SADIQ MAHMUD KHURRAM, J.- Zafar Iqbal son of Muhammad Manak appellant was tried by the learned Additional Sessions Judge, Multan, in case FIR No.12 of 2012 dated 11.09.2012 registered at Police Station ANF, 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 17.11.2015 convicted Zafar Iqbal son of Muhammad Manak, appellant and sentenced him as infra:- Imprisonment for life under section 9(c) of Control of Narcotic Substances Act, 1997 and directed to pay fine of Rs.200,000/- and in default thereof to further undergo Simple Imprisonment for six months.
The appellant was however , extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.)"
2. Feeling aggrieved, Zafar Iqbal son of Muhammad Manak (convict) lodged Criminal Appeal No.654 of 2015, challenging the judgment dated 17.11.2015 passed by the 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 Shafique Ahmad Khan, Inspector (PW-4) are as under:- "On 11.09.2012, I was posted at P.S ANF, Multan as SI. On the same day, a secret information was received to the high officials of ANF that one Zafar Iqbal son of Muhammad Manik, R/o Mandi Bahauddin who deals with the business of narcotics, on inter provincial level, and is involved in the smuggling of narcotics, would come today at some time on his car Honda City bearing No.AMD/501 Sindh and would travel to Bahawalpur via Jhang Multan road in which he has concealed Charas in a secret cavity. Upon that information, I, Muhammad Jehangir Subedar, Muhammad Younas Naib Subedar, Yousaf Hawaldar, Muhammad Ijaz, Naseem Shah, Muhammad Aslam constables, Muhammad Iqbal, Sabir Sepoys, Muhammad Akbar Driver, Zahoor Ahmad HC and informer, under the supervision of Jehangir Khan AD ANF, Multan reached in the area of near Pul Baghar, Jhang, Multan Road, District Khanewal at about 10:00 am on official vehicles. We made NAKABANDI of the area and at about 11:30 am, a car Honda City bearing registration No.AMD/501 Sindh red coloured was seen coming from the side of Jhang, the car was signaled to stop. But the driver tried to escape. The same was intercepted after blocking the road with official vehicles. I apprehended the driver of the car who disclosed his name as Zafar Iqbal accused present in the Court. I asked about the narcotics from him, who after some avoidance, disclosed that the narcotics was present in secret cavity made in the dickey of the said car. Upon that discloser, I opened the rear bumper of above said car and after removing the said bumper, there were three plates on the frame of the car which were fixed with screws, the screws of all three plates were opened by me and from the secret cavity made therein, the accused Zafar Iqbal himself took out the 72 packets of charas and produced the same to me. I weighed the each recovered packets of charas, which became 86.400 k.g. charas in toto. I separated 10 grams of charas from each packet and made 72-sealed sample parcels of charas from their chemical analysis and put the remaining bulk of charas in four plastic torras and made four sealed parcels of remaining bulk of chars and secured the remaining bulk of charas P1 through a recovery memo EX-PB which was attested by Zahoor Ahmad HC and Muhammad Aslam constable. I made the personal search of accused Zafar Iqbal and recovered Rs.7000/- P2, CNIC of accused P3, cell phone along with sim P4 and driving license of the accused P5 and secured the same through a recovery memo EX-PC which was attested by the same set of PWs. I also took into possession the above said Honda City Car bearing No.AMD/501 Sindh P6 along with its key P7 through a separate recovery memo EX-PD which was also attested by the same set of PWs. I drafted complaint Ex-P A and sent the same through Muhammad Akbar driver to P.S ANF, Multan on the basis of which, formal FIR EX-P A/1 was registered against the accused. I also drafted rough site plan of the place of recovery Ex-PE the notes giving therein are in my hand writing which bears my signatures. I recorded the statements of PWs u/s 161, Cr.P.C. On returning the P.S, I handed over the case property along with other articles to Sajjad Haider Moharar for keeping them in the safe custody of Malkhana who kept the same in Malkhana of P .S ANF, Multan.
