SARDAR MUHAMMAD SARFRAZ DOGAR, J.---Having faced trial in case FIR No. 26 dated 31.12.201 1, offence under section 9(c) read with section 15 of the Control of Narcotic Substances Act, 1997, registered at P.S. ANF, Faisalabad, the convict-appellant, Abdullah son of Noor Syed was convicted by the learned Additional Sessions Judge/Judge Special Court CNS, Faisalabad vide judgment dated 24.2.2016, under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to death with direction to pay Rs. 1,00,000/- (rupees one lac only) as fine and in case of default whereof to further undergo S.I. for one year . Benefit of section 382-B, Cr .P.C. was also given to him.
2. The appellant has challenged his above-said convictions and sentences before this Court by way of filing instant Criminal Appeal No. 217-J of 2016 through jail under section 48(1) of the Control of Narcotic Substances, Act, 1997, whereas, a Capital Sentence Reference No.10-N of 2016 sent by the learned trial Court under Section 374, Act V of 1898 is also under consideration, for confirmation or otherwise of the sentence of death awarded to the appellant. W e propose to decide both these matters together through this consolidated judgment.
3. Pithy facts of the prosecution case as propounded by the complainant/Investigat ing Officer Farooq Azam, Inspector (PW3) through complaint (Ex. PA) on the basis whereof formal FIR (Ex.P A/1) was chalked out are that on 31.12.201 1, the high-ups of ANF received information through motorway police that a car bearing Registration No. IDM-5693 of white colour with two riders was stopped by it and narcotics have been recovered from the said car. So, upon the orders of high-ups complainant (PW3) constituted a raiding party consisting of Muhammad Ehsan Azam, ASI (PW4), Babar Saleem HC/Driver . Zameer-ul- Hassan Sipahi and other officials of Police Station, ANF, Faisalabad and after that through official vehicles they reached at Beat No. 9, Motorway Second South, Sial Mor, Motorway Camp, Sargod ha at about 7.40 a.m. where the officers of motorway Imdad Ullah (PW2), Asad-ul-Haq SPOs and other officials delivered the custody of both the appellants and car bearing Registration No. IDM-5693 Corolla XLI, ten Toras of white colour containing 180 packets of charas recovered from the dickey of the car and other articles recovered from their personal search were taken into possession by the I.O.
On interrogation about the narcotics Abdu llah son of Noor Syed frankly admitted that five toras of charas containing 90 packets were belonging to him and these packets were to be delivered at Arifwala. I.O. weighed the 90 packets of charas, each packet was found 1200/1200 grams, total weight was found 108 k.g. I.O. separated ten grams charas from each packets, sealed into separate parcels for analysis and the remaining was sealed into same five toras.
I.O. took into possession charas (P2) along with car (P3) vide recovery memo. (Ex. PC) attested by Ehsan Azam, ASI Babar Saleem HC/Driver and Imdad Ullah SPO of motorway Police.
4. In pursuance of the above F.I.R., inves tigation was conducted by Farooq Azam, Inspector (PW3), who during the course of investigation recorded the statements of witnesses under section 161, Cr.P.C.; sent the samples for analysis to FSL. On completion of investigation, challan was prepared and sent to Court.
5. The learned trial court, while taking cognizance of the case framed the formal charge against the appellant on 22.03.2012 under section 9(c) read with section 15 of "C.N.S.A., 1997 on account of recovery of 108 kgs charas from the appellant. The appellant while resisting the charge pleaded not guilty and claimed trial. In order to prove the charge against the appellant, prosecution examined four witnesses and also tendered certain documents including report of the Chemical Examiner for the Punjab, Lahore (Ex. PL) as part of prosecution evidence. On completion of prosecution evidence, statement of the appellant was recorded under section 342 of "Cr.P.C." through which he denied all the allegations against him and pleaded his innocence. The appellant, however , did not opt to either record his statement under section 340(2) of "Cr.P.C." or to produce any defence evidence. On culmination of trial, the appellant was convicted by way of impugned judgment as is referred hereinabove. Hence, this appeal and the connected Capital Sentence Reference before this Court.
6. Arguments advanced by the learned counsel for the appellant as well as learned Special Prosecutor for ANF have been heard and the record has been perused minutely .
7. The Court has to examine the evidence from the starting point in order to reach to an inescapable conclusion on the basis of reasoning keeping in mind the legal principles and after satisfying the 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.
