MUHAMMAD AMJAD RAFIQ, J.---Through this appeal under section 48 of the Control of Narcotic Substances Act, 1997 (CNSA, 1997), the appellant (Tahir Naqash ) has challenged the judgment dated 15.11.2019, passed by learned trial court in case FIR No. 76 dated 28.06.2019 registered at Police Station Chikrala, District Mianwali, whereby he was convicted and sentenced for an of fence under section 9(c) of the CNSA, 1997, as under: Imprisonment for life with fine of Rs.300,000/- and in default thereof to undergo simple imprisonment for a further period of one year and six months; benefit of section 382-B, Cr .P.C. was also extended to them.
2. Facts germane elicit the prosecution stance which recall the presence of police contingent headed by Kazim Hussain/SI PW-02 on 28.06.2019 at 06:10 a.m. at Fakharabad Check Post for prevention of crime when they stopped a Bus bearing Registration No.LES-8877 came from Rawalpindi; appellant was lined up for having a bag in his lap; on search, 16 packets of heroin were found in it; each packet weighing one kilogram (total 16 Kilograms heroin). Kazim Hussain/SI PW-03 separated 50-grams as samples of heroin from each packet, sealed it into 16 parcels; remaining case property was also sealed in 16 Parcels (P-1 to P-16) with a monogram of AK; bag P-17, one card P-18, one service card of WAPDA P-19, one grey color suit P-20, CNIC of the appellant P-21, driving license P-22, cash amount, two mobile phones P-23 and P-24 were also taken into possession. All the recovered 16 sealed parcels of heroin were taken into possession vide recovery Memo Exh. PB whereas the remaining articles were also taken into possession vide Recovery Memo. Exh. PC.
3. Arguments heard. Record perused.
4. Prosecution has proved the recovery of contrabands through the testimony of three witnesses, Kazim Hussain PW-2, Taaz Ullah/ASI PW-5 being recovery witnesses and Tahir Tariq alias Tahir Sadiq 2660/C PW-7 the witness who took the complaint to police station for registration of FIR. This witness stated that after registration of FIR, he returned back to place of recovery with a copy of FIR along with Abdul Karim SI PW-3/Investigating Officer; therefore, presence of IO at the place of occurrence was also proved and defence could not challenge the testimony of this witness.
5. Prime duty of prosecution in the cases of narcotics paddlers is to prove the recovery of case property and its transmission through safe hands from very inception to concerned quarters for chemical analysis and production before the court. The chain of safe custody should not have any loopholes during the process and a positive corresponding report of Narcotics Testing Laboratory , following the compliance of Rule 6 of the Narcotic Substances (Government Analysis) Rules, 2001 is sine qua non to establish the guilt of accused. In the present case defence has challenged such chain with a frail argument that Abdul Karim/SI PW-03 received samples from Safi Ullah, 463/HC/ Muharrar PW-06 on 02.07.2019 as reflected from the entry in Register No. 19 but Safi 463/HC/ Muharrar in his statement as PW-6 and Abdul Karim SI as PW-3 stated about handing over and taking over the parcels on 04.07.2019 which is a dent in safe custody because Abdul Karim/SI PW-03 did not explain in what circumstance he retained the case property for two days. Be that as it may, defence has, not put a single suggestion or ask any question about this alleged missing link or dent. Trial court in para 14 of the judgment has well met the objection and explained with reasoning that it has no impact on prosecution case and we are agreed to it.
6. Defence has challenged the monogram AK on the sealed parcels and asserted that contrabands were recovered by Kazim Hussain/SI PW-02 while seal on the parcels was embossed that of Abdul Karim/SI PW-03; the argument is not of worth appreciation when Abdul Karim/SI PW-03 is working in same police station and also reached at the spot. Other attack of defence that the name of Kazim Hussain/SI PW-02 is mentioned in Register No. 19 as the person who deposited the case property to Safi Ullah, 463/HC/Muharrar PW-06, Defence further stated that even date of handing over the case property to Safi Ullah, 463/HC/ Muharrar PW-06 is not mentioned in relevant column of Register No. 19. It is claim of defence that if it is true the safe custody of case property is not proved. Defence, while putting questions to Safi Ullah/463/H C/ Muharrir PW-6 has get confirmation only of what is written in Register No. 19 and did not question the wrong entries, nor Safi Ullah, 463/HC/Muharrar PW-06 was asked that the entries were in his hand writing;
7. Status of register No. 19 in the circumstance needs some clarification; examination of such register shows that name of police station and district is not mentioned in the page brought on record as Exh. DC. If this document has been summoned by the court than court should look into its relevancy and admissibility first and then allow the defence to prove it through primary evidence as mentioned in Article 161 of Qanun-e-Shahadat Order , 1984.
Though public documents are proved through certified copies yet they should be in the form as required under Article 87 of Qanun-e-Shahadat Order , 1984. Any person when applying for such document can face question of any privilege claimed on it. It is the court which would decide whether claimed privilege sustains or not. For reference Article 161 of Qanun-e-Shahadat Order , 1984 is reproduced as under;
161. Judge's power to put questions or order production : The Judge may in order to discover or to obtain proper proof of relevant facts, ask any question he places, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order , nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the Judgment must be based upon facts declared by this Order to be relevant, and duly proved: Provided also that this Article shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Articles 4 to 14, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the judge asks any question which it would be improper for any other person to ask under Article 143 or 144: nor shall he dispense with primary evidence of any document, except in the cases hereinhefore excepted.
(Underline supplied for emphasize)
8. Police usually claim privilege against unpublished official record for its production before the court as mentioned in Rule 27.24 of Police Rules, 1934, wherein cettain documents are under absolute privilege though other not, yet police can also claim privilege on it; therefore, it is the court which after summoning and examining the document without showing it to the parties would decide whether it is privileged document or not; if court declares it as not privileged, then would ask the party to prove the document through primary evidence with any exception as highlighted in Article 161 of Qanun-e-Sh ahadat Order , 1984 and not in any other manner . In the present case, register No. 19 was not duly proved; therefore, any page/part of register bringing on record without formal proof would amount to improper admission of evidence. It is trite of law that if such practice is allowed to continue then every junior ranked police official while bringing on record any register while claiming it as genuine, real and true without the knowledge of senior officers in the hierarchy of police station or the department can thwart the sanctuary of prosecution case; therefore, we reject the part of evidence brought on record in the form of Exh. DC as being not certified through the process of law .
9. We are of the considered view that the prosecution has succeeded in proving the charge beyond reasonable of doubt against the appellant for having in possession of 16 kilograms Heroin (P-1 to P16). Resultantly , this appeal being devoid of any merit is dismissed and the conviction and sentence awarded to the appellant by the learned trial court vide impugned judgment dated 15.1 1.2019 are upheld.