On 13.9.2012 72 sealed sample parcels of charas weighing 10-grams each were sent to the office of Chemical Examiner, Multan through Sajjad Hussain, ASI intact. I recorded the statements of PWs in this respect on 13.09.2012. I received the report of chemical examiner PX-PF which is in positive. I sent a letter dated 12.09.2012 EX-PG to the concerned police station for supply of previous record of the accused. I also sent a letter dated 12.09.2012 EX-PH to the concerned MRI Karachi for the verification of ownership of above said car and a reminder dated 11.03.2013 EX-PJ which reply is still awaited. I interrogated the accused and found him involved in this case. I completed the investigation and prepared report u/s 173, Cr.P.C. and submitted the same before the trial Court for trial. "
4. 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 05.01.2013 under sections 9(c) of the Control of Narcotic Substances Act, 1997. The appellant pleaded not guilty and claimed trial.
5. In order to prove the facts the prosecution examined as many as four witnesses. Zahoor Ahmad HC (PW-3) and Shafiq Ahmad Inspector (PW-4) appeared as the witnesses of the recovery of "Charas" (Exh.P1). Sajjad Hussain Pasha ASI (PW-1) stated that on 13.09.2012 Sajjad Haider Moharrar (PW-2) handed over to him 72 sealed sample parcels of "Charas" for their onward transmission to the Office of Chemical Examiner for the Punjab, Multan. Sajjad Haider , Moharrar (PW-2) stated that on 11.09.2012 he recorded the formal FIR (Exh.P A/1) and also received the case property from Shafiq Ahmad Inspector (PW-4). He further stated that on 13.09.2012 he handed over 72 sealed sample parcels of "Charas" for their onward transmission to the Office of Chemical Examiner for the Punjab, Multan, to Sajjad Hussain Pasha ASI (PW -1).
6. Learned SPP, after giving up the PW Mohammad Aslam Constable being un-necessary closed the prosecution evidence on 07.08.2014.
7. After closing of prosecution evidence statement of the 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 PWs had deposed against him, he stated that he had been falsely involved in the case which was based on a concocted story on the asking of the complainant. The appellant 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.
8. 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.
9. 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 contradictions 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 and pleaded for acquittal of the appellant.
10. On the other hand learned Special Prosecutor for ANF 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. He also relied on the case of Khuda Bukhsh Vs. The State (2015 SCMR 735 ).
11. We have heard the learned counsel for the appellant as well as learned Special Prosecutor for ANF and perused the record.
12. At the very outset, we have noticed that Sajjad Hussain Pasha ASI (PW-1) stated that on 13.09.2012 Sajjad Haider , Moharrar (PW-2) handed over to him 72 sealed sample parcels of "Charas" for their onward transmission to the Office of Chemical Examiner for the Punjab, Multan, and Sajjad Haider , Moharrar (PW-2) stated that on 11.09.2012 he recorded the formal FIR (Exh.P A/1) and also received the case property from Shafiq Ahmad Inspector (PW-4). Sajjad Haider , Moharrar (PW-2) further stated that on 13.09.2012 he handed over 72 sealed sample parcels of "Charas " for their onward transmission to the Office of Chemical Examiner for the Punjab, Multan, to Sajjad Hussain Pasha ASI (PW-1). It cannot be denied that although seventy two samples of alleged "Charas" , allegedly recovered at the instance of the appellant, were prepared by the investigator and remitted to the Office of Chemical Examiner for the Punjab, Multan, but no specification/number on any of the samples was given so as to relate it with the piece of recovered contraband from which said sample had been prepared. The Office of Chemical Examiner for the Punjab, Multan, also after chemical analysi s has submitted a consolidated report (Ex.PF) declaring all the seventy two samples to be "Charas" instead of independent test details regarding each sample as required by law. It is not discernable from the report of Chemical Examiner for the Punjab, Multan, (Ex.PF) that whether each sample perta ining to narcotics, allegedly recovered from the appellant, had actually been analyzed separately . The evidentiary value of above report of Chemical Examiner for the Punjab, Multan, (Exh.PF) 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 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. DET AILS OF THE RESUL TS OF TESTS/ANAL YSIS: 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 ."
There is no denial that these Rules are being strictly followed by the Punjab Forensic Science Agency and when there are more than one samples sent to the chemical examiner , independent report about each item sent, is prepared and issued.
We find that the report of Chemical Examiner for the Punjab, Multan, (Exh.PF) 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 ."
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."
