RAJA SHAHID MEHMOOD ABBASI, J. Through this criminal appeal; Naeem Ahmad and Muhammad Akhtar appellant assail the vires of judgment dated 21-01-2016 passed by learned Additional Sessions Judge, Sahiwal in case FIR No.5 dated 03-01-2014, under section 9(c) of the Control of Narcotic Substances Act, 1997, Police Station Saddar Chichawatni, through which they were convicted under section 9(c) of Act ibid and sentenced to imprisonment for life along with fine of Rs.10,00,000/- each or in default thereof to further undergo two years' S.I. However, benefit of Section 382-B, Cr.P.C. was extended in their favour.
2. The brief facts of the case as spelt out in complaint (Ex.PD) are that on 03-01-2014, Saeed Ahmad Inspector/complainant (PW.1) was present at police station when he received spy information that International drug mafia through Naeem Ahmad and Muhammad Akhtar (appellants) would transport/smuggle huge quantity of charas on trailer No.869/TLN from Peshawar to Karachi and in case of a raid, huge quantity of charas would be recovered. Considering the said information as correct, a raiding party was constituted under the supervision of Saeed Ahmad, Inspector (PW.1) which reached at G.T. Road near Chak No.37/12-L railway crossing on official vehicle. The raiding party was busy in checking the vehicles when in the meantime trailer No. 869/TLN came from Sahiwal side, which was intercepted on pointing out of the secret informer. The container was checked and on search 425 plastic bags concealed under 3-Star matches cartons, each containing 20Kgs bag or charas (total 212 mounds of charas) was recoverd. Out of all the bags of charas, 10/10 grams were separated for chemical analysis and the remaining charas was also sealed in parcels. Besides, 2000 thousand cartons of 3-Star matches were also recovered. On interrogation, Naeem Ahmad and Muhammad Akhtar (appellants) disclosed that they were driving the trailer one by one. They further disclosed that the'said trailer was owned by Haji Khan Sahib and they were in contact with him on mobile phone No.0341-5731571 and charas was also owned by him but both of them were the members of the gang who used to sell charas to foreigners after transporting the same to Karachi. The charas, locks with keys, trailer along with container, 2000 cartons of matches and registration book of the trailer were taken into possession vide seizures memos (Ex.PA to Ex.PE and Ex.PG). Hence, the crime report.
3. After completion of investigation, report under section 173 Cr.P.C. was sent to the Court of learned Additional Sessions Judge, Sahiwal and the appellants were sent up to face the trial, where charge was framed to which they pleaded not guilty and claimed trial. The prosecution in this case was set into motion on the complaint of Saeed Ahrnad, Inspector, who appeared in the witness box as (PW.1). The recovery was witnessed by Amjad. Hussain, ASI (PW.2). Najam ul Hassan, 390/HC (PW.3) was Officiating as Moharrer. Ali Dad 1044/C (PW.4) deposited the sample parcel to the office of Chemical Analyst. Noor Samad S.I. (PW.5) was investigating officer of the case. Besides, the prosecution examined Muhammad Mubasher, Section Supervisor. Narcotic Units, Punjab Forensic Science Agency, Lahore (PW.7) as secondary witness to prove the forensic report. The prosecution gave up Taimoor Khalid ASI being unnecessary and closed its evidence. After completion of prosecution evidence, the statements under section 342 Cr.P.C. of the appellants were recorded wherein appellant Naeem Ahmad adopted the following plea:- "Actually, police arrested me from my house situated in Fort Abbas. I married ex-wife of my brother in law, who had close relationship with Hafiz Saeed, Inspector. Hafiz Saeed threatened me to involve me in some false case prior to registration of this case and my co-accused was present with me at the time of my arrest, so he was also falsely implicated. Police was. concocted this false case against me."
