SADIQ MAHMUD KHURRAM, J. - Nishat Ahmad son of Zahoor Hussain (appellant) was tried by the learned Additional Sessions Judge/ Special Court of CNSA, Kabirwala, in case FIR No.349 of 2017 dated 28.11.2017 registered at Police Station Saddar Kabirw ala, District Khanewal, in respect of an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 and the learned Additional Sessions Judge/ Special Court of CNSA, Kabirwala vide judgment dated 06.03.2019 convicted Nishat Ahmad son of Zahoor Hussain (appellant) and sentenced him as infra: Nishat Ahmad son of Zahoor Hussain : Rigorous Imprisonment for one year and three months under section 9 (b) of the Control of Narcotic Substances Act, 1997 and also burdened with fine of Rs.9,000/-, in default thereof, was directed to further undergo simple imprisonment for three months and fifteen days.
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, Nishat Ahmad son of Zahoor Hussain (convict) lodged Criminal appeal No. 134 of 2019, challenging the judgment dated 06.03.2019 passed by the learned Additional Sessions Judge/ Special Court of CNSA, Kabirwala, whereby the appellant was convicted and sentenced for an offence punishable under Section 9(b) of the 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 Manzoor Ahmad, ASI (PW -1) are as under: "Stated, that on 28.11.2017, I was posted at P.S. Saddar, Kabirwala as ASI. On the same day, I along with other police officials Shahid Tanveer 1125/C, Allah Rakha 300/C, Naziir Ali PQR on official vehicle for the purpose of patrolling duty was present at pull Chawan. One person came from 5 Kassi and tried to return back on seeing the police party who was apprehended and told his name Nishat son of Zahoor Hussain caste Bhutta, resident of Mohallah Muhammad Pura. Upon his personal search, Chars P-1 which was wrapped in polythene shopper was recovered from right flank pocket of his shirt on weighing became 250 grams. I prepared two sealed parcels.
One of which was sample parcel of 13 grams charas whereas the remaining parcel was case property P-1 which was also taken into possession through recovery memo Exh,PA which was signed by PWs Shahid Tanveer 1125-C and Allah Rakha 300-C in token of its correctness. I drafted the complaint Exh.P.B and sent the same to the police station for registration of the FIR through Nazir PQR and accordingly FIR No.349/17, under section 9- C was registered upon the said complaint. I also handed over the custody of the accused as well as recovered contraband to the I.O Mumtaz Hussain S.I on the spot. 13 grams chars already separated parcel was also given to the I.O on the spot.
On 05.12.2017, Azhar Abbas 160/HC handed over to me sealed parcel for onward transmission to the office of P.F.S.A Lahore which I deposited in the Punjab Forensic Science Agency , Laho re on the same day intact. I.O recorded my statement under section 161 Cr .P.C."
4. On the above stated facts FIR No.349 of 2017 (Exh.PB/1) dated 28.11.2017 was registered at Police Station Saddar Kabirwala, District Khanewal, in respect of an offence under section 9(b) of the 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 accused on 26.03.2018 under section 9(b) of the Control of Narcotic Substances Act, 1997.
The appellant pleaded not guilty and claimed trial and the learned trial Court proceeded to examine the prosecution witnesses.
6. In order to prove the facts the prosecution examined as many as four witnesses. The prosecution examined Manzoor Ahmad, ASI (PW-1) and Shahid Tanveer 1125/C (PW-2) as witnesses to the recovery of 250 grams of "Charas " (Exh.P1) . Azhar Abbas , 160//HC (PW-4) stated that on 28.11.2017 he recorded the formal FIR (Exh.PB/1) and on the same day Mumtaz Hussain, SI (PW-3) handed over to him two sealed parcels said to contain "Charas" which he on 05.12.2017 handed over one sealed parcel to Manzoor Ahmad, ASI (PW-1) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Mumtaz Hussain S.I. (PW-3) investigated the case from 28.11.2017 till 06.12.2017 and detailed the facts of the investigation in his statement recorded by the learned trial court.
7. On 25.02.2019, learned ADPP gave up PW Allah Bakihsh 300/C as being unnecessary and closed the prosecution evidence after tendering in evidence report of Punjab Forensic Science Agency (Exh.PD).
8. After closing of prosecution evidence the statement of appellant was recorded under section 342 of Code of Criminal Procedure, 1898 and the appella nt pleaded his innocence and in reply to as to why the PWs had deposed against him, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution being subordinate to the Investigating Officer. The appellant however opted not to appear in terms of section 340(2) of the Code of Criminal Procedure, 1898 nor adduced 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 counsels for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant. Learned counsels further argued that there were glaring contradictions in the statements of the witnesses hitting at the very root of the prosecution case. Learned counsels also stated that nothing was recovered from the appellant and pleaded for acquittal of the appellant.
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 counsels for the appellant as well as learned Deputy Prosecutor General and perused the record.
13. At the very outset, we have carefully perused the record and the evidentiary value of above report of Punjab Forensic Science Agency , Lahore , (Exh.PD) 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 the result of each sample analyzed with full protocols applied thereon alongwith other details in the Certificate issued for test/Analysis by Laboratory .
Rule No.6 of the Control of Narcotic Substances (Government Analyst) Rules, 2001 states as infra:
6. Report of result of test or analysis .___ After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II.
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: SampleNo......................................................... 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 Fede ral Narcotics Testing Laboratory Signature of any other authorized officer of Laboratory."
