SADIQ MAHMUD KHURRAM, J.The appellant namely Khalid Razzaq son of Gul Muhammad was tried by the learned Additional Sessions Judge, Multan, in case FIR No.35 of 2017 dated 23.01.2017 registered at Police Station Shah Shams, District Multan, in respect of an offence under section 9(c) of Control of Narcotic Substances Act, 1997. The learned trial court vide judgment dated 19.04.2018 convicted Khalid Razzaq son of Gul Muhammad (appellant) and sentenced him as infra:- Khalid Razzaq son of Gul Muhammad : Rigorous Imprisonment for six years and six months under section 9(c) of Control of Narcotic Substances Act, 1997 and directed to pay fine of Rs. 30000/-. In case of default of payment of fine the appellant was further directed to undergo simple imprisonment for six months.
The appellant was however , extended benefit available under Section 382 B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.)".
2. Feeling aggrieved, Khalid Razzaq son of Gul Muhammad (convict) has lodged Criminal appeal No. 450 of 2018, challenging the judgment dated 19.04.2018 passed by learned Additional Sessions Judge, Multan, whereby the appellant was convicted and sentenced for an offence punishable under Section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as "the Act") as mentioned above.
3. Precisely the facts necessary , as divulged in the statement of Ghulam Mustafa, SI (PW-5) are as under:- "On 23.01.2017, I was posted at Police Station Shah Shama, Multan. On the same day, I along with Zahid Pervaiz TASI, Naik Muhammad 120/HC, Sajid Farid 584/C, Aamir Jamil 2648/C, Aman Ullah 3956/C, Muhammad Rafique 885/HC and Hasnain Sarfraz 1962/C on official vehicle No.1148/MNG, driven by Noor Muhammad 863/C was on patrolling duty at Pul Thaheemanwali. In the meanwhile, I received a spy information that accused Khalid Razza, narcotic seller was selling Chars at Farid Canal View while walking there. On this information, raiding party was constituted and we reached the place of occurrence i.e. Farid Canal View and saw that a person, who was holding a blue coloured shopper in his hand, tried to flee away after seeing the police party , but he was apprehended with the help of other police officials. He disclosed his name as Khalid Razzaq S/o Gul Muhammad. On his personal search and shopper , Chars in the shape of Puries, which were 292 P1 in number and there were some ieces of Chars also. Besides this, Wattak amount of Rs.1550/- with the denomination of ten notes of Rs.10/- P2/1 10, each, eleven notes of Rs.50/- each P3/1-1 1, were recovered. The Chars was weighed, which was 3120 grams in toto.
The pieces of Chars were P4. I sealed the recovered Chars into parcel with the stamp of M.R. and also made parcel of sale proceed, which was taken into recovery vide recovery memo Ex.PA, attested by Naik Muhammad 120/HC and Zahid Pervaiz TASI. I drafted the complaint Ex.PD and sent the same to the police station through Hasnain Sarfraz 1962/C for registration of FIR and I remained at the place of occurrence. Thereafter, I handed over the accused and case property to Afzal Shah SI."
4. On the above stated facts FIR No.35 of 2017 (Exh. PB) dated 23.01.2017 was registered at Police Station Shah Shams, District Multan in respect of an of fence under section 9(c) of Control of Narcotic Substances Act, 1997
5. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant was sent to face trial. The learned trial court framed the charge against the appellant on 19.04.2017 under section 9(c) of the Control of Narcotic Substances Act, 1997.
The appellant pleaded not guilty and claimed trial.
6. In order to prove the facts the prosecution examined as many as five witnesses in total. Zahid Pervaiz,T/SI (PW- 2) and Ghulam Mustafa, SI (PW-5) , both narrated the facts leading to the recovery of "Charas " weighing 3120 grams and got recorded their detailed statements before the learned trial court. Muhammad Saleem, ASI (PW-3) recorded the formal FIR (Exh.PB) on receiving the complaint and on the same day the Investigating Officer handed over to him one sealed parcel said to contain "Charas " , and he on 02.02.2017 handed over one sealed parcel said to contain "Charas " to Fida Hussain, SI (PW-1) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Muhammad Afzal Shah, SI (PW-4) investigated the case from 23.01.2017 till 04.02.2017 and got recorded the details of investigation conducted by him in his statement before the learned trial court.
