ABDULLAH BALOCH, J.--This judgment disposes of Criminal Appeal No,40/2019 filed by the appellant Abdul Wajid son of Abdul Ali, against the judgment dated 6th February 2019 (hereinafter referred as, "the impugned judgment") passed by learned Special Judge, CNS, Lasbella at Hub (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under Section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred as, "the CNS Act 1997") and sentenced to suffer R.I. for life with fine of Rs,100,000/- or in default thereof to further suffer six (06) months' S.I., with the benefit of Section 382-B, Cr.P.C., while co-accused Shams-ud-Din son of Syed Abdul Razzaq was acquitted of the charge.
2. Facts of the case are that on 19th March 2018, the complainant Shakeel Ahme d, Pakistan Coast Guards Uthal lodged FIR No,31 of 2018 at Police Station Coast Guard Uthal District Lasbella, under Section 9(c) of CNS Act, 1997, with the averments that on the day of occurrence at about 12.15 a.m. during course of checking of passenger at Naka Khadari Check Post of Pakistan Coast Guards Uthal a car bearing registration No,BEZ-922 driven by appellant Abdul Wajid son of Abdul Ali accompanied by acquitted accused Shams-ud-Din son of Syed Abdul Razzaq, was stopped for checking purposes and the search of the Car was resulted into recovery of 45.050 Kgs Charas consisting upon 37 packets. Hence, samples of 30/30-grams each were drawn from each packet and sealed in parcels.
3. After completion of investigation and on receipt of challan, the trial Court indica ted the charge to the appellant and the acquitted accused, who denied the same and during trial the prosecution examined three witnesses, whereafter the appellant was examined under Section 342 Cr.P.C. The appellant recorded his statement on oath under Section 340(2) Cr.P.C. and produced two witnesses in his defence namely DW-1 Haji Muhammad and DW-2 Faizullah, while the accused Shams-ud-Din neither recorded his statement on oath nor produced any witness in his defence. On conclusion of trial, the appellant was convicted and sentenced as mentioned above in Para No,1, while co-accused Shams-ud-Din was acquitted of the charge. Whereafter , the appellant has filed the instant appeal.
4. Heard the learned counsel for parties and perused the available record. Without adverting to the other material aspects of the case, it is necessary to mention here that the FSL report Ex.P/3-B is legally defective and not admissible under the law. Firstly , the recovery of contraband was effected on 19th March 2018 and the samples were drawn on the said date and sealed in parcels, thus the samples ought to have been received in FSL, within 72 hours of the seizure as required by Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, but perusal of Examination Report s Ex.P/3-B reflects that the same were received to FSL on 26th March 2018 i,e, on the eighth day of its recovery . The Investigating Officer has failed to tender any plausible explanation for delay in sending the samples for analysis. There is nothing on record establishing that during the intervening period in whose custody , the contraband was remained and question arises that whether the same were in safe custody or that the same were altered, manipulated, changed or replaced, thus the delay so occasioned in sending the samples to FSL has rendered the analysis report as doubtful.
5. The perusal of FSL report Ex.P/3-B further reflects that the samples were hande d over to one Yasir, LNK, for its onwards transmission to FSL for analys is. The name of the said person has neither cited in the calendar of witnesses nor he was produced in the trial Court in order to ascertain that when the samples were delivered to him for its onwards transmission to FSL and during the intervening period whether the same were in the safe custody and its transmission to FSL was safe, as such, the safe custody of the contraband in the Malkhana of the relevant Police Station or safe transmission of samples of the recovered contraband from the local Police Station to the office of the Chemical Examination had not been proved by the prosecution in this case. The Hon'ble Supreme Court has already held in the cases of State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ), Ikramullah and others v. the State (2015 SCMR 1002 ) and Amjad Ali v. the State (2012 SCMR 577) that in a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through any independent evidence, it cannot be presumed with any degree of confidence that the prosecution had succeeded in proving its case against the appellant beyond the shadow of reasonable doubt, as such, the safe custody and safe transmission of the contraband was not proved. Reliance in this regard is placed on the judgement dated 29th October , 2018 passed by Hon'ble Supreme Court in Criminal Appeal No,579 of 2017 titled as Siraj-ud-Din v. the State. For facilitation the relevant portion is reproduced hereunder: "According to the prosecution different types of narcotic substances had been recovered in this case which were contained in different packets stored in different sacks. The recovery witness namely Sepoy Zain-ul-Haq (PW2) and the investigating officer namely Inaya t Ullah Sheikh (PW-3) had stated before the trial court in so many words that they did not know how many packets were contained in every sack recovered in this case. The sacks allegedly recovered in this case were opened before the trial court during the trial and the trial court had found that the said sacks were not sealed. Safe custody of the recovered substances had not been proved in this case inasmuch as according to the prosecution the recovered substances were kept for safe custody in a warehouse but nobody from the said warehouse had been produced before the trial court in order to vouch for safe custody of the recovered substances. Even safe transmission of the samples of the recovered substances had not been proved in this case.