Whereas Muhammad Akhtar, appellant took the following plea: - "I know nothing about this occurrence. Actually, I was present with Naeem Ahmad in Fort Abbas on the day when he was arrested. Hafiz Saeed due to some previous grudge arrested Naeem Ahmad in a false case and I was arrested only due to my presence with Naeem Ahmad."
The appellants, however, neither produced any defence evidence nor opted to record their statements under section 340(2), Cr.P.C.
4. After completion of trial, the learned trial court proceeded to convict and sentence the appellants as mentioned hereinabove.
5. Learned counsel for the appellants, while questioning the legality of impugned judgment of conviction, submitted that the prosecution case is full of doubts and as such the verdict of guilt cannot sustain against the appellants; that there are material contradictions arising out of prosecution case but have been very conveniently ignored by the learned trial court; that the original report of the Punjab Forensic Science Agency, Lahore was not placed on the record and its attested copy was tendered in evidence but the learned trial court wrongly treated it as admissible piece of evidence. Goes on to maintain that the prosecution has failed to establish the safe custody of the sample parcels, which were to be sent to the office of Chemical Examiner, which further made the prosecution case highly doubtful; that the plain view of the prosecution evidence gives rise to reasonable doubt, but its benefit was withheld froth the appellants without any legal justification. With these submissions, it is urged that conviction and sentence awarded to the appellants is liable to be set aside.
6.. Conversely, learned Deputy Prosecutor General strongly opposed the arguments advanced on behalf of the appellants and submitted that though the witnesses of recovery were police officials but they had no enmity to falsely implicate the appellants in the case; that during trial, guilt of the appellants was well established from the confidence inspiring evidence of recovery witnesses; that the recovered substance was proved to be charas through the report of Punjab Forensic Science Agency, Lahore; that the appellants have committed heinous offence, hence they do not deserve any leniency and that since the prosecution has proved its beyond any shadow of doubt, the conviction and sentence awarded to the appellants need no interference from this Court.
7. We have heard the arguments advanced by learned counsel kw the appellants as well as learned Deputy Prosecutor General and have gone through the record.
8. According to the prosecution's case on 03-01-2014 the police contingents intercepted vehicle No.869/TLN on spy information and apprehended Naeem Ahmad and Muhammad Akhtar appellants boarded in the said vehicle from G.T. Road near Chak No.37/12-L Railway Crossing. The container was checked and on its search 425 plastic bags, concealed under 3-Star matches cartons were recovered, each of which on checking was found to be containing a bag of 20 Kgs of charas. In this way, 212 mounds of charas in toto was alleged to have been recovered. The prosecution further alleged that out of all the bags of charas, samples of 10/10 grams of charas were separated for chemical analysis. In order to establish the guilt of the appellant, the prosecution has examined seven witnesses, amongst whom the statements of Saeed Ahmad, Inspector/complainant (PW.1), Amjad Hussain, ASI, recovery witness (PW.2). Najam ul Hassan, 390/HC Moharar Malkhana (PW.3), Ali Dad 1044/C (PW.4), Noor Samad, S.I./1.O., (PW.5) and Muhammad Mubasher, Section Supervisor Narcotic Units, Punjab Forensic Science Agency, Lahore (PW.7) are of great importance. On comparative analysis of the statements of these witnesses, we have observed that there are material discrepancies with regard to the occurrence. Even otherwise they were unable to disclose about the exact shape of the recovered substance. According to Saeed Ahmad, Inspector/complainant (PW.1) he was using CIA vehicle on the fateful day while according to statements of Amjad Hussain, ASI, recovery witness (PW.2) and Noor Samad S.I/I.O.
