Ali Zia Bajwa, J. Through this single judgment, we intend to decide Crl. Appeal No. 188-J/2017 titled `Shakeel Ahmad & another vs. The State' filed by Shakeel Ahmed and Ghulam Mubeen appellants, against their conviction and sentences as well as Capital Sentence Reference No. 02-N/2017 titled 'The State vs. Shakeel Ahmad & another' forwarded by the trial Court for confirmation or otherwise of death sentences awarded to the convicts, as these are arising out of one and the same judgment dated 18.02.2017 (hereinafter 'the impugned judgment'), passed by Sessions Judge/Judge Special Court constituted under the Control of Narcotic Substances Act, 1997 (hereinafter 'CNSA, 1997'), Mianwali (hereinafter the trial Court').
2. Shakeel Ahmed son of Karam Elahi, caste Satti, resident of House No. 2/5-A, Street No. 31, Sector G-7/2, Islamabad and Ghulam Mubeen son of Muhammad Nawaz, caste Awan, resident of House No. 58/55, Mohallah Nauroz Abad, New Abadi, Tench Bhata, District Rawalpindi (hereinafter the appellants) were implicated in case F.I.R. No. 03/2013, dated 23.03.2013, offences under Sections 9(c) & 15 of the CNSA, registered with Police Station ANF, Mianwali. They were tried by the trial Court under the afore-mentioned offences. The trial Court, vide the impugned judgment, convicted and sentenced the appellants as under:- Under Section 9(c) of CNSA, 1997, sentenced to death with direction to pay fine of Rs. 1,00,000/- each, and in case of default in payment thereof, to undergo simple imprisonment for one year each.
3. The prosecution story as given in the FIR has been reproduced hereinafter:-
4. After completion of the investigation, report under Section 173, Cr.P.C. was prepared and submitted before the trial Court. The prosecution in order to establish its case produced three (03) prosecution witnesses. After the prosecution evidence, statements of the appellants as envisaged under Section 342, Cr.P.C. were recorded by the trial Court wherein they pleaded their innocence and refuted all the allegations leveled against them in the prosecution evidence. Upon completion of the trial, the trial Court, having found the case against the appellants to have been proved beyond shadow of reasonable doubt, convicted and sentenced them as mentioned and detailed above.
5. We have heard the arguments advanced by learned counsel for both sides and perused the record available on file.
6. The crux of the arguments advanced by the learned counsel for the appellants is that Asad Iqbal ASI/Moharrar was not produced during the course of trial without plausible justification that he had shifted to a place from where he couldn't be located while the forensic report available on the record does not meet the required criterion.
7. In order to evaluate the contention of the learned counsel for the appellants we have minutely scrutinized the evidence available on the record. According to the prosecution version, on reaching the police station Aftab Ahmed Inspector (PW-3)/complainant handed over the sample parcels and the case property to Assad Iqbal ASI/Moharrar and said witness further handed over the sample parcels to Syed Mudassir Hussain constable (PW-1) for onward transmission to the forensic lab. Hence, testimony of Assad Iqbal ASI/Moharrar was crucial to prove chain of safe custody of the sample parcels to the forensic lab. However, he was not produced during the course of trial as a witness. Except above oral assertion that Assad Iqbal ASI/Moharrar went 'underground' there is absolutely no evidence that the said witness was not traceable. In the instant case the appellants were saddled with an offence for which maximum punishment provided under the statute is death sentence, therefore, the prosecution was under bounden duty, to leave no stone unturned, to trace out the Moharrar to establish safe chain of custody. Moreover, prior to filing application for adducing secondary evidence, the prosecution was under obligatory duty to produce the process- server as a witness and record his, statement to establish that Assad Iqbal ASI/Moharrar was not traceable. There is no cavil to the proposition that in case of unavoidable and compelling circumstances, the prosecution is granted an opportunity to produce secondary evidence, however, it is obligatory to first establish through cogent evidence that either whereabouts of the witness are not traceable or he is not in a position to make statement on oath. The ratio behind this scheme of law is that certain questions of pivotal importance can be put to the original prosecution witness, which are deemed irrelevant when secondary evidence is produced.
