Sardar Muhammad Sarfraz Dogar .--At the conclusion of trial in case FIR No. 18/2017, dated 21.3.2017, offence under Section 9(c) of The Control of Narcotic Substances Act, 1997, registered with the Police Station RD/ANF , Lahore, the appellant, Ch. Muhammad Aslam was convicted by the learned Special Court (CNS) Lahore, vide judgment dated 07.1.2019, under Section 9(c) of The Control of Narcotic Substances Act, 1997, and sentenced him to suffer Nine Years R.I. with direction to pay Rs. 90,000/- (rupees ninety thousands only) as fine and in case of default whereof to further undergo S.I. for six months. The benefit of Section 382-B, Cr.P.C. was also extended to the appellant. However , the learned trial Court vide same judgment dated 07.1.2019 has ordered to return the Honda Civic Car No. PS-ICT/358- Islamabad (P-2) to its original owner against receipt and identification.
2. The appellant has challenged his above-said conviction and sentence before this Court by way of filing the Criminal Appeal No. 3309 of 2019 under Section 48 of The Control of Narcotic Subs tances, Act, 1997, whereas, the State has also preferred Criminal Appeal No. 6469 of 2019, calling in question the impugned judgment to the extent of return of car to its original owner . We propose to decide both these matters together through this consolidated judgment.
3. Pithy facts of the prosecution case as propounded by the complainant Mumtaz Hussain Inspector (PW-3) through complaint (Exh.P A/1) on the basis whereof formal FIR (Ex.P A) was chalked out are that on 21.3.2017, in response to an information departed by Commander Intelligence Wing Pakistan Rangers Punjab Zarar Shaheed Road Lahore, a raiding party including complainant (PW-3), Saddam Hussain S.I. Sakhi Hussain, Sabir Hussain, Adnan Farooq, Umar Draz constables, Muhammad Shakeel constable driver under supervision of Muhammad Nawaz Assistant Director/ANF was constituted, which reached at Intelligence Wing Pakistan Rangers Punjab zarar Shaheed Road and met with DSR Mushtaq Ahmed. From there, Shabbir Hussain S.I/4090, alongwith other Ranger Officials were also included in the raiding party and the said party reached at Rangers Check-Post Burki Bridge BRB Canal Burki Road Lahore and started surveillance. At about 3.30 p.m., a car bearing Registration No. PS- ICT/358-Islamabad alighted there, which was signaled to stop and the person driving the said car was overpowered, who disclosed his name as Ch. Muhammad Aslam (appellant). On interrogation, the appellant got five packets of heroin recovered, each weighing one kilogram total weighing five kilograms from the secret cavities of car installed beneath the rear seat of the car. Out of recovered heroin, ten grams from each packet was extracted for chemical analysis and sealed into parcels. The remaining heroin was also sealed into a parcel. The recovered heroin and sample parcels were taken into possession vide recovery memo. (Exh.PB), the personal belongings were taken into possession vide recovery memo. (Exh.PD) and the car was taken into possession vide recovery memo.(Exh.PC).
4. After completion of investigation, the appellant was recommended for trial by the Investigating Officer while furnishing report under Section 173, Cr.P.C. before the Court of competent jurisdiction. The learned trial Court, while taking cognizance of case framed formal charge against the appellant, to which he pleaded not guilty . In order to prove the charge against the appellant, prosecution examined four witnesses and also tendered certain documents including reports of NIH (Exh.PF/1-5) as part of prosecution evidenc e. Sabir Hussain constable and Shabbir Hussain S.I/4090 were examined as CW-1 & CW-2. On completion of prosecution evidence, statement of the appellant was recorded under Section 342 of Cr.P.C. through which he denied all the allegations against him and pleaded his innocence. The appellan t did not opt to get his statement recorded in terms of Section 340(2) of "Cr.P.C." however Durr-e-Nayab (DW-1), Muhammad Khurram Shahzad (DW-2) were examined besides tendering certain documents in defence evidence. On culmination of trial, the appellant was convicted by way of impugned judgment as is referred hereinabove. Hence, these appeal.
5. Arguments advanced by the learned counsel for the appellant as well as learn ed Special Prosecutor for ANF have been heard and the record has been perused minutely .