(PW.5), he was using Vehicle of Police Station Chichawatni. According to Amjad Hussain ASI, recovery witness (PW.2), they had used electric scale for weighing the recovered charas as well as the samples thereof but Noor Samad S.I./I.O. (PW.5) stated otherwise that the charas was weighed on electric scale and the samples were weighed with "Takri Watta". According to Amjad Hussain, ASI (PW.2) the bags were of different colours as some were of white colour and the others were of blue colour but according to Najam ul Hassan 390/HC (PW.3), some bags were of yellow colour and some were of white colour whereas according to Noor Samad, S.I/I.O. (PW.5), the colours of bags were of white yellow and all the bags were A of same colours, which means that no bag was of blue or white colour. More so, the colour of bags and charas was not mentioned in FIR as well as recovery memos even the bags were not taken into possession by the investigating officer and same were also not produced before the trial court at the time of recording evidence. It is though alleged that 425 plastic bags were concealed under 3-Star matches cartons and on checking of each bag 20 Kgs of charas, total 212 mounds, was recovered from the appellants and out of all the bags of charas, 10/10 grams were separated for chemical analysis which were 425 in numbers but according to the report of the Punjab Forensic Science Agency, Lahore (Ex.PJ), the number of submitted items counted to 427, which fact further creates dent in the prosecution story. Deep analysis of the prosecution evidence reveals that the complainant had made mala fide improvements in his statement and he seemed to be motivated for earning a conviction for the appellants.
9. Apart from the above, the prosecution failed to establish the safe custody as well as depositing of the sample parcels to the office of the Punjab Forensic Science Agency, Lahore. In this regard, it is observed that according to Saeed Ahmad, Inspector/complainant (PW.1), upon recovery of alleged contraband on 03-01-2014, he prepared complaint and sent the same to the police station for registration of FIR and thereafter the investigation of the case was entrusted to Noor Samad, S.I (PW.5), who came at the spot and formally took into possession charas (P.1 to P.425) along with sample parcels thereof vide recovery memo (Ex.PA). Noor Samad, S.I. (PW.5) stated that on the same day, he handed over the case property to Moharrar of police station. The prosecution also examined Najam-ul-Hassan, 390/HC (PW.3), who stated that on 03-01-2014 Noor Samad, S.I. (PW.5) had handed over to him case property comprising of 425 sealed bags of charas and 425 sealed sample parcels thereof for keeping the same in safe custody of malkhana and on 17-01-2014, he handed over the sealed sample parcels of charas to Ali Dad 1044/C for their onward transmission to be office of Punjab Forensic Science Agency, Lahore, but according to the attested copy of report (Ex.PJ) of the said Agency, the parcels were not deposited therein on 17-01-2014, 18-01-2014 and 19- 01-2014 rather the same were deposited on the fourth day i.e. 20-01-2014. The prosecution has absolutely no explanation to offer that when the sample parcels were lying in the malkhana and were in safe custody of Najam-ul-Hassan Head Constable (PW.3) in the police station, then why Ali Dad 1044/C (PW.4) kept the same in his own room that too for almost four days. Though Ali Dad 1044/C (PW.4) had tried to cover-up this material illegality during cross-examination but he had no answer of his failure to deposit the sample parcels within reasonable period. We may observe here that firstly there was no occasion to remove such a large number of sample parcels from the malkhana and secondly there was no justification for Ali Dad 1044/C (PW.4) to keep the same unsafe in another office. Even otherwise it was only an oral assertion and it is not clear as to where the sample parcels were kept from 17-01-2014 to 20-01-2014. This act of the prosecution witnesses is in clear violation of dictum laid down by the Hon'ble Supreme Court of Pakistan in the case "Ikramullah v. State" (2015 SCMR 1002) in which it has been emphasized that the prosecution is under legal obligation to establish the safe custody as well as safe transmission of the sample parcels so taken from the recovered substance without the element of their being tampered with or replaced while in transit. The oral evidence of the prosecution witnesses as to the recovery of charas 212 mounds does not discharge its heavy burden of responsibility and this aspect of the case casts serious dent in the prosecution story regarding safe custody of the sample parcels to the office of chemical analysis. In the trial it was essential for the prosecution to establish by cogent evidence that alleged contraband seized from the possession of the appellants by Noor Samad, S.I. (PW.5) was safely transmitted to the police station and thereafter it was kept in safe custody by Morharrar Malkhana from where the alleged sample parcels were transmitted to the Forensic Science Agency, Lahore for chemical analysis but a complete chain of safe custody is absolutely missing in this case, hence, the samples so deposited in the office of Punjab Forensic Science Agency, Lahore could not be tagged with samples taken from the substance seized from the possession of the appellants. Reliance is placed on the case of State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039) wherein, at paragraph No.9, the apex Court of the country, has been pleased to observe as under:- "9........ we have noted above that in Crl. Appeals Nos. 523 to 525/2017 and No. 22/2018, safe custody and safe transmission of the 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 representatives sample(s) of the seized drug and their dispatch to the narcotics Testing Laboratory. This chain of custody, is 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. The Court has already held in Amjad Ali v. The State (2012 SCMR 577) and Ikramullah v. The State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the Report of Government Analyst becomes doubtful and unreliable."