7. On 30.10.2017, the learned DDPP gave up PW HNaik Muhammad 120/H C being unnecessary and on 14.03.2018 closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency , Lahore (Exh.PE).
8. After closing of prosecution evidence the statement of appellant was recorded under section 342 of Code of Criminal Procedure, 1898 and the appellant pleaded his innocence and in reply to as to why the prosecution witnesses had deposed against him, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution being subordinates of Ghulam Mustafa, SI (PW-5). The appellant however opted not to appear in terms of section 340(2) of the Code of Criminal Procedure, 1898 and did not adduce any evidence in his defence.
9. After completion of evidence and hearing both the parties the learned trial court held the appellant guilty of offence and sentenced the appellant as referred to above.
10. Learned counsel for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant. Learned counsel further argued that there were glaring contradi ctions in the statements of the witnesses hitting at the very root of the prosecution case. Learned counsel also stated that nothing was recovered from the appellant. Learned counsel also argued that the report of Punjab Forensic Science Agency , Lahore (Exh.PE) was against the law and could not be read in evidence, being inadmissible.
11. On the other hand learned Deputy Prosecutor General appearing on behalf of the State submitted that the prosecution has proved the charge by producing admissible and relevant evidence. He further submitted that all the witnesses have corroborated each other . He requested that the appeal be dismissed.
12. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and perused the record.
13. At the very outset, we have noticed that Muhammad Saleem, ASI (PW-3) stated that on 23.01.2017, the Investigating Officer handed over to him one sealed parcel said to contain "Charas" , and he on 02.02.2017 handed over one sealed parcel said to contain "Charas" to Fida Hussain, SI (PW-1) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. It cannot be denied that although the prosecution case is that 292 packets of "Charas" were recovered at the instance of the appellant but only one sealed parcel was prepared with respect to the same. It is also the case of prosecution that only one sealed parcel was remitted to the office of the Punjab Forensic Science Agency, Lahore but no separate parcels were made so as to relate them with the packet of recovered contraband from which said sample had been drawn. The Punjab Forensic Science Agency, Lahore also after chemical analysis has submitted a consolidated report Ex.PE declaring the deposited parcel to be containing "Charas" instead of independent test details regarding the sealed packet containing as many as 292 packets of "Charas" as required by law. The evidentiary value of above report of Punjab Forensic Science Agency, Lahore (Exh. PE) has been evaluated by us in the light of Control of Narcotic Substances (Government Analysts) Rules, 2001. Rule 6 of the said Control of Narcotic Substances (Government Analysts)
Rules, 2001 makes it imperative on an analyst to separately mention result of each sample or each piece, if there is a single consolidated packet of contra banned, as in this case, analyzed with full protocols applied thereon alongwith other details in the Certificate issued for test/Analysis by Laboratory. It would be beneficial to reproduce Form-II incorporated in Schedule attached to the Rules which is as under: FORM II (See rule 6)
CERTIFICA TIONS OF TEST OR ANAL YSIS BY FEDERAL NARCOT IC TESTING LABORA TORY GOVERNMENT ANAL YST
1. Certified that the sample bearing on .........purporting to be sample of ...........received on.................. with memorandum No.............dated................from...........has been tested / analyzed and the result of each test/analysis is stated below: (Emphasis supplied by us)
2. The condition of the seal on the packet on receipt was as follows; Satisfactory/Unsatisfactory/None.
3. In the opinion of the undersigned the sample is ...............as defined in the Section 2 of the CNS Act, 1997.
4. DETAILS OF THE RESULTS OF TESTS/ANALYSIS: Sample No.........................................................
Gross Wt:......................... Net Wt:...................
F.I.R. No. ........................ Dated................... ...................
Accused............................................................ Physical Examination..........................................
CONCLUSION:...........................................
