Anwaarul Haq Pannun, J.--This single judgment shall decide Criminal Appeal No.75452-J of 2017 (Sajjad Ahmad and another Vs. The State ) and Criminal Appeal No.59484 of 2017 (Mujahid Vs. The State ) filed under Section 48 of The Control of Narcotic Substances Act, 1997 (CNSA, 1997), by the appellants Sajjad Ahmad, Muhammad Shafi and Mujahid, calling in question the vires of judgment dated 26.04.2017, passed in case/FIR No.24/2016, dated 17.07.2016, offence under Sections 9(c) and 15 of CNSA, 1997, registered at Police Station ANF, Faisalabad y the learned Addl. Sessions Judge/Special Judge (CNS), Faisalabad, whereby the appellants have been convicted and sentenced as under:--.
Under Section 9(c) of CNSA. 1997
(a) The accused/appellant Mujahid "Sentenced to undergo rigorous imprisonment for a period of four years alongwith fine of Rs.3000/- and in default whereof, he shall further undergo SI for two months."
(b) The accused/appellant Muhammad Shafi "Sentenced to undergo rigorous imprisonment for a period of seven years alongwith fine of Rs.30,000/- and in default whereof, he shall further undergo SI for six months."
(c) The accused/appellant Sajjad Ahmad "to undergo rigorous imprisonment for a period of six years alongwith fine of Rs.8000/- and in default whereof, he shall further undergo SI for five months."
"The period continuously undergone by the convicts in judicial lock up shall be counted toward imprisonment."
2. Precisely the facts as embodied in the FIR (Exh.P A 1), lodged on the complain t (Exh.P A) of Sajid Ali Khan S.I (PW-3) are that on 17.07.2016, higher officer of Police Station ANF, Faisalabad received secret information that the drug paddlers Sajjad Ahmad, Muhammad Shafi and Mujahid, appellants would come along-with heavy consignment of narcotic from Peshawar to Faisalabad via motorway by a motor car No.GAA 1629. On this information, a raiding party consisting of Sajid Ali Khan SI, Tanveer Ahmad Naib Subedar , Ahmad Aftab, Shahid Iqbal, Abdul Rehman constables, Asif Ali, Nazir Hussain Sipahies was constitute d and reached near Toll Plaza motorway Faisalabad. At about 5.30 a.m. the said car took exit from Toll Plaza, which was stopped. Three persons alighted from this car, who were apprehended. Car driver disclosed his name as Mujahid while other person sitting on the back of driving seat disclosed his name as Muhammad Shafi. The person sitting on front seat told his name Sajjad Ahmad. On interrogation about the narcotic, Mujahid after some relucta nce got recovered one packet containing opium weighing 1200 grams from beneath the driving seat, Sajjad Ahmad got recovered three packets of opium (each weighing 1200 grams total 3.6 kilograms) from beneath his seat and Muhammad Shafi got recovered three packets of heroin (two packets weighing 01 Kg and one packet 500 grams, total weighing 2.5 KG) from his lap. Sample of 10 grams from each packet was separated. The sample parcel and the case property were sealed into separate parcels and were taken into possession vice recovery memos. Exh.PB, Exh.PC and Exh.PD.
3. After investigation and on receiving the report under Section 173, Cr.P.C, the learned trial Judge took the cognizance, supplied the requisite copies under Section 265(c), Cr.P.C, framed the charge against the appellants, to which they pleaded not guilty . The learned trial Court proceeded to record the evidence of the prosecution witnesses. The prosecution has produced as many as four prosecution witnesses (PW-1 to PW-4), in order to prove the charge against the accused/appellants. Abu Zar Muhammad Afzal ASI (PW-1) chalked out formal FIR (Exh.P A/1). He also deposed about keeping of the sample parcels and case property in safe custody in the malkhana. Farid Ullah Constable (PW-2) deposed about transmission of the sample parcels to the office of NIH Islamabad. Sajid Ali Khan SI (PW-3.) is the complainant and Investigating Officer of the case. Ahmad Aftab Constable (PW-4) is the recovery witne ss. The learned Special Public Prosecu tor gave up PWs Shahid Iqbal Constable being unnecessary and tendered positive reports issued by NIH Islamabad (Exh.PN/1-3, Exh.PQ/1-3 and Exh.PR and closed the prosecution 's evidence. The appellants when exami ned under Section 342, Cr.P.C, refuting the prosecution's evidence, pleaded their innocence and in reply to the questions as to why this case and why the PWs deposed against them, they replied as under:-- Accused/appellant Sajjad Ahmad "PWs are all police officials due to which they deposed against me to assist ANF officials who involved me in this case just to show their ef ficiency and they made me a escape goat only to score the points."