6. The occurrence in the present case,' according to the-prosecution, had taken place on. 21.3.2017, at 3.30 p.m.. when the complainant alongwith other officials- of ANF and Rangers intercepted a car at Rangers Check-Post, Barki Bridge, Canal BRB, Barki Road, which was driven by the appellant, and five packets of heroin were recovered from the secret cavity of said car on the pointation of the appellant. Record reflects that the FIR, in the instant case, was chalked out on the same day at 6.15 p.m. i.e. after two hours and forty-five minutes of the alleged occurrence despite of the fact that the Police Station was at a distance of fifteen kilometers from the place of occurrence and the complainant (PW-3) in his cross-examination has admitted that the alleged place of occurrence situates at a distance which requires 45 minutes to reach from Police Station. Such delay in chalking out of FIR has not been explained by the prosecution. The complainant (PW-3), while justifying the said delay in lodging the FIR, has mentioned the time as 5.30 p.m. in the bottom of complaint (Exh.P A/1) but the fact remains that the said insertion of time in the bottom of complai nt raised a question mark on the perform ance of complainant himself as he took two hours to extract five packets of heroin from the car driven by the appellant.
7. It is noticed that in examination in chief, the Complainant (PW-3) stated that after the occurrence and arrest of appellant, the rangers officials were relieved from the place of occurrence and while facing cross-examination, he (PW-3) deposed that on the day of occurrence, he visited the office of Rangers Intelligence Wing Zarar Shaheed Road, Lahore at 1.30 p.m. and after the recovery from the appellant he never visite d the said office. He (PW-3) also negated about any press conference in the office of Rangers or at the alleged place of occurrence. No media of any channel came there to cover the alleged recovery/incident. Sabir Hussain constable (CW-1) in his depositions stated that he reached the place of occurrence at 6.30 p.m. and in his presence neither the appellant was apprehended nor any recovery was made from him. When he (CW-1) reached the place of occurrence he saw that the officers of ANF and Rangers caught hold one person alongwith one car Honda Civil of mityala colour and there were lying some parcels. Shabbir Hussain SI/4090 (CW-2) also deposed that the entire proceedings of the case were carried out at the place of occurren ce in his presence. Contrary to all abov e, a video clip, telecasted on a news channel (City 42) on 21.3.2017, was exhibited in the evidence as Exh.DC, which reveals that the ANF and Rangers Officers/of ficials alongwith the appellant were present in the Rangers Headquarter . Meaning thereby , the proceedings were not conducted at the time and place of occurrence as alleged by the prosecution, perhaps for this reason the complainant (PW -3) have consumed time of two hours in drafting the complaint (Exh.P A/1).
8. In the given state of affairs, it is crysta l clear that the alleged occurrence has not taken place at 3.30 p.m. as claimed by the prosecution. In view of above, it has come on record that the complaint (Exh.P A/1) was neither prepared at the place of occurrence nor at the alleged time of occurrence. So, no legal sanctity can be attached to such document, which lay basis of registration of this case; in this regard guidance can be had from the case of Abdul Bus it v. The State and others (2018 SCMR 1425 ). Nutshell is that registration of the case at the alleged time and place has not been proved in this case by the prosecution. Now in this scenario, the prosecution has failed to prove its case on the dimension of recovery of narcotics from the alleged time I and place of occurrence.
9. Record further demonstrates that the complainant (PW-3) in his examination in chief deposed that he handed over the case property to Moharrar for safe custody . He (PW-3) remained silent with regard to handing over the sample parcels to the Moharrar for keeping the same in safe custody , as such, safe transmission of sample parcels from the alleged place of recovery to the Police Station has also become doubtful.
10. The minute perusal of reports of National Institute of Health Islamabad (Exh.PF/1-5) established that the same do not show the extent of protocols, as such, the same are vague in nature. At this stage, it will be expedient to reproduce the provisions of Rule 6 of the Control of Narcotic Substances (Govt. Analysts) Rules, 2001, which lays down the procedure to be followed by the Analyst after test or analysis on receipt of the sample, as under: "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 inform- II"
The above quoted provision of law makes it mandatory for the Analyst that after completion of the test or analysis, forthwith supply report to the sender in quadruplicate as specified in Form-II of the result of the test or analysis, together with full protocols of the tests applied as specified in Form-II. But in the case under discussion, the reports (Exh.PF/1-5) reflected a line the test analysis protocols are in line with United Nations Office on Drugs and Crime (UNODC) guidelines of 1987. 1994, 1998. 2006 and 2008. The said reports (Exh.PF/1-5) are silent with regard to the protocols and results of the test applied for. The Paragraph No. 1 of Form-II provides full protocols of each test/analysis in the following manner: "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:"
It shall be deemed to be full and sufficient compliance with the requirement of the rule in respect of the supply of "protocols of the test or analysis applied" for narcotic substances, if the tests or methods of analysis applied, references to the full protocols of the specific tests are given in the report. Now the relevant part of the reports of the analyst may be noticed. It reads as under: "The submitted sample is identified to contain Heroin."
