ABDUL HAMEED BALOCH, J.---This judgment disposes of Criminal Jail Appeal No. 07 of 2019 filed by the appellant Abdul Qudoos son of Syed Muhammad against the judgment dated 10th April 2019, (hereinafter referred as, "the impugned judgment ") passed by learned Special Judge CNS, Dalbandin (hereinafter referred as, "the trial Court "), whereby the appellant was convicted under Section 9(c) of CNS Act 1997 and sentenced to suffer R.I. for life with fine of Rs.100,000/- (Rupees One Lac) and in default thereof to further suffer S.I. for six months, with the benefit of Section 382-B, Cr .P.C.
2. Facts of the case are that on 20th September 2018 the complainant Abid Hussain SI/SHO, registered FIR No.19/2018 under Section 9(c) Control of Narcotic Substances Act, 1997 (hereinafter referred to "CNS Act, 1997 "), stating therein that on information, raid was conducted at the house of accused/appellant at Faisal Colony Dalbandin. The appellant was present at home during the raid and on search 38 Packets of Charas were recovered.
3. In pursuance of above FIR, Investigating Officer prepared site map, he took into possession the recovered charas and separated sample for Chemical Analysis, recorded the statements of witnesses under Section 161, Cr.P.C., sent the samples for analysis to Forensic Science Laboratory and on completion of Investigation, while on receipt of FSL, report the same was submitted before the trial Court through complete Challan.
4. At trial the prosecution produced as many as three witnesses, whereafter the appellant was examined under Section 342, Cr.P.C. The appellant also opted to record his statement on oath under Section 340(2), Cr.P.C., and also produced one witness in his defence. On conclusion of trial, the appellant was convicted and sentenced as mentioned above.
5. Learned counsel for the pauper appellant, contended that the allegedly recovery has not been effected from personal possession; that the prosecution has failed to substantiate the ownership of the house from which the alleged recovery was effected; that the samples were sent to FSL for analysis after delay of 35 days without plausible explanation; that the prosecution has badly failed to prove the charge against the appellant, but the trial court has not considered the same; that the appellant is innocent and liable to be acquitted of the charge.
6. Conversely , the learned Additional Prosecutor General while supporting the impugned judgement and opposing the arguments so advanced by the learned counsel for the pauper appellant, contended that the prosecution through trustworthy evidence has proved the charge against the appellant and appellant has failed to point out any ill will or ulterior motives for his false implication in the instant case. Lastly , he prayed for dismissal of appeal.
7. We have heard the learned counsel for the parties, perused the record. Record reveals that the prosecution has failed to establish the charge against the appellant through trustworthy and reliable evidence. According to prosecution the alleged recovery of contraband was effected from the house; PWs in their depositions have admitted the fact that besides the appellant other persons were resideing in the said house, but there is nothing on record showing that the house from which recovery was effected owned or possession by the appellant. No query was either made from the neighbour or from the revenue authority . The prosecution has failed to produce any single document showing that the appellant was the owner or in possession of house in question. Thus, the prosecution has failed to prove the ownership or occupation of the appellant in respect of house from which the contraband was allegedly recovered. Furthermore, recovery of contraband from the house cannot ipso facto be proof of guilt of accused unless conscious possession and ownership of accused is proved through confidence inspiring evidence which is lacking. The prosecution has failed to prove that the accused was in possession and control of the house.
8. The contraband material was sent for chemical examination after delay of 35 days. This inordincate delay has caused serious doubt in the prosecution's case and raised questions about safe custody of sample as well as safe transmission to libratory . In this regard, guidance can be sought from the case of "Abdul Ghani v. The State" 2019 SCMR 608 . Relevant portion from the latter case law is being reproduced:- " ...There is hardly any occasion for discu ssing the merits of the case against the appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this case. Nisar Ahmed, S.I./SHO complainant (PW1) had stated before the trial court that he had deposited the recovered substance at the Malkhana of the local Police Station but admittedly the Moharrir of the said Police Station had not been produced before the trial court to depose about safe custody of the recovered substance. It is also not denied that Ali Sher, H. C. who had delivered the samples of the recovere d substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance..."
It has been held by the Hon'ble Supreme Court that when safe custody and safe transmission of contraband is not established, the report of FSL, becomes doubtful and unreliable.
9. The report of Laboratory also do not contain full protocols of the test applied for. The report of FSL being voidable of mandatory Rule 6 of the Control of Narcotic Substances (Governm ent Analysts) Rules, 2001, is inconclusive and unreliable: Reliance in this regard is placed on the case of The State v. Imam Bakhsh 2018 SCMR 2039 , wherein it has been held as follow;- "15. Rule 6 on the other hand stands on a different statutory footing. It provides that the Report of the Government Analyst, after the test and analysis, is to furnish the result together with full protocols of the test applied. The accuracy of test and analysis and the correct application of the full protocols alone can determine if the recovered substance is a narcotic drug or a psychotropic or controlled substance. "Protocol" means an explicit, detailed plan of an experiment, procedure or test or a precise step-by-step description of a test, including the listing of all necessary reagents and all criteria and procedures for the evaluation of the test data. Rule 6 requires that full protocols of the test applied be part of the Report of the Government Analyst. Every test has its protocols, which are internationally recognized and a test without the observance of its protocols has no sanctity . "Full Protocols" include a description of each and every step employed by the Government Analyst through the course of conducting a test. Hence, the Report under Rule 6 must specify every test applied for the determination of the seized substances with the full protocols adopted to conduct such tests.
16. Non-compliance of Rule 6 can frustrate the purpose and object of the Act, i.e. control of production, processing and trafficking of narcotic drugs and psychotropic substances, as conviction cannot be sustained on a Report that is inconclusive or unreliable. The eviden tiary assumption attached to a Report of the Government Analyst under section 36(2) of the Act underlines the statutory significance of the Report; therefore details of the test and analysis in the shape of the protocols applied for the test become fundamental and go to the root of the statutory scheme.
Rule 6 is, therefore, in the public interest and safeguards the rights of the parties. Any Report (Form-1 1) failing to give details of the full protocols of the test applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary assumption attached to a Report of the Government Analyst under section 36(2).
Resultantly , it will hopelessly fail to support conviction of the accused. This Court has already emphasized the importance of protocols in lkramullah's case (supra).
20. We conclude that Rule 5 of the Rules is directory while Rule 6 is mandatory to the extent that the full protocols ought to be mentioned in the Report of the Government Analyst. Non-complianc e of Rule 6, in this context; will render the Report of the Government Analyst inconclusive and unreliable. The representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics T esting Laboratory ."
10. All the above infirmities in the case of prosecution has raised serious doubt. On reappraisal of the evidence available on record it is concluded that the prosecution has failed to prove the charge against the appellant beyond doubt.
For the above reasons, the appeal is accepted and the impugned judgment dated 10th April 2019 passed by the learned Special Judge Control of Narcoti cs Substance, Dalbandin is set aside. While extending benefit of doubt, the appellant Abdul Qudoos son of Syed Muhammad is acquitted of the charge under Section 9(c) of CNS Act, 1997 in FIR No.19/2018 Police Station Dalbandin. The appellant being in custody , is ordered to be released forthwith, if not required in any other case.