SARDAR MUHAMMAD SARFRAZ DOGAR, J.---The appellant, by filing instant appeal, impugns the judgment dated 14.7.2011, handed down by the learned Additional Sessions Judge, Pattoki, District Kasur, in Narcotics Case No.15 of 2010 arising out Crime Report No.220/2007, dated 23.11,2007, whereby the appellant has been held guilty of the offence under section 9(c) of The Control of Narcotic Substances Act, 1997 and sentenced him to undergo penal servitude for Imprisonment of Life and to pay a fine of Rs.5,00,000/- and in default of payment of fine to undergo further simple imprisonment for two years. The benefit of section 382-B, Cr.P.C. was also extended to the appellant No. 2. The factual matrix of the case is that on 23.11.2007, in response to a spy information, the police party of the Police Station City Phoolnagar, headed by Mukhtar Ahmed S.I./SHO (PW-5), intercepted a Truck bearing Registration No.NWFP-2530, Sahib Zar and Gul Rehman were available on the front seat, whereas, Khayal Muhammad was present on the roof top of said truck. However, the appellant was sitting on the backside of the said truck and succeeded to flee away. On search, 91 packets of charas each weighing one kilogram total weighing 91 kilograms were recovered from the secret cavities installed in floor of said truck. Out of recovered charas, 20 grams from each packet was separated for chemical analysis. The recovered charas was taken into possession vide recovery memo (Exh.PA).
3. After completing investigation, the police submitted a report against the absconding accused (appellant) under section 512, Cr.P.C. Meanwhile, the appellant was arrested on 08.11.2009. The charge was subsequently framed against him to which he pleaded not guilty and claimed trial. To substantiate the charge, prosecution examined as many as five witnesses besides tendering report of Chemical Examiner (Exh.PD). However, Waris Ali, ASI and Zafar Iqbal, ASI were also examined as CWs. The statement of appellant was recorded under section 342, Cr.P.C. in which he denied all the allegations of prosecution and claimed his innocence. The appellant neither opted to appear as his own witness in terms of section 340(2), Cr.P.C. nor produced any evidence in his defence. The learned trial Judge after appraising the evidence brought on record and considering the arguments advanced at the bar found the appellant guilty of the charge and thus convicted and sentenced him as mentioned above. Hence this appeal.
4. We have heard the arguments advanced by learned counsel for the appellant as well as learned Deputy Prosecutor General and have minutely perused the record available on the file.
5. The prosecution case is that the appellant was seen by a raiding party of Police Station City Phoolnagar headed by Mukhtar Ahmed SI/SHO comprising of Asghar Ali S.I. (PW-1) while sitting in the. backside of truck loaded with 91 packets of charas in its secret cavities. The appellant was not arrested at the spot and succeeded in escaping from the scene of offence. Asghar Ali SI (PW-1) is also an attesting witness of recovery memo (Exh.PA), who while facing cross-examination stated as under:- "I could not identify the person who had fled away from the roof top of the truck. Three persons who were arrested at the spot, out of them two stand convicted and one stands acquitted. I cannot say whether the accused present in the court with the name of Nazir is the person who had fled away from the spot."
It is worth mentioning that Mukhtar Ahmed S.I./complainant (PW-5) in his examination in chief claimed that he knew the appellant previously, but surprisingly the Final Report was submitted against the appellant in section 512, Cr.P.C. without describing any effort of arrest A of the appellant which attitude on part of the police is quite strange and even is against the implied duties. Moreso, Haji Liaqat Ali Inspector/Investigating Officer (PW-4) in his cross-examination deposed as under:- "The first version of accused Gul Rehman before me was that they deal in narcotic by bringing the same from Peshawar Barra and supply the same to different customers and that they had given the delivery of four maunds of charas at Lahore. However, he did not name out Nazir, the present accused, as a customer or their companion. The other accused Khayal since acquitted, claimed to be, in his first statement before me, driver of the vehicle from which the said recovery was effected. He maintained in the said version that he had loaded the said charas which belonged to Gul Rehman etc, however, he did not name out the present accused Nazir Ahmed as the purchaser of their companion.
As per my investigation, there was no link of the said truck with the present accused Nazir Ahmed.
