Syed Shahbaz Ali Rizvi, J.--Mansabdar , appellant, through this appeal, has assailed the judgment dated 15.10.2016 passed by the learned Addl. Sessions Judge, Jhang in case FIR No.76 dated 12.02.2015, offence under Section 9(c) of the Control of Narc otic Substances Act, 1997 registered at Police Station City Jhang District Jhang whereby , the appellant was convicted under 'Section 9(c) of the Act ibid and sentenced to rigorous imprisonment for six years with fine of Rs.30,000/- and in default thereof, to undergo simple imprisonment for six months. The appellant was however , awarded the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
2. Per prosecution, the brief facts of the case, as disclosed by Bashir Ahmad, SI, complainant/investigation officer (PW-5) in his complaint (Exh-P A) on the basis of which formal crime report (Exh-P A/1) was registered, are that on 12.02.2015 at about 09.00 am, on suspicion, the appellant was apprehended and during his personal search 1020 grams heroin was recovered from a shopper bag being held by him in his right hand.
3. After investigation, report under Section 173 of the Code of 'Criminal Procedure, 1898 was submitted. The learned trial Court, after observing pre-trial codal formalities, framed the charge against the appellant on 02.04.2015 to which he pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as six witnesses during the trial. Haq Nawaz 104/HC (PW-1) is the duty officer who, on receipt of complaint (Exh-P A) drafted formal crime report (Exh-P A/1) without any addition or omission on his part. Safdar Ali 800/MHC (PW-2) is the Moharrer of the police station.
Karamat Hussain 326/C (PW-3) transmitted the sample parcel to the office of the Punjab Forensic Science Agency , Lahore for analysis. Haider Ali 1038/C (PW-4) and Mazhar Iqbal 1868/C (PW-6) are the witnesses of recovery whereas, Bashir Ahmad, SI (PW-5) is the complainant and the investigation officer of the case. The learned Assistant District Public Prosecutor after tendering the report of the Punjab Forensic Science Agency , Lahore (Exh- PD) in evidence, closed the prosecution evidence,
5. After completion of prosecution evidence, the statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, he denied the allegation levelled against him, professed his innocence and maintained that he had falsely been implicated in this case by the police. He neither opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 to rebut the allegation against him nor did he produce evidence in his defence.
6. The learned trial Court vide its judgment dated 15.10.2016, found the appellant guilty , convicted and sentenced him as mentioned above.
7. Learned counsel for the appellant, inter alia, contends that the appellant has falsely been implicated in this case; that there are material contradictions in the statements of the prosecution witnesses; that the chain of safe custody of the contraband material is not intact in this case; that there is nothing mentio ned of the tests performed and protocols observed by the Punjab Forens ic Science Agency on the report (Exh-PD); that the prosecution remained fail to prove its case against the appellant beyond the shadow of any reasonable doubt; that this appeal may be accepted and the appellant be acquitted of the charge.
8. On the other hand, learned Deputy Prosecutor General opposes the contentions raised by learned counsel for the appellant and, inter alia, argues that the complainant and other prosecution witnesses, police officials, have no mala fide or ill will against the appellant to falsely implicate' him in this case; that the appellant was caught red handed; that huge quantity of narcotics was recovered from possession of the appellant; that there are no material contradictions in the statements of the prosecution witnesses; that this appeal may kindly be dismissed.
9. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General and also scanned the record with their assistance.
10. Categorical stance of PW-2 to the effect that Bashir Ahmad, SI (PW-5) handed him over the case property , two sealed parcels said to contain heroin on 17.02.2015 though discrepant with PW-5, creates serious doubt about the safe custody of the material till 17.02.2015 allegedly recovered from the possession of appellant on 12.02.2015. It has also been noticed that according to the statement of Safdar Ali 800/MHC (PW-2), he being 'Moharrer' of the police station delivered sealed parcel on 17.02.2015 to Karamat Hussain 326/C (PW-3) for its onward transmission to the office of the Punjab Forensic Science Agency , Lahore while the statement of (PW-3) transpires that after receiving parcel from 'Moharrer', he deposited the same to the office of the Punjab Forensic Science Agency , Lahore on 18.02.2015 but the perusal of the report (Exh-PD) of the said Agency discloses that the parcel was submitted by Karamat Hussain 326/C (PW-3) on 19.02.2015. Prosecution case is silent about the safe custody of sample parcel between 18.02.2015 and 19.02.2015. This discrepant and cryptic prosecution evidence available on file renders the credibility of the safe custody of the sample parcel seriously doubtful which further casts doubts about the authenticity of the report (Exh-PD). We are of the considered opinion that if the prosecution remains fail to prove safe custody of the sample parcel between the police station and office of the Punjab Forensic Science Agency , the report (Exh-PD) cannot be trusted upon and when it is so, it canno t be said with certitude that the contraband allegedly recovered from the possession of the appellant was a narcotic.
11. Another important aspect of this case, in the light of dictum repeatedly laid down by the Hon'ble Supreme Court of Pakistan in the case of The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ) and case titled Khair ul Bashar v. The State , Crl. Appeal No.94 of 2019, noticed by this Court is that the Punjab Forensic Science Agency , Lahore has not complied with the mandatory provisio ns of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 ("Rules"). The Honble Apex Court of the country has held that the report of the Government Analysts due in consequence of Rule 6 must provide for (i) tests and analysis of the alleged drug/narcotic (ii) the results of the tests carried out and (iii) the test protocols applied to carry out these tests and that these three elements form the fundamental and the core elements of a valid report prepared by a Government Analyst. It has also been held in Criminal Appeal No.94 of 2019 that non-compliance of Rule 6 and absence of any of these mandatory elements/requirements frustrates the purpose and object of the Act. In this case, the report prepared by the Punjab Forensic Science Agency (Exh-PD) thoug h carries the names of the tests yet it does not provide results of the same except a concluding result. The Analyst has not bothered even to mention the test protocols applied in carrying out the required tests which of course is against the mandate of Rule 6 hence, it is not safe to rely upon the report of the Government Analyst dated' 28.05.2015. We are of the considered opinion that the appellant in such a case of narcotics cannot be convi cted and sentenced only on the basis of oral assertions of the police witnesses i.e. PW-1 to PW-6 unless it is established with certitude that the material allegedly recovered at the instance of the appellant was a narcotic that, in our view, prosecution failed to do.
12. It is, by now, well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit of the weaknesses of the defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving its case against the appellant. There remains no cavil about the proposition that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused. The Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The State (PLD 2002 SC 1048 ) was pleased to observe as under:-- "...The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted"..."
13. In the light of above discussion, Criminal Appeal No.728-J of 2016 filed by Mansabdar (appellant) is allowed, his conviction and sentence recorded by the learned trial Court is set aside and he is acquitted of the charge levelled against him by extending him the benefit of doubt. He is in custody , be released forthwith if not required to be detained in any other case.