PLJ 2023 Cr.C. (Note) 245
[Lahore High Court, Multan Bench]
Present: Sardar Muhammad Sarfraz Dogar and Muhammad Tariq Nadeem, JJ.
versus
STATE etc.--Respondents
Crl. Appeal No. 616 of 2017, heard on 07.04.2022.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
---S. 9-C--Safe custody and safe transmission--Photocopy of original report of PFSA--Acquittal of--appellant was apprehended, having a white colour sack in his right hand containing 10-KG Bhang--whole testimony of I.O. / PW and PW-1 is silent that on which date and time, he handed over the two sealed parcels to PW-3--Prosecution has failed to establish the safe custody of the sample parcel to the police station and its safe transmission to the office of PFSA--Chain of custody of the case property as well as the sample separated should remain unbroken--Original report of PFSA is not available in the entire record--Prosecution evidence is highly doubtful, conviction is set aside and appellant is acquitted.
[Para 2, 7, 8 & 9] A, B, C, D, E, F, G & H
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9-C--Safe custody and safe transmission--Chain of custody of the case property as well as the sample separated should remain unbroken, unsuspicious, indubitable, safe and secure and any break in the chain of custody or lapse in the control of possession of the sample, will cast doubt on the safe custody and safe transmission of the sample and will impair and vitiate the conclusiveness and reliability of the report of the government analyst. [Para 7] C
Ref. 2021 SCMR 363; 2020 SCMR 687; 2018 SCMR 2039; 2015 SCMR 1002; 2012 SCMR 577.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9-C--S. 510 of CrPC--Attested photocopy of the PFSA report--When the original report of PFSA is not available then the court has ample power u/s 510 of CrPC to summon and examine the person by whom such report has been made. [Para 8] E
Ref. 2017 SCMR 172; 2018 YLR 2494; 2005 PCrLJ 726.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9-C--S. 510 of CrPC--Analyst Report--PFSA--Original report not available--Attested photocopy of the PFSA report--Photocopy of the original report could not be exhibited.
[Para 8] F
Ref. 2005 PCrLJ 726.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9-C--Benefit of Doubt--A single circumstance creating reasonable suspicion would be sufficient to cast doubt about the veracity of prosecution case. [Para 8] G
Ref. 2020 SCMR 857; 2018 SCMR 1425.
Khawaja Qaiser Butt, Advocate for Appellant.
Mehr Muhammad Ali Shahab, DPG for State.
Date of hearing: 07.04.2022.
Judgment
Muhammad Tariq Nadeem, J.--This appeal is directed against the judgment dated 21-04-2017, passed by the learned Additional Sessions Judge/Special Judge, Control of Narcotic Substances Act, 1997, Mailsi, District Vehari, whereby, in case F.I.R No. 264 dated 25-06-2015, registered at Police Station Karam Pur, under Section 9(c). of the Control of Narcotic Substances Act, 1997 and at the conclusion of the trial in the said case, the learned trial court convicted Allah Din, appellant and sentenced him as under:-
Under Section 9(c) of the Control of Narcotic Substances Act, 1997. 10 years R.I. with fine of Rs.15,000/- and in default of payment thereof the appellant was to further undergo S.I. for 07 months and 15 days.
The benefit of Section 382-B, Cr.P.C. was also extended to the convicts.
2. Succinctly, the facts of the case as narrated in the FIR (Ex.PB) are that on 25-06-2015 the contingents of Police Station Karam Pur, on spy information, apprehended the appellant having a white colour sack in his right hand containing 10 Kilograms Bhang. Out of the recovered contraband, 1 Kilograms was separated for chemical analysis. Hence, the above-mentioned FIR.
3. After formal investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was prepared and submitted before the learned trial Court. The appellant was sent to face the trial, after delivering the copies of the documents in terms of Section 265-C of the Code of Criminal Procedure, 1898 the learned trial Court framed the charge against the appellant to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as 05 PWs. Ghulam Abbas 931 /HC (PW. I) chalked out the formal FIR (Ex.PB) and being moharrar kept the sealed parcels in safe custody of malkhana of the police station. Muhammad Amin 94/C (PW.2) was the recovery witness of the contraband besides he also received one sealed parcel of sample said to contain Bhang from Muhammad Ejaz 1299/HC (PW.3) for its onward transmission to the office of chemical analysis. Muhammad Ejaz 1299/C (PW.3) being moharrar malkhana received one sealed parcel from Ghulam Abbas 931/HC (PW.1) and handed over the same to Muhammad Amin 94/C (PW.2) for depositing the same in the office of Punjab Forensic Science Agency, Lahore intact. Alam Sher S.I (PW.4) was the investigating officer of the case whereas Shehzad Ahmad, S.I (PW.5) was the complainant of the case. Doctor Abdul Qayyum Khan, Addl. Principal Medical Officer, on the application of appellant was examined as CW.1.
