Sadiq Mahmud Khurram, J.--Abdul Samad son of Raza Muhammad (appellant) was tried by the learned Additional Sessions Judge, Dera Ghazi Khan in case FIR No. 119 of 2019 dated 27.03.2019 registered at Police Station Choti, District Dera Ghazi Khan, in respect of an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997. The learned Additional Sessions Judge, Dera Ghazi Khan vide judgment dated 11.09.2019 convicted Abdul Samad son of Raza Muhammad (appellant) and sentenced him as infra: Abdul Samad son of Raza Muhammad : Rigorous Imprisonment for four years under Section 9 (c) of the Control of Narcotic Substances Act,1997 and also burdened with fine of Rs. 20,000/-, in default thereof, was directed to further 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, Abdul Samad son of Raza Muhammad (convict) lodged the instant Criminal Appeal No. 915 of 2019, challenging the judgment dated 11.09,2019 passed by the learned Additional Sessions Judge, Dera Ghazi Khan, whereby the appellant was convicted and sentenced for an offence punishable under Section 9(c) 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 Kaleem Ullah, S.I (PW 2) are as under: "On 27.03.2019,1 alongwith police officials were present at Haideri Chowk in connection with patrolling as well as picket. A white colour GLI bearing registration NO.8967/LE came from western side, which was stopped. On query driver disclosed his name Abdul Samad S/o Raza Muhammad caste Noorzai rlo Pashin. On personal search of accused cash amount of Rs. 13000/- with the denomination of 13 currency notes of Rs. 1000/-, were recovered from right side pocket of accused and two mobiles phones Nokia 3310 were also recovered from accused. On search of car there was found blue colou r polythene shopper said to contain chars lying under the driver seat. On weighing it became 1450 grams. Out of which 75 grams separate as sample parce l and sealed into parcels, while remaining charas was also sealed into parcel. Total parcels of charas weighing 1450 grams P-1 taken into possession vide recovery memo Ex-PB. I also took into possession car GLI Car, mobile phones Nokia 3310 P-2/1- 2 and cash Rs. 13000/- P-3/1-13 through Ex-PC.The witnesses attested the said memos. I drafted complaint Ex- PA/ and sent to police station through Javed Iqbal 1568/C for registration of formal FIR. I recorded statements uls.161 of Cr.P.C. I prepared rough site-plan Ex-PD. I proceed to the police station alongwith accused and case property . The accused was sent to police lock up and then handed over the case property to Moharrir . Next day accused was sent to judicial lock up. I recorded statement uls.161 of Cr.PC of Sona Khan 'ASI and Ghulam Hassan Moharrir 962/HC recording delivery and submission of parcel in the office of PFSA, Lahore."
4. On the above stated facts FIR No. 119 of 2019 (Exh.P A) dated ,27.03.2019 was registered at Police Station Choti, District Dera Ghazi Khan, in respect of an offence under Section 9(c) 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 namely Abdul Samad son of Raza Muhammad was sent to face trial. The learned trial Court framed the charge against the accused on 25.04.2019 under Section 9(c) 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 witnes ses. The prosecution examined Kaleem Ullah, SI (PW-2) and Allah Wasaya 595/C (PW-4) as witnesses of the recovery of narcotics (1450 grams of "Charas "). Ghulam Hassan 962/HC (PW- 3) stated that on 27.03.2019, Kaleem Ullah, SI (PW-2) handed over to him two sealed parcels said to contain "Charas " out of which he handed over one sealed parcel to Sona Khan, ASI (PW-1) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Sona Khan, ASI (PW- 1) stated that he got lodged the formal FIR (Exh.P A).
7. On 07.08.2019, the learned ADPP gave up PW Muhammad Javed 809/C as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science `Agency (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 appella nt pleaded his innocence and in reply to as to why the PWs had deposed against him, he stated 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 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 for the appellant also contended that full protocols were not mentioned by the office of Punjab Forensic Science Agency while preparing the report (Ex.PE).
Learned counsel 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 counsel for the appellant as well as learned Deputy Prosecutor General and perused the record.
13. It is by now well settled that since the provisions of The-Control of Narcotic Substances Act, 1997 provide severe punishments, therefore, their proof has to be seen strictly and the benefit of any doubt in the prosecution case must be extended to the accused. Reference in this respect may be made to the case of "Muhammad Hashim v. The State" (PLD 2004 Supreme Court 856). Dealing with the same proposition, the august Supreme Court of Pakistan has held in the case of "Ameer Zeb v. The State" (PLD 2012 Supreme Court 380) that harder the sentence is, stricter the standard of proof should be. Seeking guidance from the abovementioned judgments of the August Supreme Court of Pakistan, we proceed to decide the instant case. We have observed that the report of Punjab Forensic Science Agency , Lahore (Exh.PE), tendered in evidence by the prosecution in this case does not give the details of the full protocols and the test applied at the time of analysis of sample of narcotics allegedly recovered from the possession of the appellant. Relevant/operative part of the report of the Punjab Forensic Science Agency , Lahore tendered in evidence by the prosecution as (Ex.PE), reads as under: Item No Description of Evidence
01. One sealed parcel said to contain 75 gram(s) of suspected Charas.
Tests Performed on Received ltem(s) of Evidence
1. Analytical Balance was used for weighing.
2. Chemical spot test(s) was/were used for Presumptive testing.
3. Gas Chromatograph-Mass Spectrometry was used for confirmation.
Results and Conclusion :- Items # 01 having net weight 75.02 gram(s) of dark brown resinous material in sealed parcel contains Charas."