10. There is yet another aspect which has influenced us to draw an inference adverse to the case of prosecution. It is observed by us that the original report issued by the Punjab Forensic Science Agency, Lahore was not tendered in evidence and instead its attested copy (Exh.PJ) was placed on the record. It is pertinent to mention here 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, 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 the 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 above noted two provisions of law have empowered the courts 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 quality 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 the 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. We further observed that according to Article 75 of Qanun-e-Shahadat Order, 1984, a document is to be proved by primary evidence. Article 76 of the Order ibid 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. It emerges from clause (c) of Article 76 that secondary evidence in respect of a document can only be tendered if it is shown to have been destroyed or lost. Though in order to fill up the lacuna, the prosecution got examined Muhammad Mubasher, Section Supervisor Narcotic Units, Punjab Forensic Science Agency, Lahore (PW.7) as secondary witness to prove the contents of the Govt. Analyst Report, who during trial produced the attested photocopy of narcotic analysis report (Ex.PJ) as according to him the original report in this case was dispatched on 21-04-2014 which reportedly was not received by the concerned submitting agency as per the letter of DPO, Sahiwal, so, they had issued an attested copy of the original report according to the record of Punjab Forensic Science Agency, Lahore but what to say about the deposition of said witness who during his cross-examination admitted that neither the said report had been prepared by him nor the same was containing his signatures in any capacity as a scribe, witness or supervisor. He also candidly admitted that he did not conduct the analysis of the samples, therefore, he was unable to state the whereabouts of the sample parcels sent in his case. The said witness was neither author nor signatory of the report, which aspect has further leaned us to hold that the document Exh.PJ was not brought on record in accordance with law and as such the same cannot be considered in any manner. Reliance is placed upon 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).
11. The Control of Narcotic Substances Act, 1997 provides stringent penalty for the criminal who indulges in the business of narcotics and evidence of high standard is required to bring home charge against the accused to its hilt but such evidence is certainly lacking in this case, which makes the prosecution's case highly doubtful. When the prosecution witnesses are not in conformity with material important facts of the case as discussed above then it cannot be said that the prosecution has been able to prove the case against the appellants beyond shadow of any doubt. It is also settled law that 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 the same to the accused. Reliance in this regard is placed upon the case of Tariq Pervez v. The State (1995 SCMR 1345), Akhtar Ali and others v. The State (2008 SCMR 06) and Muhammad Zaman v. The State and others (2014 SCMR 749).
11(sic) As a result of what has been discussed above, we have come to the stalwart conclusion that the prosecution evidence is highly deficient and the conviction recorded by the learned trial court, in the circumstances, is not sustainable. We, thus, while allowing the appeal, set aside the judgment dated 21-01-2016 and acquit the appellants. Naeem Ahmad and Muhammad Akhtar from the charge against them. They are in jail and are ordered to be released forthwith, if not required to be detained in any other case. The case property i.e. charas shall be destroyed in accordance with law as observed by the learned trial court in the judgment impugned.