We find that the report of Punjab Foren sic Science Agency , Lahore , (Exh.PD) is not in line with the principles enunciated by the august Supreme Court 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 evidentiary 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 compliance 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 ."
A perusal of report of the Punjab Forensic Science Agency, Lahore (Exh.PD) further reveals that no Gas Chromatography- Mass Spectrometry was used for confirmation of the presumptive tests performed on the received items. Only Chemical Spot Tests were used for Presumptive Testing. Presumptive tests, also known as preliminary tests or field tests, allow drugs to be quickly classified into a particular chemical group, but do not unequivocally identify the presence of a specific chemical compound. It is the Confirmatory Test which conclusively establishes the identity of a controlled substance. In this case no Confirmatory Tests were performed on the received items by the Punjab Forensic Science Agency, Lahore. Gas chromatography- mass spectrometry (GC-MS) is an analytical method that combines the features of gas-chromatography and mass spectrometry to identify different substances within a test sample. Gas chromatography-mass spectrometry (GC- MS) has been regarded as a "gold standard" for forensic substance identification because it is used to perform a 100% specific test, which positively identifies the presence of a particular substance. The Gas chromatography- mass spectrometry (GC-MS) is composed of two major building blocks: the gas chromatograph and the mass spectrometer. The gas chromatograph utilizes a capillary column which depends on the column's dimensions (length, diameter, film thickness) as well as the phase properties (e.g. 5% phenyl polysiloxane). The difference in the chemical properties between different molecules in a mixture and their relative affinity for the stationary phase of the column will promote separation of the molecules as the sample travels the length of the column. The molecules are retained by the column and then elute (come off) from the column at different times (called the retention time), and this allows the mass spectrometer downstream to capture, ionize, accelerate, deflect, and detect the ionized molecules separately. The mass spectrometer does this by breaking each molecule into ionized fragments and detecting these fragments using their mass-to-charge ratio. The final steps of the process involve ion detection and analysis, with compound peaks appearing as a function of their m/z ratios. Peak heights, meanwhile, are proportional to the quantity of the corresponding compound. A complex sample will produce several different peaks, and the final readout will be a mass spectrum. Using computer libraries of mass spectra for different compounds, researchers can identify and quantitate unknown compounds and analytes. In absence of such confirmation by the use of Gas Chromatography- Mass Spectrometry, no reliance can be placed on the report of Punjab Forensic Science Agency, Lahore (Exh.PD).
14. We have also noted with grave conce rn that Manzoor Ahmad, ASI (PW-1) did not proceed to the Police Station after the arrest of the accused for getting the FIR recorded rather deputed Nazir PQR (not produced) to get the FIR registered. It is unexplainable as to why Manzoor Ahmad, ASI (PW-1) himself did not proceed to the Police Station when he himself had arrested the appellant and the police station was at a distance of just five miles from the place of occurrence. Additionally the said Nazir , PQR was neither cited as a witness nor his statement under section 161 Cr.PC was recorded by the Investigating Officer during the investigation of the case nor he was examined as a witness during the trial of the case thoug h he was also an eye witness of the occurrence. This aspect of the case has convinced our minds that the whole prosecution case is a figment of imagination of Manzoor Ahmad, ASI (PW- 1) , the complainant and the witness of the case. The august Supreme Court of Pakistan in the case of Minhaj Khan Vs. the State (2019 SCMR 326 ) has held as under:- "An unusual facet of this case is that having apprehended and arrested the petitioner the PW-2 did not take him to police station Hazro to register the FIR and instead deputed Constable Jehanzeb Khan to take his written complaint, which he wrote out when the petitioner was apprehended, to Police Station Hazro Constable Jehanzeb Khan, "left place of occurrence on feet" [sic] to the police station which was at a distance of 15/16 kilometers and the FIR was registered on the basis of said written complaint. Constable Jehanzeb Khan was not produced as a prosecution witness. Since Police Station Hazro was at a distance of 15/16 kilometers from the place of occurrence it does not stand to reason that Constable Jehanzeb Khan was directed to go there on foot with the written complaint, whilst PW-2 (the complainant) himself could easily have driven there in the said car.
Constable Jehanzeb Khan with the written complaint arrived at Police Station Hazro at 3:30 p.m. while PW-2 reached there much later, at 5:00 p.m. No explanation was offered by PW-2 what he was doing in the intervening period. The manner in which this case was split up is inexplicable; Constable Jehanzeb Khan was sent off with the written complaint to the police station on foot while the complainant with accused and the confiscated substance went there by car. Constable Jehanzeb Khan travelling by foot arrived at the police station an hour and a half earlier than the complainant PW-2.
9. The discrepancies in the testimonies of the two witnesses; the purported lack of knowledge about certain things which they ought to have remembered whilst having a photographic recollec tion of other insignificant things; not knowing those things which they should have; the fact that Constable Jehanzeb Khan reached the police station before the complainant PW-2; the non-production of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums ; and the inexplicable conduct of the complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity . The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons."
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 benefit 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 ).
15. For what has been discussed above, we are persuaded to hold that the convi ction and sentence recorded by the learned Additional Sessions Judge/ Special Court of CNSA, Kabirwala, vide judgment dated 06.03.2019, in the circumstances, are not sustainable. We, thus while allowing the Criminal appeal No.134 of 2019 filed by Nishat Ahmad son of Zahoor Hussain, set-aside the judgment dated 06.03.2019 passed by the learned Additional Sessions Judge/ Special Court of CNSA, Kabirwala and acquit the appellant of the charge leveled against him. He is directed to be released forthwith if not required in any other case.
16. 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 .