PLJ 2013 Cr.C.
(Lahore) 572 (DB)
[Rawalpindi Bench Rawalpindi]
[Rawalpindi Bench Rawalpindi]
Present: Ijaz Ahmad and Ali Baqar Najafi, JJ.
WAHEED
KHAN--Appellant
versus
STATE--Respondent
Crl. Appeal No. 62
of 2012, decided on 2.5.2013.
Control of
Narcotic Substances Act, 1997 XXV of 1997)--
----S.
9(C)--Criminal Procedure Code, (V of 1898), S. 510--Conviction and
sentence--Challenge to--Accused deals in business of charas
and herion--Report of chemical examination was an
unsigned document--Report of the Chemical Examiner has proved that samples sent
were detected as Charas and heroin and all the
analysis were in the positive as the: report of the Chemical Examiner does not
bear the signature of the Chemical Examiner, who conducted the examination on
its attested copy. Probably, the original copy of the record was lost and
hence, another unsigned copy attested by his successor was produced in the
Court, which is not admissible in evidence u/s 510, Cr.P.C.--Even
otherwise, under Section 510, Cr.P.C. evidence of the
Chemical Examiner has been dispensed with but with the condition that the
document must be proved in accordance with the said requirement of law. Any
document purported to be a report under the hand of any Chemical Examiner upon
any matter submitted to him for examination or analysis may be used as evidence
without calling him as a witness. However, the Court may in his discretion
summon and examine such person by whom such report has been made but surely the
report must bear the signature of the Chemical Examiner--Conviction, on this
ground lone, is not sustainable as the recovery of the narcotic substance was
not proved against the appellant in accordance with law--Appeal allowed. [Pp. 574 & 575] A, B & C
PLD
1977 Karachi
1019, ref.
Sh. Ahsan-ud-Din, Advocate for
Appellant.
Mr. Muhammad Yousaf, DDPP for Respondent.
Date of hearing:
2.5.2013.
Judgment
Ali Baqar Najafi, J.--The appellant,
was convicted under Section 9(c) of the Control of Narcotic Substances Act,
1997 in case FIR No. 30 registered at Police Station Sadar,
Attock for an offence u/S. 9(c) of the Act ibid by
the learned Additional Sessions Judge, Attock and was
sentenced to rigorous imprisonment for three years and to pay a fine of Rs.
30,000/- and in default of payment thereof to undergo simple imprisonment for
two months. He was also extended the benefit of Section 382-B, Cr.P.C.
2. Briefly the facts giving rise to the present
appeal are that Abdur Rashid, SI lodged complaint
(Exh.PA) stating therein that Iftikhar Malik Inspector/SHO received information through his
private sources that accused Waheed Khan deals in
business of Charas and heroin. On this information,
the SHO obtained search warrant from the Court of learned Judicial Magistrate
and marked the same to him for proceedings. Later on, he alongwith
other police officials remained on secret vigilance of the accused. On
19.4.2011, they received information that the accused has brought huge quantity
of Charas and heroin for sale purposes, on which he alongwith his companions at 7.00 a.m. conducted a raid at
the house of accused, who was found standing at the
main gate of his house holding shoppers in his hands. They apprehended him. On
search of one shopper, Charas weighing 1510 grams was
recovered, out of which ten grams was separated for sample purposes (Exh.P3).
On search of other shopper, a `Donga' of plastic was recovered. From inside the
said Donga, heroin weighing 1110 grams in the shape of `Purris'
was recovered, out of which ten grams (Exh.P2) was separated for sample purposes.
3. On further personal search of the accused, an
amount of
Rs. 600/- (Exh.P4) and I.D. Card (Exh.P5) were recovered. He recorded the statements of PWs u/S. 161, Cr.P.C., inspected the place of recovery and prepared unsealed site-plan (Exh.PE). He prepared complaint (Exh.PA) and sent the same to the police station for registration of the FIR. He handed over the case property to Moharrir and confined the accused in lock-up. On 19.4.2011, he produced the accused before the trial Court and obtained his physical remand for two days. On completion of investigation, he got the accused challaned to the Court for trial.
Rs. 600/- (Exh.P4) and I.D. Card (Exh.P5) were recovered. He recorded the statements of PWs u/S. 161, Cr.P.C., inspected the place of recovery and prepared unsealed site-plan (Exh.PE). He prepared complaint (Exh.PA) and sent the same to the police station for registration of the FIR. He handed over the case property to Moharrir and confined the accused in lock-up. On 19.4.2011, he produced the accused before the trial Court and obtained his physical remand for two days. On completion of investigation, he got the accused challaned to the Court for trial.
4. On receipt of Challan
against the appellant, charge was framed, to which he pleaded not guilty and
claimed a trial and in order to prove its case, the prosecution produced as
many as four witnesses who are all police officials. On completion of evidence,
statement of the appellant u/S. 342, Cr.P.C. was also
recorded, in which he has stated that he has been falsely involved in this
case. However, he opted not to make any statement under Section 340(2), Cr.P.C.
5. The main emphasis of the learned counsel for
the appellant was on non-fulfilment of the legal
requirement and producing the original report of the Chemical Examiner, which
was not exhibited and only an unsigned report with the word `duplicate' was
produced by the learned DDPP. Reliance is placed on the cases of Zahoorul Islam and two others v. The
State [1995 P.Cr.L.J. 484], Muhammad Siddique alias Bheria v. The State [2005 P.Cr.L.J. 726] and Gul v. The State [PLD 1977 Karachi 1019].
Lastly, submits that the appellant is behind the bars for the last about two
and a half years since his arrest on 9.2.2012.
6. Conversely, the learned DDPP opposes the
prayer on the ground that the trial Court has convicted the appellant on the
basis of sufficient evidence and rightly sentenced him; the report of the
Chemical Examiner was produced in duplicate, which duly fulfilled the
requirement of law.
7. We have heard the learned counsel for the parties
and perused the available record.
8. A perusal of the record reveals that the
report of the Chemical Examiner dated 26.4.2011 (Exh.
P/F) is an unsigned document, though attested by
biochemist, which was tended in the statement of DDPP, on 23.1.2012. No
reference of this exhibit was made by the investigating officer. The trial
Court has incorrectly observed that the report of the Chemical Examiner has
proved that samples sent were detected as Charas and
heroin and all the analysis were in the positive as the report of the Chemical
Examiner does not bear the signature of the Chemical Examiner, who conducted
the examination on its attested copy. Probably, the original copy of the record
was lost and hence, another unsigned copy attested by his successor was
produced in the Court, which is not admissible in
evidence u/S. 510, Cr.P.C. Reliance is placed upon
the judgment of a learned Division Bench of Karachi High Court reported as Gul v. The State [PLD 1977 Karachi 1019].
Even otherwise, under Section 510, Cr.P.C. evidence
of the Chemical Examiner has been dispensed with but with the condition that
the document must be proved in accordance with the said requirement of law. Any
document purported to be a report under the hand of any Chemical Examiner upon
any matter submitted to him for examination or analysis may be used as evidence
without calling him as a witness. However, the Court may in his discretion
summon and examine such person by whom such report has been made but surely the
report must bear the signature of the Chemical Examiner.
9. The conviction, on this ground lone, is not
sustainable as the recovery of the narcotic substance was not proved against
the appellant in accordance with law.
10. For what has been discussed above, we hereby
allow this appeal, set aside the conviction: of the appellant recorded by the
learned trial Court and acquit him of the charge. He shall be released from the
jail forthwith, if not required in any other case.
(A.S.) Appeal allowed
