Asjad Javaid Ghural, J.--Through this criminal appeal under Section 48 of The Control of Narcotic Substances Act 1997, appellant Arslan Masih alias Dana Masih has challenged the vires of judgment dated 25.08.2018 passed by the learned Additional Sessions Judge/Judge Special Court Control of Narcotic Substances Act, 1997, Sahiwal in case FIR No. 593 dated 20.12.2017, in respect of an offence under Section 9-C of the Control of Narcotic Substances Act, 1997 registered at Police Station, Fateh Sher, Sahiwal whereby he was convicted and sentenced to the rigorous imprisonment for 04-years and six months to pay the fine of Rs. 200,000/-and in case of default, to further undergo simple imprisonment for six months.
2. The prosecution story unfolded in the crime report (Ex.P A/1) registered on the complaint of Haji Ali Sher Asad, SI (PW-1) is that on 20.02.2017 at about 08:30 p.m. he alongwith other police contingents apprehended a person on a tip-of f, who subsequently disclosed his name as Arslan Masih alias Dana Masih from Karbla Chowk near Faridiya Park and on his personal search, charas weighing 1320-kilogram were recovered from a shopper being carried by him in his right hand. The complainant separated 66-grams sample parcel from the recovered narcotic substance for analysis. The recovered contraband substance and the sample parcel were sealed and taken into possession vide recovery memo Ex.PB.
3. Muhammad Shahid Nazir , Ex-SI (PW-4) visited the place of occurrence on the same day, interrogated the appellant as well as the witnesses and recorded their statements at the spot. After completion of investigation, he got prepared report under Section 173, Cr .P.C.
4. At the commencement of the trial, the learned trial Court had framed a charge against the appellant to which he had pleaded not guilty and claimed to be tried.
5. The prosecution had produced 04-witne sscs besides the report of Chemical Examiner (Ex.PD). The appellant, in his statement recorded under Section 342, Cr.P.C., had denied and controverted the allegations leveled against him, he neither opted to make statement under Section 340(2), Cr .P.C., nor produced any evidence in his defence.
6. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellant as stated above, hence this criminal appeal.
7. Learned counsel for the appellant contends that the prosecution has miserably failed to prove the charge against the appellant beyond reasonable doubt but the learned trial Court proceeded to convict the appellant erroneously without appreciating the material available on record; that the appellant was not arrested at the spot and the contraband substance in issue has no concern whatsoever with him; that the place of recovery of alleged narcotic substance remained uncertain as admitted by the complainant as well as the recovery witness during investigation; that the complainant did not mention the shape of recovered narcotic substance; that though the report of Punjab Forensic Science Agency (Ex.PD) has been received with positive result yet the same is not conclusive wherein no test and protocols were deserved that the conviction and sentence of the appellant awarded by the learned trial Court supra cannot be maintained and, thus, the impugned judgment is not sustainable.
8. Learned Deputy Prosecutor General appearing on behalf of the State could not controvert the arguments advanced by learned counsel for the appellant with regard to the dubious place cf recovery as well as exact shape of the charas, however he added that the prosecution has successfully proved the charge against the appellant through reliable, cogent, convincing and confidence inspiring evidence and that the police contingents had no or grudge against the appellant to falsely implication him in this case.
9. We have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State and perused the record.
10. Ali Sher, SI (PW-2) and Zakir Hussain, ASI (PW-3) appeared in the dock in the Courtroom deposing that Oil 20.12.2017, they received a tip-of f and on pointing out by the spy informer , they apprehended the appellant while he was carrying 1320-grams of charas wrapped in a polythene shopping bag, which was taken into possession by the complainant vide recovery memo (Ex.PB) singed by them as well as Sardar Ali, ASI (given up) as a token of its correctness. The complainant claimed to have separated 5% of the recovered narcotic substance i.e. 66-grams of sample for its onwards transmission to the office of Punjab Forensic Science Agency for analysis and handed it over to Muhammad Shahid Nazir , Ex-SI/I 0 (PW-4), who recorded the statements of witnesses under Section 161, Cr.P.C. The investigating officer further handed over the case property to Moharrir namely . Muhammad Iqbal, HC (PW-1) on the same day from where the sample parcel was sent and deposited into the office of Punjab Forensic Science Agency , Lahore for analysis through the complainant himself on 21.12.2017 and the report from the aforesaid of fice (Ex.PD) has been received with positive result.