The prosecution gave up Qasim Nawaz 1327/C, Khuda Bakhsh 679/C, Abdul Ghaffar 223/C, Nasar Ullah, ASI and Muhammad Siddique, ASI, PWs being unnecessary and after tendering in evidence report of Punjab Forensic Science Agency, Lahore (Ex.PE), closed its evidence.
4. The learned Additional Sessions Judge/Special Judge, Control of Narcotic Substances Act, 1997, Mailsi, District Vehari after recording the statement of the appellant under section 342 Cr.P.C. and hearing the arguments, passed the impugned judgment, whereby, the appellant was convicted and sentenced as mentioned and detailed above.
5. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy Prosecutor General and have minutely perused the record available on the file.
6. A detail of the prosecution case as set forth in FIR (Ex.PB) has already been given in para No.2 of this judgment, therefore, there is no need to repeat the same.
7. After careful-scrutiny of the material available on record, we have come to the conclusion that the prosecution has failed to establish the safe custody of the sample parcels to the police station and its safely transmission to the office of Punjab Forensic Science Agency, Lahore. According to Shahzad Ahmad, S.I, complainant (PW.5) after the recovery of contraband from the appellant, he prepared complaint (Ex.PA) and sent the same through Ghulam Mustafa 46/C-2 to the police station for registration of the case. He handed over all the sealed parcels to Alam Sher, S.I (PW.4).
Alam Sher, S.I/investigating Officer (PW.4) during his examination-in-chief though stated that he reached at the place of occurrence and interrogated Shahzad Ahmad, S.I, complainant (PW.5), Muhammad Amin 94/C (PW.2) , Qasim Nawaz 1327//C, where Shahzad Ahmad, S.I (PW.5) handed over to him two sealed parcels, however, during his cross examination he destructively stated as under:-
"...I handed over the sample to the moharrar..."
Even during his cross examination he stated that he did not cite the name of Muhammad Ejaz 1299/HC.
Now come to the evidence of Muhammad Ejaz 1299/C (PW.3), who during his Court statement narrated that on 12-07-2015, he was posted at Police Station; Karampur as Moharrar, on the same day, Ghulam Abbas 931/HC (PW.1) handed over to him one sealed parcel said to contain Bhang weighing 01 kilogram for onward transmission to the office of Punjab Forensic Sciedce Agency, Lahore. He (PW.3) further stated that he handed over the said parcel to Muhammad Amin 94/C (PW.2) for depositing the same to the office of chemical examination.
Contrary to above, Ghulam Abbas 931/HC (PW.1) during his examination-in-chief stated as under:--
“...On the same day, Alam Sher, S.I also handed over to me two sealed parcels said to contain Bhang regarding case property, which I kept in safe custody in Maal Khana police station..."
We have noted that whole testimony of Alam Sher, S.I/Investigating Officer (PW.4) is silent in this regard. Even, the whole testimony of Ghulam Abbas 931/HC (PW.1) is silent that on which date and time he handed over the two sealed parcels to Muhammad Ejaz 1299/HC (PW.3).)
After perusal of evidence on record it is doubtful that sealed parcels were the same which were kept in Malkhana and sample subsequently sent to the office of PFSA. We find that the prosecution has failed to establish the safe custody of the sample parcel to the police station and its safely transmission to the office of Punjab Forensic Science Agency, Lahore. It is trite that the prosecution is obliged to establish that the chain of custody of the case property as well as the sample separated therefrom should remain unbroken, unsuspicious, indubitable, safe and secure and any break in the chain of custody or lapse in the control of possession of the sample, will cast doubt on the safe custody and safe transmission of the sample and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst but in the instant case, the safe transmission of the parcel said to contain "Bhang" becomes doubtful. Reliance is placed on the case laws titled as "The State through Regional Director ANF Vs. Imam Bakhsh and others" (2018 SCMR 2039), “Amjad Ali Vs. The State” (2012 SCMR 577), “Ikramullah Vs. The State” (2015 SCMR 1002), “Haji Nawaz vs. The State” (2020 SCMR 687) and “Qaiser, Khan vs. The State” (2021 SCMR 363).