Needless to mention here that the chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory . The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. In this regard, guidance can be sought from the case of The State through Regional Director ANF v . Imam Bakhsh (2018 SCMR 2039 ).
8. The prosecution story begins when on 31.12.201 1 in the area of Beat No. 9 Sial Mor Motorway , Imdad Ullah, Senior Patrolling Officer, (PW2) along with Inspector Asad-ul-Haq was on patrolling-and due to fog, diversion was made. The car bearing No. IDM-5693 XLI was stopped to take the diversion. The driver of the car did not obey the direction and instead of it he started to talk over phone in Pashto language with someone and then after closing the phone call started to take the diversion, due to which Imdad Ullah SPO (PW2) became conscious and he stopped the vehicle and issued direction to the driver and co-pilot to tome out from the car and asked them to search for the vehicle. On the direction of Imdad Ullah SPO (PW2) dickey of the car was opened and 'bags containing packets were found in the dickey . On inquiry , Abdullah son of Noor Syed admitted that it was charas, whereupon both the accused were arrested, and were brought at base camp of motorway along with car and case property and from there information was conveyed to ANF authorities and subsequently Inspector Farooq Azam (PW3) Ahsan Ullah and others came at the camp and ten bags containing 180 packets of charas, the custody of accused persons and other articles recovered from the accused were delivered to Inspector Farooq Azam against a receipt (Ex. PH).
9. We have meticulously examined the record of case from which it A divulges that neither the accused were taken into custody by the Investigating Officer at the spot nor the case property was handed over to him at the place of occurrence rather the same had already been brought to the base camp prior to the arrival of the Investigating Officer at the spot. Even no attempt was made in this case to show that the case property was kept in safe custody after recovery till handing over to Inspector Farooq Azam (PW3) at base camp which was at a distance of 20 kilometers from the place of diversion from where the accused were intercepted by Imdad Ullah, Senior Patrolling Officer, (PW2). Imdad Ullah, Senior Patrolling Officer (PW2) during the cross-examination deposed that when they left the diversion for the camp the car of the accused persons was driven by Falak Sher, Assistant Patrolling Officer. But surprisingly neither name of said Falak Sher, Assistant Patrolling Officer was ment ioned anywhere nor he was produced as a witness to prove recovery of narcotics from the accused and safe custody and safe transmission of alleged narcotic contraband from the place of diversion from where the accused were apprehended and arrested by (PW2 ) to the camp office where the proceedings were conducted subsequently by PW3 Inspector Farooq Azam. The testimony of Imdad Ullah, Senior Patrolling Of ficer (PW2) is crucial and important in this regard, who during the cross-examination stated infra:- "The distance between the place of diversion and of camp is about 20 K.M. When we left the diversion for the camp the car of the accused persons was driven by Falak Sher Assistant Patrolling Officer . I have not mentioned his name anywhere."
Thus, 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 of narcotics from the accused and safe custody and safe transmission of the recovered substance from the place of diversion to the base camp. Sole deposition of Imdad Ullah, SPO (PW2) requires corroboration in this regard but the same lacks in this case, therefore, his credibility without any corroboration is not safe to be believed.
10. Even otherwise, it is apparent from record that the recovery proceedings have not been conducted at the place where the accused were taken into custody along with the car, from the dickey of which alleged contraband was recovered rather the same were conducted at camp office which was at a distance of 20 k.m. It is not merely a minor lapse but there is very strong suspicion about the entire prosecution story . Apart from this, we have observed that his statement before the learned trial Court is replete with improvements/contradictions which cannot be said to be insignificant and those are reproduced as follows:- "I narrated in my statement before the I.0. that on 31.12.201 1 there was fog on motorway . (Confronted with Ex. -DA) where it is not so recorded. I did not record get record in my statement before the I.O. that diversion was made on motorway . Today I have deposed about diversion while refreshing my memory . I specifically not recorded in Ex-DA that the car bearing No IDM-5693 XLI was stopped to take the diversion. (Confronted with Ex-DA) where the specific above said sentence deposed by the PW in his examination-in-chief is not mentioned, anyhow , it is mentioned that during patrolling____________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________ I did not get record in my statement Ex-DA in detail that the driver of the car Abdullah son of Noor inquired that why they were asked to take the diversion upon which he was informed that due to fog the direction has been issued to take diversion otherwise they would have to wait for the clearness of the weather . I did not get record in my statement Ex. DA that driver of the car instead of obeying my direction started to take over phone in Pashto language with someone. I did not get record in my statement Ex-DA that after closing the phone he started to take the diversion. Similarly I did not record in my statement Ex-DA that I became consciou s that he has taken instructions from someone. I also did not record in my statement Ex-DA that I stopped the vehicle upon this again and I issued direction to the driver and co-pilot to come out from the car and I asked them to search for the vehicle and that to open the dickey . I did not get record in my statement Ex-DA that I informed my high-ups about the occurrence There is no lock-up-at base camp, however , the accused were hand-cuffed. Moharrir is deputed at base camp. In fogy weather we managed the traffic with our best efforts near exit point."