NOTE: In case of mixture the %age of each Alkaloids, Opium derivatives, Opiates, Cannabis, Drugs of abuse and the synthetic compounds are as follows: The sample identified as and contains % Signature of Government Analyst Federal Narcotics T esting Laboratory Signature of any other authorized officer of Laboratory."
We find that the report of the Punjab Forensic Science Agency , Lahore (Exh.PE) is not in line with the principles enunciated by the august Supreme Cour t of Pakistan in the case of "The STATE through Regional Director ANF Versus IMAM BAKHSH and others " (2018 SCMR 2039 ). It has been held in the said case "The STATE through Regional Director ANF Versus IMAM BAKHSH and others (supra ) as under:- "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-II) 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 Ikramullah's case (supra).
17. Rule 6 also requires the issuance of quadruplicate copies of the Report and the requirement of two signatures on the Report of the Government Analyst in Form-II. Section 36 states that the Report shall be signed by the Government Analyst only, therefore the requirement of two signatures and the issuance of quadruplicate copies, are at best, a good practice, but are merely directory provisions, as their non-compliance does not offend the Act. At this stage it is important to point out that this Court, in a series of judgments, has considered the scope of Rule 4(2) of the Rules, which provides that the samples be dispatched to the Government Analyst not later than 72 hours of its seizure and has held it to be a directory provision. Reliance is placed on Muhammad Sarfraz v. State (2017 SCMR 1874), Gul Alam v. The State (2011 SCMR 624) and Tariq Mehmood v. The State (PLD 2009 SC 39). In Taimoor Khan v. State (2016 SCMR 621) this Court has additionally held that Rules 3, 4 and 6 are mandatory. Deeper examination of this judgment reveals that reference was only being made to Rule 4(1), whereas, Rule 4(2) was not discussed, separately. This understanding falls in line with the consistent view of this Court regarding Rule 4(2) as referred to above.
18. It is important to underline that even if a rule is directory , its substantial comp liance as opposed to strict compliance is required. Non compliance of such a rule might not invalidate the act but as it provides a legislative process based on public interest, transparency and good governance, its substantial compliance is necessary ."
It may be mentioned at this very juncture that while dealing with similar situation in an identical matter reported as Ameer Zeb v . The State (PLD 2012 SC 380 ) the Hon'ble Supreme Court has observed as under: "5. .........W e, 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. It is for paramount importance to notice in this context that the sentences specified in the Control for Narcotic Substances Act, 1997 depend upon the quantity of the recovered narcotic substance and not upon the narcotic content of the recovered substance and, thus, quantity in such cases is the determinative factor as far as the sentences are concerned. It is, therefore, absolutely necessary that in all such cases there should be no room for doubt as to the exact quantity of the substance recovered and also as to the entire recovered substance being narcotic substances. We may also observe that in such cases it is the accused person who is at the receiving end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution."
14. The prosecution case is that the appellant was caught red handed while possessing narcotics. Allegedly 292 packets of "Charas " were recovered from possession of the appellant and Ghulam Mustafa, SI (PW-5), prepared only one sealed packet but did not draw any samples from each packet. A bare perusal of above Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and contents of Form II, would demonstrate that it was incumbent upon the investigator/ forwarding agency to give specific number to each sample and the substance from which it had been prepared in order to relate to its origin. Likewise it was compulsory for the Punjab Forensic Science Agency , Lahore to prepare the report with respect to each packet by specifically numbering them and giving details of full protocols of the tests applied as mandated by Rule 6 ibid, but this obligation was not fulfilled in the present case. In such a situation mere fact that the appellant was facing trial for possessing/ transporting heavy quantity of narcotics is not suf ficient to maintain his conviction.
