2018 PLP 2494 (YLR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Ghayour Abbas son of Muhammad Azmal, caste Bhatti, resident of Jourian, Tehsil and District Rawalpindi, appellant was involved in case FIR No.42/2014, dated 25.01.2014, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Saddar Beroni, Rawalpindi. He was tried by learned Additional Sessions Judge, Rawalpindi under the afore-mentioned offence. The learned trial court seized with the matter vide judgment dated 29.03.2017 convicted and sentenced the appellant in the following terms:--  Under Section 9(c) of the Control of Narcotic Substances Act, 1997, sentenced to undergo R.I. for four years and six months with fine of Rs.20,000/- and in case of default in payment thereof to further undergo S.I. for five months.  Benefit of Section 382-B, Cr. P. C. was also extended in favour of the appellant." Being aggrieved of the judgment of the learned trial court, the appellant has assailed his conviction and sentence by way of filing the instant appeal.

2. The prosecution story as portrayed in the FIR (Exh. PA/1) lodged on the complaint (Exh.PC) of Safdar Hussain, S.I. (PW-3) is that on 25.01.2014 at about 6:15 p.m. the complainant along with Ahmed Yar, ASI, Gulfam Shamshad 5207/HC, Arshad Azeem 3554/C, Inam Ali 6612/C, Faheem Khan 6707/C and Adeel Ahmed Khan ASI was present at Chakari Road in connection with search of vagabonds. Informer passed on spy information that accused Ghayour Abbas son of Muhammad Azmal, caste Bhatti, resident of Jourian, Tehsil and District Rawalpindi was present at Jourian Stop and selling narcotics and if raid is conducted, he could be apprehended. On receipt of information, the complainant along with other police officials rushed towards Jourian Stop. At about 5: 30 p.m. the complainant saw a person standing at the spot, who had worn shawl over him. He was apprehended, who disclosed his whereabouts as stated above. On his personal search, a shopping bag containing contraband charas weighing 1200 grams (P-1) was recovered. Out of the recovered narcotic substance, 15 grams was separated for chemical analysis and made into sealed parcel. Both the parcels were taken into possession vide recovery memo Exh.PB. The complainant drafted complaint (Exh.PC) and transmitted it to Police Station for registration of formal FIR.

3. Thereafter the Investigating Officer prepared rough site plan of the place of recovery (Exh.PD). He also recorded statements of the prosecution witnesses under Section 161, Cr.P.C. On reaching Police Station, Investigating Officer handed over case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. During the course of investigation, having found the accused guilty, the Investigating Officer after placing his name in column No.3 of the report prepared under Section 173, Cr.P.C, sent the same to the court of competent jurisdiction.

4. On submission of challan, the learned trial court vide order dated 10.05.2014 charge sheeted the appellant to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as four (4) prosecution witnesses.

5. Safdar Hussain, S.I. (PW-3) is the complainant, as well as, Investigating Officer of the case while Adeel Khan, ASI (PW-4) is the other witness of recovery. On receipt of complaint, Farhat Saghir, S.I. (PW-1) had chalked out formal FIR. Hakim Ali, ASI (PW-2) while posted as Moharrar had transmitted case property to the office of Chemical Examiner.

6. Vide his statement recorded on 19.11.2016, learned ADPP gave up Ahmed Yar, ASI, PW, being unnecessary. On 18.02.2017, learned ADPP tendered in evidence report of Chemical Examiner (Exh.PE) and closed the prosecution evidence.

