PLJ 2023 Cr.C. (Note) 95
[Lahore High Court, Multan Bench]
Present:
Muhammad Waheed Khan and Ali Zia Bajwa,
JJ.
MUHAMMAD
IFTIKHAR RAFIQUE--Appellant
versus
STATE
and another--Respondents
Crl. A.
No. 1548 of 2019, heard on 29.11.2021.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Recovery of
charas--Duplicate copy of Forensic Report--Inadmissible in evidence--It is
cardinal principle of natural justice that case Trying harder sentence must be
proved through strict proofs in order out possibility of any error--Held: It is golden principle of
criminal law that a single circumstance creating reasonable doubt would be
sufficient to smash veracity of prosecution case and benefit of said doubt has
to be extended in favour of accused not as a matter of grace or concession but
as a matter of right. [Para 7
& 8] B & C
PLD 2012 SC 380 &
2009 SCMR 579.
Duplicate Forensic Report--
----Duplicate copy of forensic report-Inadmissible in
evidence--Duplicate forensic report was inadmissible in evidence--Relevant
extract out of same is reproduced as under:
“Appalling inaptitude
of functionaries tasked to prosecute crime, awfully heinous in nature, has
occasioned failure to establish a most vital link to drive home 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 Apex Court of
country then what to speak of authenticity of a photocopy thereof. [Para 6] A
M/s. Syed Muhammad Jaffar Tayyar Bukhari and Ch. Ihsan Ali
Gill, Advocates for Appellant.
Mr. Mohammad Ali Shohab, Deputy Prosecutor General for
State.
Date of hearing: 29.11.2021.
Judgment
Ali Zia Bajwa, J.--Muhammad
Iftikhar Rafique son of Muhammad Rafique, caste Rajput, resident of Chak
No-209/EB, Tehsil Arif Wala, District Pakpattan, appellant, through this appeal
filed under Section 48 of the Control of Narcotic Substances Act, 1997, has
assailed the vires of impugned judgment dated 30.11.2019, passed by learned
Additional Sessions Judge, Khanewal, by virtue of which while deciding case FIR
No. 348/2019, dated 21.07.2019, offence under Section 9(c) of the Control of
Narcotic Substances Act, 1997, registered with police Saddar Khanewal, the
appellant was convicted and sentenced as infra:-
Ø
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.
Ø
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.PE) lodged on the complaint (Exh.PD) of Muhammad Rashid Mehmood HC/10492
PHP (PW-3) is that on 21.07.2019 at 9:05 p.m. the complainant along with Waleed
Anwar 15008/C, Abid Maqbool 15108/C, Muhammad Shehbaz 10401/C, Muhammad Zaman
10815/C boarding on official vehicle bearing Registration No. LZR/2654 driven
by Phool Baig 10795/DC was present at Sukh Bias in connection with general hold
up. A Suzuki car Mehran Silver colour Model 2017 bearing Registration No.
LEC/8505 came from Nawan Chowk side which was intercepted and checked. The
driver told his name as Muhammad Iftikhar Rafique son of Muhammad Rafique,
caste Rajput, resident of Chak No. 209/EB, Post Office Chak No. 207/EB, Tehsil
Arif Wala, District Pakpattan. On his personal search a packet containing
charas weighing 1100 grams was recovered out of which 55 grams was separated
for forensic analysis. On further personal search of accused wattak amount of
Rs. 3,200/- and a mobile phone were also recovered.
After registration of the case investigation was entrusted to
Shakeel Akhtar, S.I. (PW-1) who along with other police officials reached the
place of recovery where he was handed over case property, car and mobile phone
along with accused. He inspected the spot, prepared rough site-plan (Exh.PA)
and 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.
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 26.10.2019 to which he pleaded not guilty
and claimed trial. In order to substantiate its version, prosecution produced
as many as five (5) prosecution witnesses.
Muhammad Rashid Mahmood HC/10492 (PW-3) is complainant of the case
while Qamar Zaman 10815-C/PHP (PW-2) and Walid Anwar 15008/C (PW-4) are other
witnesses of recovery. On presentation of complaint Muhammad Azhar 551/HC
(PW-5) had registered formal FIR while investigation was conducted by Shakeel
Akhtar, 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 neither opted to get recorded his statement under Section
340(2), Cr.P.C., nor did he produce any defence evidence. Upon completion of
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.PF, 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. PFSA2019-241490-NAR-67259
dated 02.10.2019 has been annexed with the record as Exh.PF 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 vs. 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 vs. 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. 1548/2019 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. He is directed to be
released forthwith if not required in any other criminal case.
(A.A.K.) Appeal
allowed