8. There is another aspect of the case which cannot go unnoticed that the original report of Punjab Forensic Science Agency, Lahore is not available in the entire record and the prosecution has relied on attested photocopy of the report of PFSA, Lahore (Ex.PE), which was attested by some person even without affixing stamp showing his designation by writing the word “Attested to be true copy”. It is observed that though report of chemical examiner is admissible without calling the author of the same as a witness but when the original report is not available then the Court has ample power u/s 510 Cr.P.C., in the interest of justice, to summon and examine the person by whom such report has been made but the case in hand no such effort has been made by the trial court. Even otherwise, during trial the said report was got exhibited by learned Additional District Public Prosecutor as (Ex.PE). As the original report is not on the record and photocopy of the same could not be exhibited therefore, it is not clear that what was actually exhibited and which report was put to the accused. As stringent sentences are provided in narcotic cases, therefore, for the purpose of conviction of an accued, high standard evidence is required. In this case, we hae found as observed earlier that the prosecution has failed to bring on record the original report of PFSA through which the prosecution had to confirm that the alleged recovered material from the appellant was a contraband for seeking conviction and sentence of the appellant. For our above view, we also seek support from the case titled case "Muhammad Siddique alias Bheria vs. 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.”
Similarly view was reiterated in the case “Ghayour Abbas versus The State” (2018 Y L R 2494) wherein it is observed that:-
"However, the report of the concerned quarter available on file as Exh.PE reflects that it is neither original report nor it is true/certified copy of the reportrather it is a duplicate copy, which was issued on 13.01.2017 i.e. four years after the occurrence. Moreover, it does not carry signature of the Bio-Chemist or Chemical Examiner and only signatures of one Additional Medical Superintendent (Admn), Benazir Bhutto Hospital, Rawalpindi, are affixed on it and underneath his stamp it is mentioned ex-Chemical Examiner. No doubt the report of Chemical Examiner is to be brought on record in terms of Section 510, Cr.P.C. and that could be without summoning its author, however, admittedly it should be in original form and in case its original is not available, then on the basis of very cogent reasons then its certified copy should be presented for consideration by the learned trial court. However, perusal of Exh.PE reflects that neither it is original report nor it qualifies to be a certified/true copy, hence, it cannot be read in evidence against the appellant to connect him with the case. Moreover, there is no provision of law to deviate from the requisite mode of proof of a document. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in Province of Punjab case reported as 2017 SCMR 172; wherein following principle was laid down:—
"--Chap. V [Arts. 72 to 101]---Documents brought on record---Mode of proof--- Provisions governing the mode of proof could not be compounded or dispensed with, nor could the Court, which had to pronounce a judgment, as to the proof or otherwise of the document be precluded to see whether the documents had been proved in accordance with law and could, as such, form basis of a judgment." When facts of the case in hand are examined on the touchstone of the case law referred to above, we have been persuaded to hold that the report of Chemical Examiner (Exh.PE) in this case is neither a legal document nor it carries any sanction of law, hence the same being vague/invalid document could not be read against the appellant. Therefore, the learned trial court was not justified in recording conviction against the appellant on the basis of such a indistinct document."
In view of abovesaid infirmities in the case of the prosecution against the appellant the benefit of doubt has to be extended to him. The aforementioned witnesses produced by the prosecution cannot be said to be trustworthy and confidence inspiring witnesses as their deposition is not worthy of reliance and as such their evidence cannot be taken into consideration for the purpose of conviction. Moreover, it is by now well settled that single circumstance creating reasonable suspicion would be sufficient to cast doubt about the veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right. Reliance is placed upon the following case laws titled as "Abdul Basit Vs. The State and others" (2018 SCMR 1425) and "Muhammad Imran Vs. The State" (2020 SCMR 857).
9. For what has been discussed above, we are of the view 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 21-04-2017 and acquit the appellant Allah Din from the charge against him. He is in jail; he be released forthwith if not required in any other case. The case property i.e. Bhang shall be destroyed in accordance with law, as observed by the learned trial court, in the impugned judgment.
(M.A.B.) Appeal allowed
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