Tariq Saleem Sheikh, J.--This appeal under Section 48 of the Control of Narcotic Substances AA, 1997 (the 'Act"), is directed against judgment dated 2.12.2015 passed by -the learned Additional Sessions Judge, Jatoi, in case FIR No. 294/2015 dated 22.6.2015 registered at Police Station Jatoi, District Muzaf farga rh, for an offence under Section 9(c) of the Act.
2. Brief facts of the case are that on 22.6.2015 at about 12:10 p.m. Complainant Abdul Hameed/SI (PW-3) along with other police officials was patrolling at Al-W ahab Petrol Pump Mochiwala Road when he received a source infoimation that the Appellant, allegedly a drug peddler , was selling narcotics near her under-construction house.
He tasked Ubaidullah 1871/C (PW-5) to purchase charas from her posing as a customer and gave him a marked 1000-rupee currency note for that purpose. Ubaidullah 1871/C brought him 30 grams charas out of which the Complainant drew 10 grams, prepared a sample sealed parcel for chemical analysis, secured the remainder P-1 in a separate sealed parcel and seized both of them vide Recovery/Memo Exh.PB. Thereafter , he along with Sumaira Khalid 43/LC X. (PW-4) conducted raid. The Appellant took to her heels on seeing them but was chased and apprehended. During her personal search by the lady constable, a cloth bag containing 1100 grams charas, weighing scale with bots, cash amount to Rs. 1370/- (including tainted currency note of Rs. 1000/-) was recovered.
The Complainant drew 50 grams out of the recovered substance and prepared a sample sealed parcel for chemical analysis, secured the residue P-2 along with the money P-3, weighing scale P-4 and bots P-5, in a distinct sealed parcel and seized them vide Recovery Memo Exh.PC. During interrogation the Appellant disclosed that she had a stash of charas in her house and then led the police party to the recovery of 1200 grams charas. Out of the recovered substance, the Complainant separated 50 grams, prepared a sample sealed parcel, secured the remaining bulk P-6 into a separate sealed parcel and took both of them into possession, vide Recovery Memo Exh.PD. After that he drafted complaint Exh.PE and sent it to the police station through Muhammad Aslam 428/C on the basis of which Javed Iqbal/ASI (PW -1) registered FIR No. 294/2015Exh.P A.
3. After due investigation report under Section 173, Cr.P.C. was prepared and submitted to the Court. On 3.9.2015, the learned Additional Sessions Judge indicted the Appellant who pleaded not guilty and claimed trial. In order to prove its case the prosecution produced eight witnesses, namely , Javed Iqbal/A SI (PW-1), Muhammad Ashraf 2137/C (PW-2), Compla'inant. Abdul Hameed/SI (PW-3), Sumaira Khalid 43/LC (PW-4), Ubaidullah 1871/C (PW-5), Abdul Aziz 409/HC (PW-6), Ghulam Shabbir Shah/ASI (PW-7) and Hafiz Muhammad Kashif, Analyst/Laboratory Technician (PW-8). In documentary evidence, the prosecution inter alia adduced attested copy of report of the Punjab Forensic Science Laboratory Exh.PG.
4. After the completion of prosecution evidence the learned trial Court recorded the statement of the Appellant under Section 342, Cr.P.C. She denied the allegations and professed innocence. She maintained that nothing was recovered from her and the Investigating Officer had framed her in this false case in order to show efficiency . She neither made statement on oath under Section 340(2), Cr .P.C. nor examined any witness in her defence.
5. On the conclusion of trial, vide judgme nt dated 2.12.2015, the learned trial Court convicted the Appellant under Section 9(c) of the Act and sentenced her to rigorous imprisonment for five years and six months with fine of Rs.
25,000/- and in default thereof to undergo simple imprisonment for a further period of five months and 15 days.
Benefit of Section 382-B, Cr .P.C. was, however , extended to him. Hence, this appeal.
6. The learned counsel for the Appellant contended that the case against the Appellant was false and concocted.
The prosecution witnesses were untrustworthy because they contradicted each other on material points. He further contended that the Narcotics Analysis Report Exh.PG could not be used against the Appellant because it was not proved in accordance with law. He prayed that this appeal be accepted and the Appellant may be acquitted of the charge.