It has been held by the august Supreme Court in "Sardar Bibi and another v. Munir Ahmed and others" (2017 SCMR 344), that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence such witness requires corroboration.which is very much lacking in the instant case.
11. An in-depth analysis of the record further makes obvious another legal lacuna which directly relates to the admissibility of receipt (Ex. PH) through which delivery of narcotics, the car and the custody of two persons etc. was made to Farooq Azam, Inspector (PW3). 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. W e deem it advantageous to reproduce Article 76 of Qanun-e-Shahadat 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 eviden ce 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 (Ex. PH) which is copy of original receipt of handing over of accu sed, charas contraband and other articles to PW-3 Farooq Azam, Inspector , we have anxiously gone through the record of the case and have found that indeed there exists no acceptable reason in this regard.
12. Even otherwise, neither did it find mention the time and place where it was made nor it discloses the name of person from whom these articles were recovered. Even the said receipt does not bear the name of the Officer who deliver ed the aforesaid articles, narcotics and persons etc. Similarly , the stamp bearing on the receipt is of Admin Officer but name of the said Officer is not appearing in the stamp. In this respect statement of Imdad Ullah, Senior Patrolling Officer, is referred who appeared in the Court as (PW2) and admitted during the cross-examination that "As per receipt the name of the officer who delivered the aforesaid articles, narcotics and persons is not appearing in the receipt. The stamp bearing on the receipt is of Admin Officer but name of the said officer is not appearing in the stamp. There is another stamp on the right side of the receipt and the same is not bearing the name of officer". It is further noted that the original receipt qua the delivery of narcotics, the car and the custody of twd persons etc. to Farooq Azam, Inspector by Chief Patrolling Officer was not tendered in evidence and instead its copy attested by Admin Officer, PMP Sial Mor, Sargodha was placed as such. The prosecution has not offered any explanation for failure to produce the original receipt. The attested photocopy (Ex. PH) cannot be relied upon for proving the delivery of narcotics, the car and the accused etc for the simple reason that original of this has not been placed on record and no permission was taken by the prosecution to lead secondary evidence. All this shows that the prosecution must have taken prior permission of the court to lead the secondary evidence. To our mind, prosecution has failed to make out any case to exhibit Photostat copy of the receipt as conditions required for leading secondary evidence are missing, hence, this aspect has leaned us to hold that (Ex. PH) since was not brought on record in accordance with law, hence, cannot be considered in any manner .
13. It is also a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof and for that a higher degree of assurance is necessary to convict the accused. In view of object of the Control of Narcotic Substances Act, 1997 the fundamental duty of the prosecution is to prove beyond a shadow of reasonable doubt that the investigation conducted in the case is absolutely flawless especially with regard to the link evidence which is most significant aspect. In this case investigation was conducted by PW-3 Inspector Farooq Azam, who during the cross-examination admitted that he received information at 5.30 a.m. on 31.12.201 1. He left the police station at 6.00 a.m. and arrived at the Camp at 7.40 a.m. After completion of routine procedure about the recovery of contraba nd, he handed over the complaint (Ex. PA) to Sipahi Zameer-ul-Hassan on the basis of which formal F.I.R. (Ex.
PA/1) was chalked out by Muhamad Ashraf, ASI (PW1) on 31.12.201 1 at 11.00 a.m. According to PW3- Inspector Farooq Azam, they arrived back at the police station at about 12.00 noon when Sipahi Zameer-ul-Hassan met him who delivered back to him original complaint and copy of FIR.