Accused/appellant Muhammad Shafi "I am guilty(inadvertently written instead of innocent), but ANF officials did not bother to arrest the actual culprit inspite of my information."
Accused/appellant Mujahid "PWs are all police officials due to which they deposed against me to assist ANF officials who involved me in this case just to show their ef ficiency and they made me a escape goat only to score the points."
The appellants themselves neither appeared' under Section 340(2), Cr.P.C, as their own witnesses nor produced any evidence in their defence. On the conclusion of trial, the learned trial Judge convicted and sentenced the appellants through the impugned judgment as alluded to in Para No. 1 of the instant judgment. Hence, this appeal.
4. Arguments heard. Record perused.
5. After hearing learned counsel for the appellants, Special Prosecutor for ANF and perusing the record, it is straightaway observed by us that the case of the prosecution is hit by Rule 6 of The Control of Narcotic Substances (Government Analysts) Rules, 2001 as it is well settled by now that any Report failing to describe in it, the details of the full protocols, the test applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary presumption attached to a Report of the Government Analyst under Section 36(2) of the Act. In the present case, we have minutely gone through the reports issued by National Institute of Health Drugs Control and Traditional Medicines Division Islamabad (Ex.PN/1-3), (Exh.PQ/1-3) and (Exh.PR) and found that these reports did not contain the protocols and the test applied for. It has been held in case titled "The State through Regional Director ANF Vs. Imam Bakhsh and others" ( 2018 SCMR 2039 ) that:--
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 protoco ls of the test applied will be inconclus ive, 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).
6. Resultantly , the reports issued by National Institute of r: Health Drugs Control and Traditional Medicines Division Islamabad (Ex.PN/1-3), (Exh.PQ/1-3) and (Exh.PR) are suffering from legal and incurable flaws and cannot be considered as conclusive proof of recove red material to be contraband and would not be termed or considered as admissible in evidence. Thus, the non-conclusive and non-speaking laboratory report, which was not in accordance with law and rules, cannot be relied upon for sustaining the conviction. Moreover , the fact that the appellants were facing trial for possessing/transporting heavy quantity of narcotic is also not sufficient to maintain their conviction judgment.
7. In view of the above, we are of the view that prosecution has failed in establishing its case against' the appellants beyond any shadow of doubt. Though there is a slight difference in the manner and standard of proof in the cases registered under The Control of Narcotic Substances Act, 1997 but the prosecution is always burdened to discharge the initial onus of proof. Though under Section 29 of The Control of Narcotic Substances Act, 1997, some departure has been introduced to this general principle, yet the prosecution cannot be absolved from its duty to discharge the onus of proof. ##E## The initial onus of proof always on the prosecution and when once it is discharged, then the accused would be burdened to prove the contrary in terms of principles laid down in Section 29 of The Control of Narcotic Substances Act, 1997. The case of the prosecution is not free of doubt and for earning the acquittal, the accused is not obliged to establish number of circumstances creating doubts but even a single circumstance, creating a reasonable doubt in the prudent mind is sufficient to extend the benefit of doubt to the accused. Reliance in this regard is placed upon case titled "Muhammad Ashraf and others u. The State and others" (PLD 2015 Lahore 1 ) and " Muhammcul Zaman a. The State and others " (2014 SCMR 749 ).
8. For what has been discussed above, we are of the considered view that the prosecution has failed to discharge its onus for upholding the conviction recorded by the learned Addl. Sessions Judge/Special Judge (CNS), Faisalabad, against the appellants. Consequently , while allowing these appeals, we set aside the judgment dated 26.04,2017 and acquit the appellants Sajjad Ahmad, Muhammad Shafi and Mujah id of the charge. The appellants are in jail, they be released forthwith if not required in any other case.