According to the report of the Forensic Science Laboratory the, samples had been brought to the Forensic Science Laboratory by one Sagheer Ahmed but no person by the name of Sagh eer Ahmed had been produced before the trial court so as to confirm that the samples had remained in his custody quite safe while transmitting the said samples to the Forensic Science Laboratory , As if this were not enough, the protocols of the tests applied on the samples of the recovered substances had not been mentioned in the report of the Forensic Science Laboratory brought on the record of the trial court."
6. Similarly , the FSL report Ex.P/3-B issued by the FSL is in violation of Section 36 of the CNS Act, 1997 and Rules 5 and 6 of the Control of Narcotic Substances (Government Analyst) Rules 2001 ("Rules"), as the same bears only one signature of the Federal Government Analyst, while Section 36 of the Act and the Rules 5 and 6 of the Rules of 2001 prescribes Form-II, which stipulates the signatures of two authorized officers of the Laboratory . The report is silent about the necessary protocols, the test applied and the result. Neither any protocol mentioned in the report nor any test was referred to on the basis whereof the Chemical Expert has conc luded that the samples sent for examination contained Charas and Crystal. While holding this view we are fortifie d from the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case titled as Khair-ul-Bashar v. the State (2019 SCMR 930), wherein it was held as under:-- "10. In the present case examination of the report of the Government Analyst mentions the tests applied but does not provide their results except a concluding result, presumably of all the tests, which is not sufficient. The Report also does not signify the test protocols that were applied to carry out these tests. Hence, the mandatory requirement of law provided under Rule 6 has not been complied with and, thus, it is not safe to rely on the Report of the Government Analyst dated 18-02-2016 . As a conclusion, it is reiterated, that the Report of the Government Analyst must mention (i) all the tests and analysis of the alleged drug (ii) the result of the each test(s) carried out along with the consolidated result and (iii) the name of all the protocols applied to carry out these tests.
7. Admittedly , all the ingredients, guideline s and, directions given by the Hon'ble Supreme Court with regard to safe custody of the recovered contraband and its safe transmission from the Police Station to the office of Forensic Science Laboratory as well as the procedure so adopted by the Examiners for carrying out the analysis are missing and it appears that initially from the date of the recovery of the contraband till its examination by the Examiner the prescribed procedure and method has been violated. It is well settled proposition of law that when a specific method is provided for doing any legal act in a specified procedure, thus such act is required to be done in that manner , deviation from such procedure would amount to violating the law. Reliance in this regard is placed on the case of Muhammad Yousaf v. The State 2017 MLD 1471 (Balochsitan), which provides that, "The burden on prosecution to prove its case cannot be shifted to the accused in artificial manner when the law contemplates and provides a procedure for doing any act. When such procedure is not complied with, it amounts to violate the law ."
8. For the above reasons, the appeal is allowed and the impugned judgment dated 6th February 2019 passed by learned Special Judge, CNS, Lasbella at Hub is set aside. While, extending benefit of doubt the appellant Abdul Wajid son of Abdul Ali is acquitted of the charge. The appellant being in custody is ordered to be released forthwith, if not required in any other case.
Above are the reasons of our short order dated 19th June, 2019.