14. There is another aspect of the case of the glaring contradiction in the statements of the prosecution witnesses, also making the case of the prosecution highly doubtful. Muhammad Ashraf, ASI (PW1) Malkhana Moharrar deposed during examination-in-chief that:- "It is correct that I did not receive any phone call from any officers of motorway on 31.12.201 1 from 12.00 a.m. (night) till 11.00 a.m. (noon). Raiding party while leaving police station for conducting raid did not incorporate the departure Rapt in the Roznamcha.
I did not receive the information about the recovery of narcotics at motorway rathe r the same was received by the officers available at police station in my presence.
On the other hand, Ihsan. Azam, S.I. (PW4) during the cross-examination stated that:-- "The occurrence of this case took place on 31.12.201 1. Moharrir asked me at about 5.30 a.m. to proceed to base camp, motorway , Sargodha.
Inspector Farooq Azam (PW3) during the cross-examination on this crucial point qua the receiving of information stated as under:- "The occurrence took place on 31.12.201 1. My higher officers informed that motorway police has arrested two persons and seized a car with consignment of narcotics at Beat No. 9, Sial Mor Motorway , District Sargodha. I received this information at 05.30 a.m.
Moreover , the complainant had not witnes sed as to who was on the steering wheel of the car and driving at the time of occurrence. Record is silent as to how and from which scale, the recovered contraband was weighed. Even otherwise, complainant Inspector Farooq Azam (PW3) during the cross- examination admitted that the recovery was not effected from the accused in his presence rather it was the motorway police who effected the recovery from the accused persons. All these circumsta nces taken together cast doubt about the happening and handing over the accused and case property to PW3 Farooq Azam, Inspector .
15. There is yet another aspect which has swayed us to draw an inference advers e to the case of prosecution that after taking custody of the accused as well as possession of the narcotics, Inspector Farooq Azam (PW3) did not take them to Police Station to register the FIR and instead deputed Sipahi Zameer-ul-Hassan to take his written complaint, which he wrote out when the accused were taken into custody , to Police Station which was at a distance of 100 k.m. from the place of recovery and the FIR was registered on the basis of said written complaint, Sipahi Zameer-ul-Hassan was not produced as a prosecution witness. Since Police Station ANF, Faisalabad was at a distance of 100 kilometers from the place of occurrence it does not stand to reason that why Sipahi Zameer-ul-Hassan was directed to go alone to police station which was at a so long distance with the written complaint whilst PW-3 Inspector Farooq Azam himself could easily have driven there in the car. The fact as to how Sipahi Zameer-ul-Hassan came to Police Station remained in mystery .
The non-production of Sipahi Zameer-ul-Hassan who took the written complaint and the inexplicable conduct of the complainant PW3 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity . Even otherwise, as per statement of Muhammad Ashraf, Naib Moharrar/HC (PW1) Sipahi Zameer-ul-Hassan arrived at Police station at about 1 1.00 a.m. whereas, complainant Inspector Farooq Azam claimed that they arrived back at police station at about 12.00 noon. No explanation was offered by PW-3 what he was doing in the intervening period, thus, the manner in which this case was split up is inexplicable. Reliance in this respect can be placed on "Minhaj Khan v.
The State" (2019 SCMR 326 ).
16. We have noticed that in the case in hand the report submitted by the Chemical Examiner was legally laconic 'which suffers from number of shortcomings and cast doubts on the safe custody and safe transmission of the sample(s) rendering the same to impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, incapable of sustaining conviction. In the instant case although 90 sealed parcels of samples separated from the charas recovered from the appellant were transmitted in the office of Chemical Examiner , yet the report submitted by the Chemical Examiner cannot be considered to be conclusive proof regarding the status of the recovered substance and cannot be relied upon for sustaining conviction of the appellant as it has been submitted in violation of section 36 of the Act and Rules 5 and 6 of the Rules, inasmuch as, the report of the Chemical Examiner bears only one signature of the Government Analyst whereas the Rules stipulate signatures of two officers and even the said report is completely silent regarding the necessary protocols of the test applied coupled with the fact that no description and specification of sealed parcels qua the recovery effected from the appellant has been mentioned therein. In this regard, reliance can be placed upon the case of "The State through Regional Director ANF v . Imam Bakhsh" (2018 SCMR 2039 ) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "9. We have noted above that In Crimin al Appeals Nos, 521 to 525/2017 and No,22/2018, safe custody and safe transmission pf tits alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain 'of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory . This chain of custody , pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory . The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample('s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction . This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002 ) that where safe custody or safe transmission of the alleged drug is not established the Report of the Government Analyst becomes doubtful and unreliable.