The persons who had named out the present accused as the culprit, were not made to confront with those accused who have not named out Nazir Ahmed as culprit in this case."
In the above situation, we are of the view that the identification of the appellant is based on hearsay evidence and the same does not come under the definition of res-gestae also which requires direct evidence within meaning of Article 71 of the Qanun-e-Shahadat Order, 1984. The consequence of such evidence would be nothing but that such identification of the appellant is not reliable. Worth to add here that the prosecution has to prove the recovery from the possession of appellant and only then a claim of conviction could be examined. Reference is sought from the case of Muhammad Noor and others v. The State (2010 SCM R 927) wherein it is held that:-- "The above section expressly cast a duty upon the Court to presume in a trial under the Act that the accused has committed the offence under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such drugs.
Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. ..."
6. We have meticulously examined the record of case from which it divulges that the prosecution has also failed to prove its case on the dimension of safe custody of case property as Haji Liaqat Ali Inspector/Investigating Officer (PW-4) while appearing before the learned trial Court deposed that he handed over the case property and sample parcels to the Moharrar at the Police Station.
Whereas, Anayat Ali ASI/Moharrar (PW-3) in his examination in chief acknowledges only receiving of 91 sample parcels from the Investigating Officer. The D depositions of Moharrar (PW-3) are silent with regard to receiving of case property or its safe custody. Meaning thereby, the case property has not been kept in the Malkhana in safe custody, as such, the safe custody of case property cannot be proved. Needless to mention here that the chain of custody begins with the recovery of the seized narcotics 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 SCM R 2039). The relevant portion whereof is being reproduced below:- "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 government Analyst, thus, rendering it incapable of sustaining conviction."
The above quoted dictum laid down by the Hon'ble Supreme Court of Pakistan makes it crystal clear that in absence of safe custody of case property, no conviction can be recorded.
7. Apart from above, it is also noticed that the prosecution has tendered in evidence copy of report of Chemical Examiner Report instead of original one. There is no explanation on the record as to why the original was not produced. The author of said report has also not been produced before the learned trial Court. At this stage, it will be expedient to reproduce the provisions of section 36 of C.N.S.A., 1997 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."
No doubt the above quoted provision of law makes it crystal clear that a document purporting to be a report signed by Government Analyst is admissible in evidence even without calling him as a witness but the said 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 C.N.S.A., 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 failed to produce the original report, which in no manner is in consonance with section 36 of C.N.S.A., 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. 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."
This view is further reiterated by this Court in the case of Muhammad Yaqoob v. The State (2018 PCr.LJ 1476).
8. Besides above, 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-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 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 Chemical Examiner, we have anxiously gone through the record of the case and have found that indeed there exists no acceptable reason in this regard. From above, it reasonably follows that before placing on record the copy of report of Chemical Examiner (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 Chemical Examiner was lost or destroyed, the prosecution should have produced the Analyst/Chemical Examiner as witness.
9. Apart from above, it is also noticed that the said truck has also not been produced before the learned trial Court during the trial proceedings. All the circumstances mentioned above are sufficient to believe that the prosecution case is highly doubtful and based on un-natural and unbelievable story. In the above situation, we are of the view that these aspects of the case cast thick clouds of doubt on the entire prosecution case. It is settled law that even a single doubt in the prosecution story is disastrous for the prosecution case and its benefit must go to the accused. In this respect, we would like to take reliance from a case of apex Court reported as Tariq Pervez v.
The State (1995 SCM R 1345) wherein it is held as:-- "The concept of benefit of doubt to an accused person is deep rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
This view is further reiterated in the cases of Muhammad Akram v. The State (2009 SCM R 230) and Muhammad Zaman v. The State (2014 SCM R 749). In the present case, there are series of circumstances creating doubts, and under the settled principle of criminal justice, the benefit of the doubt goes to the present appellant.
10. The final and eventual outcome of the entire discussion is that we are unable to agree with the findings and conclusions reached at by the learned trial Court and the same are unsustainable which vitiate the impugned judgment. We, therefore, allow the instant appeal. Resultantly, the judgment of the learned trial Court dated 14.7.2011 is set aside, and the appellant is acquitted of the charge. He is on bail. His surety stands discharged from his liability.