ANWAARUL HAQ PANNUN, J.---Through this appeal under section 48 of The Control of Narcotic Substances Act, 1997 (CNSA, 1997), the appellant Muhammad Ameen has challenged his conviction, and sentence awarded to him, vide judgment dated 20.12.2017 in case/FIR No,355/2016, dated 16.06.2016, offence under section 9(c) of CNSA, 1997, registered at Police Station Luddan, District Vehari by the learned Addl. Sessions Judge/Judge Special Court CNS, Vehari, whereby the appellant has been convicted and sentenced as under:- Under section 9(c) of CNSA, 1997 "to undergo rigorous imprisonment for four (04) years and six (06) months and fine of Rs.20,000/-, in default of payment thereof, the convict shall further undergo for five (05) months' (S.I)."
Under section 9(a) of CNSA, 1997 "to, undergo rigorous imprisonment for seven (07) months and fine of Rs.5000/-, in default of payment thereof, the convict shall further undergo for two (02) months and fifteen (15) days S.I."
Both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. is also extended to the convict."
2. Concise facts forming the background of the prosecution's case are to the effect that on 16.06.2016, Muhammad Khalid SI/SHO (PW-3) along with Munawar Hussain ASI, Zahoor Ahmad 1212/C, Ali Shair 1196/C, Riaz Ahmad 861/C and Munir Ahmad PQR was present at RHC Luddan, on official vehicle bearing Registration No 1561/VRP, being driven by Waqar Hussain 706/C, he received spy information that if raided, a notorious narcotic drug peddler Muhammad Amin (present appellant) selling narcotic near graveyard of Luddan, may be apprehended and contraband could be recovered from his possession. Consequently a raid was conducted by a raiding party under his supervision and the accused/appellant was apprehended. Upon search of shopper, the accused/appellant was carrying in his hand, charas (P-1) weighing 1300 grams was recovered whereas upon his personal search, "Heroin" (P-2) weighing 25 grams was recovered from the right side pocket of his shirt coupled with cash/sale proceed worth Rs.700/-. The complainant prepared two sealed parcels of recovered "charas" and "Heroin" and took into possession vide recovery memo (Exh.PB) and, sale proceed was also taken into possession vide recovery memo (Exh.PC).
3. On receiving report under section 173, Cr.P.C., the learned trial Judge took the cognizance, supplied the copies of the statements of witnesses recorded under section 161, Cr.P.C. to the appellant under section 265-C, Cr.P.C., framed the charge, to which, the appellant pleaded not guilty, proceeded to record the evidence of the prosecution witnesses i,e, PW-1 to PW-5, where- after the leaned Prosecutor submitted photocopies of different FIRs as Mark-A to Mark-N and copy of report of Punjab Forensic Science Agency, Lahore (Exh.PF) under objection instead of original, which was positive in nature. Thereafter, the appellant was examined under section 342, Cr.P.C. wherein he pleaded his innocence. In reply to the question that why this case and why the PWs deposed against him, the appellant replied as under:- "The instant case was lodged with mala fide, because my wife Razia Bibi moved an application against one Safdar Hussain ASI who is subordinate and colleague of the complainant and P.Ws."
The appellant did not examine himself under section 340(2), Cr.P.C., however, produced newspaper clipping daily Pakistan Multan dated 30.12.2015 as Mark-A, and closed defense evidence. The trial Judge convicted and sentenced the appellant, as alluded to in para No,1 of the instant judgment.
Hence, this appeal.
4. The prime contention of learned counsel for the appellant is that copy of report of Punjab Forensic Science Agency, Lahore (Exh.PF) in lieu of original produced by prosecution is not admissible in evidence under section 510, Cr.P.C., hence learned trial Court has erred in law while passing the impugned judgment, hence accepting the instant appeal, the appellant may be acquitted of the charge.
5. On the other hand, learned Prosecutor has not been able to controvert the above contention of learned counsel for the petitioner except that since the defence waived its objection before the trial Court subsequently, therefore, in the appeal, the abovesaid argument of learned counsel for the appellant is not available for pressing into service and prayed for dismissal of the instant appeal.
6. Arguments heard and record perused.
7. For ready reference, section 510, Cr.P.C. is reproduced as under:- [510. Report of Chemical Examiner, Serologist, etc. Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government [or of the Chief Chemist of Pakistan Security Printing Corporation, Limited] or any Serologist, finger print expert or fire-arm expert appointed by Government upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code: Provided that the Court may [if it considers necessary in the interest of justice] summon and examine the persoi by whom such report has been madel"
8. In the instant case, admittedly the original report of Punjab Forensic Science Agency (Exh.PF) has not been produced and only copy of report of PFSA (Exh.PF) has been brought on record. It is interesting to note that on 23.11.2017, learned DDPP for the State produced the copy of report of PFSA (Exh.PF) which was exhibited under objection raised by learned defence counsel and the case was adjourned to 23.11.2017 for recording of statement of the accused/appellant under section 342, Cr.P.C. on which date, learned DDPP for the state moved an application under section 540, Cr.P.C. for summoning of a PW without mentioning the name or official nomenclature of the person to be summoned for proving the report of PFSA (Exh.PF) on which no order could be passed till 05.12.2017.
