD) as of no legal consequence. While holding so, reliance can be placed on a case reported as Muhammad Siddique alias Bheria v. The State (2005 PCr.LJ 726), wherein a Division Bench of this Court observed as under:- "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 this respect, reference can further be made to the cases reported as Muhammad Bux v. The State (2011 PCr.LJ 1466), Gul v. The State (PLD 1977 Karachi 1019) and Rustam Ali Pitafi v. The State (2015 PCr.LJ 1762).
13. An in-depth analysis of the record further makes obvious another legal lacuna which directly relates to the admissibility of report of PFSA (Exh.PD). As a general rule, envisaged in Article 75 of Qanun-e-Shahadat Order, 1984, a document is to be proved by primary evidence. Article 76 provides an exception to what is embodied in Article 75 of Qanun-e-Shahadat Order, 1984 and according to its clause (c), the contents of a document can be proved through secondary evidence in cases provided therein. We deem it advantageous to reproduce Article 76 of Qanun-e- Snahadat Order, 1984, which is as under:- "76 Cases in which secondary evidence relating to document may be given. Secondary evidence may be given of the existence, condition or contents of document in the following cases:-
(a) ..............................
(b) ......................
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time."
To be precise, it emerges from clause (c) of Article 76 that secondary evidence in respect of it document can only be tendered if it is shown to have been destroyed or lost. Needless to mention here the projected destruction or loss of document is to be proved by leading some evidence or by bringing on record some supporting material. In order to find some traces of any explanation regarding justification for tendering in evidence the Exh.PD which is copy of original report of PFSA, we have anxiously gone through the record of the case and have found that indeed there exists no acceptable reason in this regard. We consider it expedient to reproduce interim order dated 06.11.2017 from the order sheet of learned trial court whereby the report of PFSA was tendered in evidence and is an under:- "At this stage, learned DDP for the State while recording his separate statement tendered report of PFSA Lahore and closed the prosecution case.
Now to come up for statement under section 342 of Cr.P.C. of the accused on 08.11.2017."
From above, it reasonably follows that before placing on record the copy of PFSA report (Exh.PD) no explanation for failure to produce its original was offered by prosecution. In this view of the matter, apparently there was no occasion even for the court to allow the prosecution to tender Exh.PD which for all practical purposes was secondary evidence. This aspect has further leaned us to hold that Exh.PD since was not brought on record in accordance with law, hence, cannot be considered in any manner. If at all, the original report of PFSA was lost or destroyed, the prosecution should have produced the Analyst/Chemical Examiner as witness.
14. From the lacunas and shortcoming mentioned above, reasonable doubt emerges, the benefit of which cannot be withheld from appellant. We are of the considered view that in the given circumstances, it is not in the consonance with the dictates of justice to uphold the conviction and sentence awarded to the appellant. Resultantly, while allowing Criminal Appeal No, 129049 of 2018, the conviction and sentence of Muhammad Yaqoob alias Kuba (appellant) is set aside and he is acquitted of the charge. He shall be released forthwith if not required to be detained in any other criminal case.