Moreover, being exception to the general rule of evidence, for just decision of the cases, secondary evidence can be led to cater a genuine need. But at the same time the prosecution cannot be permitted to disregard the mandatory requirements contained in law of evidence. Without bringing on record persuasive evidence, the prosecution cannot be given unbridled authority to deviate from the general principle of producing best evidence.
8. While dealing similar proposition of law the Supreme Court of Pakistan in a celebrated judgment handed down in the case of Sajjad Ahmad and another vs. The State -- 1992 SCMR 408 ruled as infra:- "In our view, the reasons given by the learned trial Judge for non-production of Dr. Ahmad Ishaque are not sufficient to meet the legal requirements of this case. Indeed, it was a serious legal flaw in the case of the prosecution which was apparent on the very face of record. Law requires that a summon should have been issued to Dr. Ahmad Ishaque for his appearance before the Court. The evidence of the process-server should have been recorded to show that Dr. Ahmad Ishaque had gone abroad and as such was not available to depose evidence. This legal procedure was not adopted by the learned trial Judge in that behalf Accordingly, we proceed to exclude the evidence of Amjad Ali, PW-3 from consideration."
Similar view was held by Supreme Court in Sardar Bibi & others vs. Munir Ahmed etc. -- PLJ 2017 SC 249 as under: "The investigation officer, who initially investigated this case was Tariq Mehmood Ghani, but he was not produced by the prosecution as prosecution had claimed that the said witnesses had gone abroad. Although, secondary evidence has been produced to the extent of said I.O. but prosecution did not establish, by producing the constable, who made report that the said witness had gone abroad. Due to said reason, defence was deprived of valuable right to cross-examine the said I.O. through whom all the facts and circumstances favoring the accused could have been brought on the record."
9. Keeping in view the afore-stated facts and circumstances, as the prosecution has not produced any cogent proof qua the non-availability of Assad Iqbal ASI/Moharrar, the secondary evidence advanced through the statement of Nusrat Ali constable (PW-2) to the extent of evidence of said Moharrar, is excluded from consideration.
10. As far as the legal veracity of the forensic report exhibited on the record as Exh.PR is concerned, its careful examination reflects that on the front page no protocols have been mentioned. Though on the back side some stamps have been affixed qua the details of the chemical tests applied, however, that very page has neither been exhibited in consonance with the Rules and Orders of the Lahore High Court, Lahore nor does it carry the signature of the presiding officer to bring it within the parameters of an exhibited document. 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. Where a document consists of more than one page, every page should be labelled and duly signed by the trial Court as envisaged under the aforementioned Rule. In the instant case, undeniably, the second page of the forensic report was not exhibited during the course of trial in accordance with the requisite criteria, therefore, the same cannot be taken into consideration to maintain conviction of the appellants.
Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 makes it imperative on an analyst to mention result of sample analyzed with full protocols applied thereon along with other details in the report issued for test/analysis by the Laboratory. The same has been reproduced as under for ready reference: "6. Report of result of test or analysis.--After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II."
Reliance in this regard can be placed on the celebrated verdicts of the Supreme Court of Pakistan in "The State through Regional Director ANF vs. Imam Bakhsh and others 2018 SCMR 2039" and "Khair-ul-Bashar vs. The State 2019 SCMR 930".
In the aforementioned circumstances, when the page of the forensic report on which stamps reflecting chemical tests applied and the protocols observed could not be exhibited during the course of trial, such report is of no avail to the prosecution case. Thus, the recovery of entire narcotic substance allegedly recovered from the appellants becomes inconsequential as a result whereof the prosecution case falls to ground.
11. It is golden principle of criminal law that a single circumstance creating reasonable doubt would be sufficient to smash the veracity of the 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. Reference can Be made to Qaisarullah and others vs. The State -- 2009 SCMR 579.
12. For what has been discussed above. This Court is fully convinced that the prosecution case is pregnant with major discrepancies going to the roots of the case, therefore, Crl. Appeal No. 188- J/2017 is allowed as a consequence whereof the conviction and sentences recorded by the trial Court are set-aside and while extending the benefit of doubt, the appellants are acquitted of the charges. They are directed to be released forthwith if not required in any other case.
13. Capital Sentence Reference No. 2-N/2017 forwarded by the learned trial Court is answered in the negative. Death Sentences awarded to the convicts are not confirmed.