MUHAMMAD AAMIR Versus State

ALI ZIA BAJWA, J .---Through this criminal appeal filed from Jail under section 48 of the Control of Narcotic Substances Act, 1997, Muhammad Aamir son of Muhammad Anwar, caste Rajpoot, resident of Jamal Town Garrha-Morr, Tehsil Mailsi, District Vehari, appellant, has assailed the vires of impugned judgment dated 19.11.2020, passed by learned Additional Sessions Judge, Mailsi, by virtue of which while deciding case FIR No.960/2019, dated 22.12.2019, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered with police Mitroo Mailsi, he was convicted and sentenced as infra:-

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.

2. Precisely, prosecution story as portrayed in the FIR (Exh.PD) lodged on the complaint (Exh.PC) of Shehbaz Hussain, S.I. (PW-4) is that on 22.12.2019 the complainant along with Masood Sadiq, ASI, Muhammad Asif T-ASI, Sohail Iqbal 453/C and Muhammad Irfan 928/C boarding on official vehicle bearing registration No.VRH/9139 driven by Ghulam Ali 930/C was present at Adda Garrha-Morr in connection with patrol duty. Informer passed on spy information that notorious drug paddler namely Muhammad Aamir son of Muhammad Anwar, caste Rajpoot, resident of Jamal Town Garrha-Morr, Tehsil Mailsi, District Vehari was selling charas in his street and could be arrested along with charas. Considering this information reliable the police party reached the spot and on signal of the informer apprehended the accused who disclosed his name as detailed and mentioned above. At that time the accused was holding a white colour polythene bag containing charas weighing 1520 grams. Out of the recovered charas 76 grams was separated as a sample for forensic analysis. On personal search of the accused sale proceeds worth Rs.460/- (P-2/1-6) were also recovered, which were made into sealed parcel. The case property contraband charas (P-1) along with sale proceeds was secured vide recovery memo Exh.PB. The complainant drafted complaint and transmitted it to Police Station for registration of formal FIR.

After registration of the case investigation was entrusted to Imtiaz Ahmad, S.I. (PW-1) who along with other police officials reached the place of recovery. The complainant handed over to the Investigating Officer case property (P-1) along with sale proceeds worth Rs.460/- (P-2/1-6) and the accused. On reaching Police Station, Investigating Officer handed over case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. He also recorded statements of the prosecution witnesses under section 161, Cr.P.C.

3. Upon conclusion of investigation, report prepared under section 173, Cr.P.C. was submitted before the learned trial court and appellant was indicted vide order dated 01.02.2020 to which he pleaded not guilty and claimed trial. In order to substantiate its version, prosecution produced as many as five (5) prosecution witnesses.

Shehbaz Hussain, S.I. (PW-4) is complainant of the case while Masood Sadiq, ASI (PW-2) and Muhammad Irfan 928/C (PW-5) are other witnesses of recovery. Muhammad Iqbal 192/HC (PW-3) was posted as Moharrar at the relevant time. Investigation in this case was conducted by Imtiaz Ahmed, S.I. (PW-1).

4. 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. He didn't opt to get recorded his statement under section 340(2), Cr.P.C, however, he tendered copy of FIR No. 258/2019 as Mark-A in his defence. Upon completion of the trial, the learned trial court having found the case against the appellant to have been proved beyond any reasonable shadow of doubt, convicted and sentenced him as mentioned and detailed above.

5. Arguments heard, record perused.

6. The main crux of arguments advanced by learned counsel for the appellant was that during the course of trial copy of report of Punjab Forensic Science Agency (PFSA) was produced, which was though exhibited as Exh.PE, however, in view of latest law on the subject, the same couldn't be made basis for recording conviction.

In order to evaluate the contention of learned counsel for the appellant we have minutely scrutinized the evidence available on record and observed that copy of report of PFSA bearing No.PFSA2019-275145-NAR-75305 dated 27.01.2020 has been annexed with the record as Exh.PE whereas original report has not been brought/placed on record. While dealing with a similar issue in a recent judgment of august Supreme Court of Pakistan in Zubair Khan s case 1 it was categorically held that duplicate forensic report was inadmissible in evidence. Relevant extract out of the same is reproduced as under:-

"Appalling inaptitude of the functionaries tasked to prosecute the crime, awfully heinous in nature, has occasioned the failure to establish a most vital link to drive home the charge, irreversibly vitiated by a duplicate forensic report, inadmissible in evidence, leaving no juridical possibility to maintain petitioner's conviction."

Hence, when duplicate copy of a forensic report was declared to be inadmissible in evidence by the Apex Court of the country then what to speak of authenticity of a photocopy thereof.

7. It is cardinal principle of natural justice that the case carrying harder sentence must be proved through strict proofs in order to rule out the possibility of any error. Respectful reliance in this regard can be placed on the ratio decidendi of august Supreme Court of Pakistan in the case of "Ameer Zeb v. The State" (PLD 2012 Supreme Court 380) held that:-

"Punishments provided in the Control of Narcotic Substances Act, 1997 were quite stringent and long, if not harsh, and, thus, a special care had to be taken that a court trying such an offence had to be convinced that the entire quantity allegedly recovered from the accused person's possession was indeed narcotic substance. We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: the harsher the sentence the stricter the standard of proof .

8. Moreover, 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 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. Respectful reliance in this regard is placed upon the ratio decidendi of august Supreme Court of Pakistan in the case of Qaisarullah and others v. The State (2009 SCMR 579).

9. In the circumstances discussed above, this Court is fully convinced that the prosecution has failed to prove its case against the appellant beyond reasonable doubt, therefore, Crl. Appeal No. 559-J/2020 is allowed , as a consequence whereof the conviction and sentence recorded by the learned trial Court are set aside and while extending benefit of doubt the appellant is acquitted of the charge in case FIR No.960/2019, dated 22.12.2019, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered with police Mitroo Mailsi. He is directed to be released forthwith if not required in any other criminal case.

SA/M-250/L Appeal allowed.

1 2021 SCMR 492