In this regard, in another recent pronouncement dated 13.09.2018 delivered by Full Bench of august Supreme Court of Pakistan in case of "Abdul Razzaque v. The State" (Criminal Review Petition No. 69 of 2018 in Jail Petition No.301 of 2014) matter his been settled once for all in the following words:- "It has already been held by this Court in the case of Amjad Ali v. The State (2012 SCMR 577) and Ikramullah and others v. The State (2015 SCMR 1002 ) that in a case where safe custody of the recovered substance or safe transmission of the samples of the recovered substance is not proved by the prosecution there an accused person cannot be convicted in such a case. This aspect of the case had escaped attention of this Court at the time of passing the order under review ."
There is another aspect of the case of the glaring contradiction in the statements of the prosecution witnesses, which makes the case of the prosecution highly doubtful. PW3, Inspector Farooq Azam, Investigating Of ficer in his statement before the learned trial Court deposed as under:.
"On interrogation about the narcotics Abdullah son of Noor present in court admitted that five Toras of charas Nos, 1 to (number given by me) containing 90 packets of charas were belonging to him which were to be delivered at Arifwala. I weighed the 90 packets of charas, each packet was 1200/1200 grains, total weight was 108 k,g, I separated ten grams charas from each packet, sealed into separate parcels for analysis and the remaining was sealed into same five toras. This charas is P-2. I took the charas into possession along with car (P-3) vide recovery memo Ex-PC, attested by Msan Azam AS1, Babar Salim HC/Driver and Imdad Ullah SPO of motorway police,"
Ihsan Azam S.I. (PW4) deposed during examination-in-chief on the subject matter In the following manner:- "On interrogation about the narcotics by the I.O. Abdullah son of Noor (facing trial separate as major) admitted that five Toras of charas (Nos. 1 to 5) containing 90 packets of charas were belonging to him and these packets were to be delivered at Arifwala. I.O. weighed the 90 packets of charas, each packet was 1200/1200 grams, total weight was 108 k.g. I.O. separated ten grams charas from each packet, sealed into separate parcels for analysis and the remaining was sealed into same five toras. This charas is P-2. I took the charas into possession vide recovery memo Ex-PC, attested by me, Babar Salim HC/Driver and Imdad Ullah SPO of motorway police."
From the perusal of above, although it was claimed that a separate sample was obtained from every packet allegedly recovered from the appellant's possession and then all such samples, i.e. 90 in number were sent to the Chemica l Examiner separately for analysis in order to confirm that every packet contained charas, but on perusal of Chemical Examiner Report (Ex. PL), it revealed that neither weight of the samples of contraband substance being 10 grams each was mentioned in the Chemical Examiner Report (Ex. PL) nor it revealed that they had weighed each sample, Despite our best efforts we could not find any iota of evidence qua form of contraband that the 'charas was pukhta or gardah or it was in powder form. Moreover , Ihsan Azam, S.I.
(PW4) during the cross-examination admitted that "The numbering on Toras (1 to 5) were present already on the Toras". There is, thus, no evidence to connect the Chemical Examiner report (Ex. PL) with the substance that was seized from the possession of the appellant. This contradiction went to the root of the case. In such eventuality it is not possible to uphold and sustain the judgment of conviction and sentence against the appellant.
17. All these facts evaded the credibility of the deposit of the samples with the Chemical Examiner Office, Lahore and rendered the case of the prosecution doubtful. The burden always remains on prosecution to prove affirmatively right from the arrest of the accused, seizer of the recovered contraband, deposit with moharrar on the same day and till it reaches the office of Chemical Examiner , Lahore. All these facts must be in line but the facts of the present case create doubt on the case of the prosecution and benefit of reasonable doubt always goes to the accused and not to the prosecution. The prosecution has failed to prove its case beyond reasonable doubt. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Reliance is placed on " Muhammad Zaman v . The State" (2014 SCMR 749 ), and " Muhammad Akram v . The State" (2009 SCMR 230 ).
18. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial court are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.
19. Resultantly , death sentence awarded to Abdullah son of Noor Syed appellant is not confirmed and Capital Sentence Reference No.10-N of 2016 is answered in the negative .