15. As mentioned above, the case of the prosecution was that the whole recovered 292 packets were sealed in a bag and sent to the office of Punjab Forensic Science Agency, Lahore for their analysis. We have perused the report of Punjab Forensic Science Agency, Lahore (Exh.PE) minutely and find that the packet which was received at the said Punjab Forensic Science Agency, Lahore did not contain separate 292 packets as allegedly were sent to it. Rather as per the said report of Punjab Forensic Science Agency, Lahore (Exh.PE), one sealed parcel containing resinous material in sealed parcel was received. It is proved on record that the prosecution miserable failed to prove the safe custody of the narcotics allegedly recovered from the appellant. It is apparent from the bare perusal of the record that the recovered Charas, allegedly recovered from the appellant in the shape of 292 small packets, never reached the Punjab Forensic Science Agency, Lahore, however, Charas in shape of single compound, without any individual packets was received at the Punjab Forensic Science Agency, Lahore. Had the recovered "Charas" been recovered in 292 individual packets and had the same 292 individual packets been transmitted to Punjab Forensic Science Agency, Lahore then there was no reason for the Punjab Forensic Science Agency , Lahore not to mention the said 292 packets in its report (Exh.PE). In such a state of the absence of evidence available on the record, safe custody of the recovered substance or its sample is not discernable from the record of this case and, thus, we have found it to be extremely unsafe to upho ld and maintain the appellant's conviction and sentence recorded by the learned trial Court. In absence of such evidence, prosecution, which must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure, has failed to do so.
The break in the chain of custody and lapse in the control of possession of the recovered "Charas", casts doubts on the safe custody and safe transmission of the articles and impairs and vitiates the conclusiveness and reliability of the report of the Punjab Forensic Science Agency , thus, rendering it incapable of sustaining conviction. To prove the safe custody of the recovered "Charas" was pivotal for the prosecution, as the entire construct of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 rested on the report of the Punjab Forensic Science Agency , which in turn rested on the process of sampling and its safe and secure custody . The prosecution case is silent in respec t of these vital aspects of the case and hence it is impossible for us to determine safe and secure custody of the recovered "Charas" . In absence of this certainty we cannot believe the case of the prosecution as it is. Keeping all these possibilities in mind and raising necessary inferences from the facts available on the record we have arrived at a conclusion that a possibility cannot safely be ruled out of consideration regarding the appellant having been falsely implicated in the present criminal case and, thus, we have decided to extend the bene fit of doubt to him. We have noticed that there are serious discrepancies in the evidence of material witnesses which cannot be ignored though there is a slight difference by virtue of Narcotic Substances Act, 1997 in the manner and standard of proof in cases registered under the said Act but the prosecution is always bound to discharge the initial onus of proof. This is now a settled principle of law that in every case the burden to prove the guilt of the accused always lies on the prosecution. Even the slightest doubt results in failure of the case of the prosecution. Benefit of doubt is not to be granted as a concession but as of right. The prosecution by mishandling the case has badly failed to bring on record unimpeachable and cogent evidence to prove culpability of the appellant. In the light of the above noted infirmities, we are inclined to observe that prosecution has miserably failed to bring home the guilt of the accused. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in cases titled Ikramullah and others Vs. The State (2015 SCMR 1002), Akhtar Iqbal Vs. The State (2015 SCMR 291) and Muhammad Hussain Vs. The State (2008 SCMR 345). Reliance is also placed on the case of The STATE through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039) wherein the august Supreme Court of Pakistan has held as under:- "We have noted above that in Criminal Appeals Nos. 523 to 525/2017 and No. 22/2018, safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory . This chain of custody , is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory . The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002 ) that where safe custody or safe transmission of the alleged drug is not established, the Report of the Government Analyst becomes doubtful and unreliable."
16. For what has been discussed above, we are persuaded to hold that the convi ction and sentence recorded by the learned Additional Sessions Judge, Multan vide judgment dated 19.04.2018, in the circumstances, are not sustainable. We, thus while allowing the Criminal appeal No. 450 of 2018 filed by Khalid Razzaq son of Gul Muhammad , set-aside the judgment dated 19.04.2018 passed by the learned Additional Sessions Judge, Multan and acquit the appellant from the charges leveled against him. The appellant is ordered to be acquitted. The appellant is directed to be released forthwith if not required in any other case.
17. The case property shall be dealt with as directed by the learned trial court. The record of the learned trial court be sent down immediately .