7. The appellant was examined under Section 342, Cr.P.C.; wherein he opted to lead defence evidence, however, he opted not to appear as his own witness as provided under Section 340(2), Cr.P.C. to disprove the allegations levelled against him in the prosecution evidence. In reply to the questions why this case against him and why the PWs deposed against him, appellant made the following deposition:-- "Incorrect. That a false case/FIR was registered against me on the instigation of local influential persons due to religious rivalry. I belong to Shia sect. In Moharram Jaloos I used to fully participate and some local influential persons of local Abadi involved me in this criminal case with the connivance of local police. I am innocent. I am a government employee in post office and no single FIR was registered against me. Jourian Stop (place of recovery) is a rural area/Dihati Abadi. I am voter member of that area and still living there since my birth. That the site plan is fake one. Police arrested me from my house and recovery was planted one. The site plan was shown by local police is a distance of 20 to 25 paces from my house. At that site plan no Abadi and no market was existed and no private witness associated in the recovery proceedings. I.O. Safdar Hussain admitted in his cross-examination that I was standing alone at the place of recovery. No person sold any contraband in his local area where he lived from his birth. That FIR was registered on 25.01.2014 and report of chemical examiner Exh.PE was submitted in court on 14 January 2017. All the PWs are police officials, who deposed against me on the instigation of local influential persons due to religious rivalry." In defence the appellant tendered copies of Pakistan Post Office Saving Pay A/c (Exh.DA), registered sale deed (Exh.DB), copy of domicile (Exh.DC) and closed his defence evidence.

8. After hearing the arguments advanced by learned counsel appearing on behalf of both sides, the learned trial court, while evaluating the evidence available on record, found version of the prosecution proved beyond shadow of doubt, which resulted into conviction of the appellant in the above terms.

9. Learned counsel for the appellant while opening his arguments submitted that impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to real facts of the case and material available on record. Learned counsel vehemently argued that case against the appellant is false and baseless. Further submitted that recovery has been planted upon him. It was argued that the prosecution witnesses of recovery made contradictory statements, which shatters its credence. The main crux of arguments advanced by learned counsel for the appellant is that the report of Chemical Examiner available on record as Exh.PE does not carry legal sanctity. While elaborating his argument learned counsel contended that neither it is original report nor true/certified copy of the original document and even does not contain signature of the person who prepared it, therefore, its having been issued after about four years, the same does not carry any sanction of law, hence conviction cannot be based while relying upon such a report. In the end learned counsel prayed for clean acquittal of the appellant from the charges.

10. On the other hand learned Deputy District Public Prosecutor vehemently opposed the contentions advanced by learned counsel for the appellant. It was argued that the appellant is duly named in the crime report and according to prosecution version, when he was arrested; 1210 grams contraband charas was recovered from his possession. Next contended that prosecution witnesses of recovery fully supported the case on salient features and despite lengthy cross-examination nothing adverse to the prosecution version could be brought on record. Argued that there was no previous ill-will of the police officials with the appellant to falsely involve him in the instant case without any rhyme or reason. Learned Law Officer contended that during the course of investigation the appellant was found guilty as such his name was placed in column No.3 of the report prepared under Section 173, Cr.P.C. It was argued that the prosecution established its case through cogent/confidence inspiring evidence, therefore, learned trial court rightly convicted the appellant under the relevant provisions of law and no exception can be made to the judgment of the learned trial court. When confronted learned Deputy District Public Prosecutor frankly conceded that report of Chemical Examiner (Exh.PE) is neither original nor a true copy and even it does not carry the signatures of its scribe.

11. We have given our anxious consideration to the arguments advanced by learned counsel for the appellant, as well as, learned DDPP and gone through the record with their able assistance.

12. According to prosecution version on 25.01.2014 on receipt of spy information police party comprising Safdar Hussain, S.I. (PW-3)/complainant and other police officials conducted raid at Jourian Stop and apprehended the appellant. At that time the appellant was allegedly in possession of contraband charas weighing 1210 grams. The record available on file further reflects that out of the recovered narcotic substance 15 grams charas was separated for chemical analysis. According to statement made by Hakim Ali, ASI (PW-2), who was posted as Moharrar at the relevant time, the sample was deposited with the office of Chemical Examiner on 29.01.2014. 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 report rather 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.

13. For the foregoing reasons, we have been persuaded to old that prosecution lacks incriminating evidence available on record to connect the appellant with the offence alleged, hence, the conviction and sentence recorded by the learned trial court is not sustainable in the eyes of law. Resultantly, we allow Crl. Appeal No.302/2017 filed by the appellant as a consequence whereof conviction and sentence recorded in the judgment dated 29.03.2017 is set aside. The appellant is acquitted of the charge in case FIR No.42/2014, dated 25.01.2014, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Police Station Saddar Beroni, Rawalpindi and he is directed to be released forthwith if not required in any other case. JK/G-3/L Appeal allowed.