7. On the other hand, the learned Additional Prosecutor General opposed this appeal and controverted the above contentions. He argued that the Appellant was caught red-handed with 2330 grams charas which was proved by Abdul Hameed/SI (PW-3), Sumaira Khalid 43/LC (PW-4), Ubaidullah 1871/HC (PW-5), and Ghulam Shabbir Shah/ASI (PW-7) who were corroborated by the Narcotics Analysis Report Exh.PG. He maintained that the prosecution evidence was coherent and the Appellant could not create any dent in it. He prayed for dismissal of this appeal.
8. Arguments heard. Record perused.
9. The prosecution case is that on 22.6. 2015 at about 12:10 p.m. the Appellant was apprehended from Mauza Mochiwala within the remit of Police Station Jatoi, District Muzaf fargarh, and 2330 grams charas was recovered from her. Abdul Hameed/SI (PW-3), Sumaira Khalid 43/LC (PW-4), Ubaidullah 1871/HC (PW-5), and Ghulam Shabir Shah/ASI (PW-7) testified about the factum of recovery . It is, however , important to point out that in order to bring home guilt to an accused the prosecution is required to produce. a credible chemical analysis report. In the instant case, it has failed to do SO.
10. Under Section 36 of the Act read with Section 510, Cr.P.C. the Narcotics Analysis Report is admissible in evidence per se and is a conclusive proof of the facts stated therein. However , photocopy of the report cannot be equated with the original. In this respect reference may be made to Ghayour Abbas v. The State (2018 YLR 2494 ) with considerable advantage. In the instant case, the original of report Exh.PG was not available so- the prosecution led secondary evidence to prove it.
11. Article 76 of the Qanun-e-Shahadat, 1984, sets out the circumstances in which secondary evidence relating to a document may be given. In the present case clause (c) is relevant which reads as under: "When the original has been destroyed or lost, or when the party Offering evidenc e of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time."
12. A bare perusal of the above provision shows that before producing secondary evidence in respect of a lost document the party C concerned is obligated to categorically prove the loss of the original. In Mst. Khurshid Begum and 6 others v. Chiragh Muhammad (1995 SCMR 1237 ), the Hon'ble Supreme Court explained that "if the loss is not proved secondary evidence would become valueless".
13. Perusal of the record shows that in the instant case the prosecution did not lead any evidence to prove that the original Narcotics Analysis Report had been lost. As such, the secondary evidence was not admissible. However , the matter does not end here. The secondary evidence produced does not conform to the requirements of Article 74 of the Qanun-e-Shahadat, 1984, which states:
74. Secondary evidence. Secondary evidence means and includes:
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) 'oral account of the contents of a document given by some person who has himself seen it.
14. Hafiz Muhammad Kashif, Analyst/Laboratory Technician Junior Forensic Scientist, PFSA (PW-8), deposed that the original report was despatched to the Police Station Jatoi through courier service on 21.8.2015. Thereafter , District Police Officer, Muzaf fargarh, vide Letter No. 834-5A dated 18.10.2015, requested for provision of an attested copy of the report which was despatched to the police-station on 19.10.2015 duly verified by Section Supervisor Narcotice bearing Diary No. 100 dated 19.10.2015. According to him, the attested copy of Narcotics Analysis Report No. PFSA2015-NAR 12520 was (Exh.PG) and it was a true copy of the original.
15. In view of the foregoing, the evidence furnished by PW Hafiz Muhammad Kashif cannot qualify as secondary evidence and the report Exh.PG cannot be read against the Appellant. Reliance is placed on The State v. Nisar Ahmad Khoro and others ( PLD 1998 Karachi 86 ).
16. In view of the foregoing, the conviction and sentence handed down to the Appellant by the learned trial Court cannot be stained. Hence, we allow this appeal, set aside impugned judgment dated 2.12.2015 and acquit the.
Appellant of the charge. She is on bail as her sentence was suspended by this Court vide order dated 6.6.2017 passed in Crl. Misc. No 1/2016. Her surety stands discharged.