ALI ZIA BAJWA, J. Aziz Khan son of Sher Khan, caste Pathan, resident of Masnoor Colony near Complex Hospital, Abbotabad (hereinafter "the appellant") along with Mst. Zubaida (co-accused since acquitted), was booked in case FIR No.26/2019, dated 21.01.2019, offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter "CNSA, 1997"), registered with Police Station Rajoa, District Chiniot. He was tried by learned Sessions Judge notified as Judge Special Court constituted under CNSA, 1997, Chiniot (hereinafter "the trial court"), under the afore- mentioned offence. Learned trial court, vide judgment dated 31.05.2019 (hereinafter "the impugned judgment"), convicted and sentenced the appellant in the following terms:- Under section 9(c) of the CNSA, 1997, sentenced to undergo rigorous imprisonment for twelve years and six months with fine of Rs.1,00,000/- and in case of default in payment thereof, to further undergo simple imprisonment for one year. Benefit of section 382-B, Cr.P.C. was also extended in his favour.
Through this appeal filed under Section 48 of the CNSA, 1997, vires of the impugned judgment has been called into question.
2. The prosecution theory of the case in brief, as portrayed in the crime report (Exh.PD/1) lodged on the written complaint (Exh.PD) of Aftab Afzal T/SI (PW-1), is that on 21.01.2019, on receipt of spy information, he along with Saif Ullah 867/C (PW-2) and other police officials, within the area of Bridge Rajbah Chak No.131/JB, intercepted car bearing registration No.FDT/57 driven by the appellant while co-accused (since acquitted) was sitting on the front seat. After making disclosure the appellant got recovered four packets of charas (1) 2800 grams, (2) 2300 grams, (3) 2700 grams and (4) 2400 grams, total weighing 10-KGs and 200-grams. Out of the recovered four packets of contraband charas, the complainant extracted 140 grams, 115 grams, 135 grams and 120 grams respectively and made into separate sealed parcels for forensic analysis. The remaining bulk quantity (P-1 to P-4) was taken into possession vide recovery memo Exh.PA. He drafted the complaint and dispatched it to the police station through Naseer Ahmed constable No.61 on the basis of which formal FIR was chalked out by Javed Iqbal 382/HC Moharrar/PW-3. Thereafter investigation was entrusted to Sarfraz Khan, S.I. (PW-4), who reached the place of occurrence where he was handed over the sample parcels, case property and custody of the appellant. He prepared rough site plan of the place of occurrence (Exh.PE). On reaching the police station, Investigating Officer handed over the case property and sample parcels to Moharrar (PW-3) for safe custody and onward transmission to the quarters concerned. He also recorded the statements of the prosecution witnesses under section 161, Cr.P.C. During the course of investigation, having found the appellant involved in the crime in question, Investigating Officer got prepared report under section 173, Cr.P.C. while placing his name in column No.3 and submitted it before the learned trial court through the concerned prosecutor.
3. After submission of the report under section 173, Cr.P.C, learned trial court formally indicted the appellant, vide order dated 25.03.2019, to which he pleaded not guilty and claimed trial.
Prosecution, in order to establish its case against the appellant, produced as many as four (4) prosecution witnesses. After completion of the prosecution evidence, statement of the appellant, as provided under section 342, Cr.P.C., was recorded by the learned trial court. He professed his innocence and pleaded false implication in the case. Upon completion of the trial, the learned trial court having found the case against the appellant to have been proved to the hilt, convicted and sentenced him as mentioned and detailed above. However, Mst. Zubaida (co-accused) was acquitted of the charge.
4. Arguments heard, record perused.
5. The gist of the arguments advanced by the learned counsel for the appellant is that though samples extracted from the recovered narcotic substance were dispatched to the Punjab Forensic Science Agency (PFSA), however, requisite report was not exhibited during the course of trial, therefore, it cannot be read in evidence against the appellant.
6. In order to evaluate the contention of the learned counsel for the appellant we have minutely scrutinized the evidence available on the record. Perusal of the record available on the file reflects that on 22.01.2019, Moharrar/PW-3 handed over sample parcels to the complainant (PW-1) for its submission to the office of PFSA, which were deposited there on 23.01.2019. Report of PFSA, in this regard, was prepared on 15.02.2019. Though the same has been annexed with the record of the trial court, however, it was not exhibited during the course of trial. While going through the record we have come across the statement of Pervaiz Iqbal, DDPP dated 17.05.2019 made before the court without oath wherein it is incorporated that report of PFSA was tendered in evidence purportedly as Exh.PF. However, original report of PFSA, available with the record of the trial court, reflects that it was never exhibited.
7. A document can only be exhibited when it is relevant and admissible in evidence. Prior to exhibiting a document, question of its admissibility must be decided by the trial court. Exhibit is a noun, which is earmarked for a document to be produced in evidence and given nomenclature by using alphabets or numbers for identification. In Black's Law Dictionary Eighth Edition, term 'exhibit' has been defined as infra:- "A document, record, or other tangible object formally introduced as evidence in court."
Similarly in Chambers English Dictionary, word 'exhibit' has been defined as under:- "a document or object produced in court to be used as evidence."
In Rakhaldas[1] it was observed that 'exhibit means a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of the proceeding in which it is filed.'
8. In the Rules and Orders of the Lahore High Court, Lahore, the modus operandi for exhibiting a document and its significance, relating to cases triable by the Sessions Courts, has been provided in Rule 14-H, Part B, Chapter 24, Volume III. The same has been reproduced hereinafter for ease of reference:- "14-H. Exhibits.---All exhibits should be marked with a letter or numbers. Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such articles is referred to and should be distinctly marked as "admitted or not admitted". If the exhibits have already been assigned numbers by the police, that series of numbers should be mentioned to avoid confusion.
A printed label should be affixed or attached to each exhibit containing the following particulars:-
(i) Number of exhibit
(ii) Produced by
(iii) Admitted (Signature of Court)
(iv) Date
(v) Case
(vi) Description of exhibits.
The Sessions Judge, should see that these entries are properly made.
Aforementioned Rule provides a self-explanatory procedure for exhibiting a document to be read in evidence, which has been blatantly overlooked in the instant case by the learned trial court. The learned trial court is under the bounden duty to see that the aforementioned Rule has been followed in its true letter and spirit. Where a document consists of more than one page, every page should be labelled and duly signed by the learned trial court as envisaged under the aforementioned Rule. In the instant case, undeniably, the report of PFSA could not be exhibited during the course of trial, therefore, the same cannot be taken into consideration to maintain conviction of the appellant. In the aforementioned circumstances, when no report of PFSA could be exhibited during the course of trial to be read in evidence, recovery of entire narcotic substance allegedly recovered from the appellant becomes inconsequential, thus, prosecution case falls to ground.
9. It is golden principle of criminal law that a single circumstance creating reasonable doubt would be sufficient to smash the veracity of prosecution case and enough to extend the benefit of doubt in favour of the accused, not as a matter of grace or concession but as of right.[2]
10. In the circumstances discussed above, this Court is fully convinced that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. Therefore, Criminal Appeal No.39152/2019 is allowed, as a consequence whereof the conviction and sentence recorded by the learned trial court are set aside and while extending the benefit of doubt, the appellant is acquitted, of the charge. He is directed to be released forthwith if not required, to be detained, in any other criminal case.
Appeal allowed.
1. Rakhaldas Pramanick v. Sm. Shantilata Ghose and others - AIR 1956 Cal. 619
2. Qaisarullah and others v. The State - 2009 SCMR 579