Undisputedly , it is settled by now that any report failing to describe in it, the details of the full protocols and the tests 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 ibid. In the report of Punjab Forensic Science Agency , Lahore (Exh.PE), it is simply mentioned that certain tests were conducted and contraband material recovered in this case was found to be Charas instead of mentioning the details of tests applied on the samples and their protocols as required by law. The term "protocol" has not been defined in the Rules. Its dictionary meaning is: "A plan of scientific experiment or other procedure. It is also referred to as the precise method for carrying out or reproducing a given experiment. It is clarified that "protocol" is, therefore, a recognized standard method or plan for B carrying out the test applied to ascertain the nature of the substance under examination. No test can take place without a protocol The Report of the Government Analyst must show that the test applied was in accordance with a recognized standard protocol. Any test conducted without a protocol loses its reliability and evidentiary value. Therefore, to serve the purposes of the Act and the Rules; the Report of the Government Analyst must contain (i) the tests applied (ii) the protocols applied to carry out these tests (iii) the result of the test(s). Once the above three requirements under Rule 6 are contained in the Report of the Government Analyst, any ambiguity therein may be resolved by the Trial Court by exercising its power under Proviso to Section 510, Cr.P.C. The said provision states that the Court may, if it considers necessary in the interest of justice, summon and examine the person by whom such report has been made. Therefore, the Trial Court while examining the said Report has the power to summon the Government Analyst in case there is any ambiguity in the said Report and seek clarification thereof. This clarification can only be based on the existing record of the Government Analyst and does not mean to allow the Government Analyst to conduct a fresh test or prepare another Report, for that would amount to giving the prosecution a chance of filling the gaps and omissions in the Report. The Trial Court must also be mindful of the legal position that the per se admissibility of the Report i.e. without examining the Analyst (expert) does not vouch for its evidentiary value. The evidentiary value of report of the 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 Rules make s it imperative on an analyst to mention result of material analyzed with full protocols applied thereon along with other details in the report issued for test/ Analysis by the Laboratory .
14. We also find that the report of Punjab Forensic Science Agency , Lahore (Exh.PE) 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 vs. Imam Bakhsh and others" (2018 SCMR 2039 ). The relevant portion of the said judgment is reproduced as under: "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 conv iction 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 fundam ental 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)" .
The above said view has been further fortified in the recent case law titled as "Khair-ul-Bashar vs.The State"
(2019 SCMR 930). We have also requisitioned the attested copy of FIR in case of "Khair -ul-Bashar " supra i.e., FIR No. 18, dated 15.01.2016, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at police station Westridge, District Rawalpindi, as well as, attested copy of the report of the Punjab Forensic Science Agency , Lahore, exhibited as Ex.PII, in the said case before the concerned trial Court. The report of the Punjab Forensic Science Agency , Lahore, produced in evidence as Ex.PH, in the case of "Khair -ul-Basher" supra is identical with the report of the Punjab Forensic Science Agency , Lahore, produce d in the evidence of the present case before the learned trial Court as Exh.PE. As identical report in the case of "Khair -ul-Basher " supra has not been relied upon by the August Supreme Court of Pakistan, therefore, the identical report of the "Punjab Forensic Science Agency , Lahore produced in evidence of this case by the prosecution as Exh.PE, is also not worthy of reliance.
15. Learned Deputy Prosecutor General has argued that the appellant cannot be acquitted on the abovementioned sole ground of non-mentioning of protoco ls/full details of test applied, in the report of the Punjab Forensic Science Agency , Lahore but we have noted that the August Supreme Court of Pakistan in the case of "Khair -ul-Bashar " supra , acquitted the accused of the said case on the abovementioned sole ground of non-mentioning of protocols/full details of the tests applied in the report of the Punjab Forensic Science Agency , Lahore. Even otherwise, it is by now well settled that a single circumstance creating reasonable doubt would be sufficient to cast doubt about the veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right. 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 possib ility cannot safely be ruled out of consideration regarding the appellant having been falsely implicated in the prese nt criminal case and, thus, we have decided to extend the benefit of doubt to him. 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). The august Supreme Court of Pakistan in the case of Muhammad Mansha vs.The State (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221 ), Muhammad Akram v . The State (2009 SCMR 230 ) and Muhammad Zaman v . The State ( 2014 SCMR 749 ). "
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, Dera Ghazi Khan, vide judgment dated 11.09.2019, in the circumstances, are not sustainable. We, thus while allowing the instant Criminal appeal No. 915 of 2019 filed by Abdul Samad son of Raza Muhammad (appellant), set-aside the judgment dated 11.09.2019 passed by the learned Additional Sessions Judge Dera Ghazi Khan and acquit the appellant of the charge 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 .