11. The question regarding the exact place of recovery as well as shape/nature of the recovered narcotic substance remained unanswered throughout the trial. The complainant admitted during cross-examination that he could not tell the specific place of recovery , which was substantiated by the investigating cfficer deposing that no specific place of recovery is mentioned in the site-plan (Ex.PC). The investigating officer further admitted during cross- examination that "it is correct that I have not seen the case property with my own eyes because the same was handed over to me in sealed form It is correct that another FIR No. 592/17 U1S 9-C, CNSA P.S. Fateh Sher was registered at 06:30 p.m. on 20.12.2017 on the complaint of Ali Sher, SI. It is correct that I was the I.O. of that case.
It is correct that Shakeel alias Sheela has been acquitted from the Court of Mr. Wajahat Hassan, learned ASJ, Sahiwal. This part of testimony of the complainant clearly shows that they initiated false proceedings while sitting in the police station not only against the preset appellant but also against another citizen, who has already been acquitted by the trial Court. Furthermore, the complainant did not mention the exact shape of recovered narcotic substance ostensibly , and the investigating officer did not bother to get it clarified during investigation perhaps for the reason that all the proceedings were conducted in the police station by the police in connivance with each other and no such occurrence took place.
12. The last but not least aspect of the matter is that the report of Punjab Forensic Science Agency (Ex.PD) shows that none of the relevant protocols, and tests was observed by the Punjab Forensic Science Agency , which was a complete failure of compliance of the relevant rule and, thus, the same cannot be treated as a "conclusive" proof of the recovery of narcotic substance from the appellant. We seek guidance in this respect from case titled "Ikramullah and others versus The State" (2015 SCMR 1002 ) wherein at page No. 1005, it has been held as under: "A bare look at the report submitted by the Chemical Examiner in the present case shows that the entire page which was to refer to the relevant protoco ls and tests was not only substantially kept blank but the same has also been scored off by crossing it from top to bottom. This surely was a complete failure of compliance of the relevant rule and such failure reacted against reliability of the report produced by the prosecution before the learned trial Court. Section 36 of the Control of Narcotic Substances Act, 1997 requires a Government Analyst to whom a sample of the recovered substance is sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in "the prescribed manner form" and, thus, if the report prepared by him is not prepared in the prescribed manner then it may not qualify to be called a report in the context of Section 36 of the Control of Narcotic Substances Act, 1997 so as to be treated as a "conclusive" proof of recovery of narcotic substance from an accused person."
This view has further been fortified in case titled "Khair-ul-Bashar versus The State" (2019 SCMR 930) and "Muhammad Boota versus The State and another" (2020 SCMR 196 ) wherein it has been held as under: "It has since been authoritatively settled by this Court in the case reported as The State through Regional Director ANF v. Imam Bakhsh (2018 SCMR 2039 ) that confirmatory forensic conclusions to establish narcotic character of a substance must be supported by protocol/procedure mandated by Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules 2001 and non-compliance of Rule ibid would render the report of the Government Analyst inconclusive, suspi cious and untrustworthy and will not meet the evidentiary assumption attached to a report of the Government Analyst. Confronted with the shortcoming of the anomalous report, the learned Law Officer, nonetheless, still defended the impugned judgment, however , without mark. Prosecution has failed to prove its case against the petitioner to the hilt and it would be unsafe to maintain the conviction."
13. The issue raised in the case in hand is exactly identical, which has been discussed by us in the judgment referred to above. Relying on the principles laid down supra , this appeal is allowed , the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from jail forthwith, if not required to be detained in connection with any other criminal case.