On said date, the following order was passed by the learned trial Judge:- "Learned counsel for the accused stated that he wants to withdraw his objection regarding report of PFSA. Learned counsel for the accused has made signature in this regard. In view of the statement of learned counsel for the accused, the petition under section 510, Cr.P.C. regarding summoning of witness along with record is hereby dismissed being infructuous. Now to come up on 09.12.2017 for recording the statement of accused under section 342, Cr.P.C."
Thereafter, the statement of the accused/appellant under section 342, Cr.P.C. and other defence evidence was recorded and the case was decided as discussed supra through the impugned judgment.
9. The above resume of facts indicate at least two interesting points:-
(1) That the learned prosecutor moved an application in a very abstract manner for summoning of PWs without mentioning the name or the nomenclature of the person to whom he wanted to summon for proving report of PFSA (Exh.PF).
(2) On withdrawal of objection regarding report of PFSA (Exh.PF) by learned defence counsel, the learned trial Court simplicitor dismissed the application for summoning of witnesses.
10. The learned trial Judge in our estimation proceeded in the case in a very casual manner being oblivious of its own duty because it was the Court which has to decide about the admissibility or otherwise of any piece of evidence being produced before it. On account of waiver/withdrawal of objection by the learned defence counsel on the report of PFSA (Exh.PF), the same could not have been qualified to be an admissible piece of evidence under section 510, Cr.P.C. Mere withdrawal of the objection by learned defence counsel would not amount to waiving of right of questioning the admissibility of this piece of evidence. There is no concept of waiver or estoppel against question of law and especially in criminal law. It can be agitated as and when occasion arises. It is the Court, which has to decide the case strictly in accordance with law as the question of life and liberty of the accused is A to be decided by it. In this, case, we have found as observed earlier that the prosecution has failed to bring on record the original report of PFSA through which the prosecution had to confirm that the alleged recovered material from the appellant was a contraband for seeking "conviction and sentence of the accused. For our above view, we also seek support from the case titled "Ghayour Abbas v. The State" (2018 YLR 2494) wherein it is observed that:- "However, the report of the concerned quarter available on file as Exh.PE reflects that it is neither original report nor it is true/certified copy of the report rather it is a duplicate copy, which was issued on 13.01.2017 i,e, four years after the occurrence. Moreover, it does not carry signathre of the Bio- Chemist or Chemical Examiner and only signatures of one Additional Medical Superintendent (Admn.), Benazir Bhutto Hospital, Rawalpindi, are affixed on it and underneath his stamp it is mentioned ex-Chemical Examiner. No doubt the report of Chemical Examiner is to be brought on record in terms of section 510, Cr.P.C. and that could be without summoning its author, however, admittedly it should be in original form and in case its original is not available, then on the basis of very cogent reasons then its certified copy should be presented for consideration by the learned trial court. However, perusal of Exh.PE reflects that neither it is original report nor it qualifies to be a certified/true copy, hence, it cannot be read in evidence against the appellant to connect him with the case. Moreover, there is no provision of law to deviate from the requisite mode of proof of a document. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in Province of Punjab case reported as 2017 SCMR 172; wherein following principle was laid down:-- "=--Chap. V [Arts. 72 to 101 1--Documents brought on record--- Mode of proof---Provisions governing the mode of proof could not be compounded or dispensed with, nor could the Court, which had to pronounce a judgment, as to the proof or otherwise of the document be precluded to see whether the documents had been .proved in accordance with law and could, as such, form basis of a judgment."
When facts of the case in hand are examined on the touchstone of the case law referred to above, we have been persuaded to hold that the report of Chemical Examiner (Exh.PE) in this case is neither a legal document nor it carries any sanction of law, hence the same being vague/invalid document could not be read against the appellant. Therefore, the learned trial court was not justified in recording conviction against the appellant on the basis of such a indistinct document."
11. For what has been discussed above, we are persuaded to hold that the report of PFSA (Exh.PF) in this case is neither a legal document nor it carries any sanction of law, hence the same could not be read against the appellant as piece of evidence. The learned trial Court was not justified in recording conviction against the appellant on the basis of such inadmissible document.
Resultantly, the instant appeal is allowed, as a consequence whereof, conviction and sentence recorded through the judgment dated 20.12.2017 passed by learned Addl. Sessions Judge/Judge Special Court CNS, Vehari is set aside. The appellant is acquitted of the charge and he is directed to be released forthwith, if not required in any other case.