It was further observed as under: "As is evident from the resume of the precedent cases mentioned above, the trend of authority of this Court leans overwhelmingly in favour of obtaining and sending for chemical analysis a separate sample of every separate packet/cake/slab of the substance allegedly recovered from an accused person's possession and for its separate analysis by the Chemical Examiner in order to confirm and establish beyond doubt that the entire quantity of the allegedly recovered substance was indeed narcotic substance. It is our considered opinion that a sample taken of a recovered substance must be a representative sample of the entire substance recovered and if no sample is taken from any particular packet/ cake/slab or if different samples taken from different packets/cakes/slabs are not kept separately for their separate analysis by the Chemical Examiner then the sample would not be a representative sample and it would be unsafe to rely on the mere word of mouth of the prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance. It may be true that at least in some situations the Control of Narcotic Substances Act, 1997 stipulates disproportionately long and harsh sentences and, therefore, for the purposes of safe administration of criminal justice some minimum standards of safety are to be laid down so as to strike a balance between the prosecution and the defence and to obviate chances of miscarriage of justice on account of exaggeration by the investigating agency. Such minimum standards of safety are even otherwise necessary for safeguarding the Fundamental Rights of the citizens regarding life and liberty which cannot be left at the mercy of verbal assertions of police officers which assertions are not supported by independent evidence provided by a Chemical Examiner."
13. As per complainant the appellant was caught red handed with narcotics. Allegedly "Charas" contained in seventy two packets was recovered from possession of the appellant and the investigator on opening the same prepared seventy two samples but did not give any mark/identification as to from which packet which sample had been prepared so as to relate to its origin (from which packet it had been derived). A bare perusal of above Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and contents of Form-II of the said Rules 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 Chemical Examiner for the Punjab, Multan, to prepare a report with respect to each sample by specifically numbering them and giving details of full protocols of the test applied as mandated by Rule 6 ibid, but this obligation has not been fulfilled in the present case. The report of Chemical Examiner for the Punjab, Multan, (Ex.PF) reveals that the Chemical Examiner has not analyzed each sample separately or issued separate report to determine that the alleged packets of narcotics, recovered from the appellant, were in fact narcotic substance or not. In such a situation mere fact that the appellant was facing trial for possessing/transporting heavy quantity of narcotics, is not sufficient to maintain his conviction judgment.
14. The learned Special Prosecutor for ANF has laid reliance on the case of Khuda Bukhsh Vs. The State (2015 SCMR 735). We are afraid that the principles enunciated in the binding judgment of Khuda Bukhsh Vs. The State (supra) are hardly relevant to the facts of this case. In this case there has been a gross violation of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001. The case of Khuda Bukhsh Vs. The State (supra) laid guiding principles regarding the sentencing of the accused in case the case was proved beyond shadow of doubt. Stringent sentences have been provided for the offences under the Control of Narcotic Substances Act, 1997 as such heavy onus lies on the prosecution to prove guilt of the accused beyond shadow of doubt. But on the basis of ambiguous and vague report, the prosecution has failed to prove the charge against the appellant. The above lacunae lead us to infer that the very foundation on which whole prosecution case has been built has no legs to stand upon and evidence thus produced is not free from doubts. Needless to mention that benefit of doubt must go to the accused not as a matter of grace but as of right and we hold accordingly. Reliance is placed on the cases of Muhammad Mansha v. The State (2018 SCMR 772), Mst. Nazia Anwar v. The State and others (2018 SCMR 911), Azhar Mehmood and others v. The State (2017 SCMR 135), Ayub Masih v. The State (PLD 2002 SC 1048), Muhammad Akram v. The State (2009 SCMR 230), Amin Ali and another v. The State (2011 SCMR 323), Arif Hussain and another v. The State (1983 SCMR 428) and Tariq Pervaiz v. The State (1995 SCMR 1345 ). In the last one, following principle was laid down: "The concept of benefit of doubt to an accused person is deep-rooted in our country . For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right". (emphasis supplied).
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, Multan, vide judgment dated 17.11.2015, in the circumstances, are not sustainable. We, thus while allowing the Criminal Appeal No.654 of 2015 filed by Zafar Iqbal son of Muhammad Manak, set-aside the judgment dated 17.11.2015 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.
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 .