Since the samples did not conform to test protocols, it was declared not to be teste d on standard quality as defined in the rules. It is thus also not a sufficien t compliance as the test applied was not mentioned in the reports. It is relevant to mention here that Rule 6 of the Control of Narcotic Substances (Govt. Analysts) Rules, 2001 contemplates analysis and test as two different things. The rule and the form require that the full protocol of the test should be stated after test or analysis. On the perusal of the above reports (Exh.P F/1-5) the same cannot be said to be full and complete, until disclosing the full protocols of the test applied, except the bare opinion that the samples contain Heroin. There is nothin g on the basis of which we can assess the truthfulness of the reports (Exh.PF/1-5). Reliance is placed on the judgments of the Hon'ble Supreme Court of Pakistan in the case of Ikram Ullah and others v. The State (2015 SCMR 1002 ), The State through Regional Director ANF vs. Imam Bakhsh and others (2018 SCMR 2039 ) and in the case of Khair-ul-Bashar versus The State (2019 SCMR 930), the Hon'ble Supreme Court of Pakistan had held that: "In the present case examination of the report of the Government Analyst mentions the tests applied but does not provide their results except a concluding result, presumably of all the tests, which is not sufficient. The Report also does not signify the test protocols that were applied to carry out these tests.
Hence, the mandatory requirement of law provided under Rule 6 has not been complied with and, thus, it is not safe to rely on the Report of the Government Analyst dated 18.02.2016."
The report of the Analyst containing his opinion must, therefore, disclose the full protocols carried out and each test applied on which his opinion is based and the reason in support of the opinion. The opinion rendered by the Analyst is no evidence unless the same is suppor ted by the reasons. The reports of Nation al Institute of Health, Islamabad (Exh.PF/1-5) except an opinion that samples contain "Heroin" there is no other data as prescribed in law. Since the patent infirmity has been noticed in, the reports (Exh.PF/1-5) which is found to be fatal to the prosecution case. In such eventuality it is not possible to uphold and sustain the judgment of conviction and sentence against the appellant.
11. In view of above discussion, we have reached at the conclusion that prosecution could not discharge its initial burden to prove the charge against the appellant and failed to prove its case again st the appellant beyond shadow of doubt. As per criminal justice, the benefit of every doubt is to be extended in favour of the accused. In the case of Muhammad Akram v . The State (2009 SCMR 230 ), it is held as under: "Benefit of doubt...Principles--For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts--single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
In the case of Muhammad Zaman v . The State (2014 SCMR 749 ), it is held as under: "Needless to say that even a single doubt if found reasonable, is enough to warrant acquittal of the accused."
We are of the considered view that in the given circumstances, I it is not in the consonance with the dictates of justice to uphold the G conviction and sentence awarded to the appellant.
12. So far as the Criminal Appeal No. 6469 of 2019 lodged by the State impugnin g the judgment dated 07.1.2019 to the extent of handing over the vehicle Bearing No. PS-ICT/358-Islamabad to its original owner is concerned, suffice it to say that the provisions of Section 74 of The Control of Narcotic Substances Act, 1997, does not prohibit the release of vehicle involved in the trafficking of narcotic to its owners, who is not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime. Learned Special Prosecutor for ANF remained unable to point out any material on the record to establish that the original owner of the vehicle had any knowledge about the narcotics being allegedly transported in his vehicle. Besides above, the prosecution has also failed to prove its case against the appellant/accused, who allegedly transported the narcotics in the said vehicle, beyond any reasonable doubt, therefore, the learned trial Court has rightly passed the impugned order to the extent of return of said car to its original owner .
13. The final and eventual outcome of the entire discussion is that we are unable to agree with the findings and conclusions reached at by the learned trial Court with regard to the conviction of the appellant and the same are unsustainable which vitiates the impugned judgment. Accordingly the appellant deserves to be given benefit of doubt and findings in this regard are required to be set aside. We, therefore, allow the Criminal Appeal No. 3309 of 2019 lodged by the appellant Ch. Muhammad Aslam challenging his conviction and sentence. Resultantly , the judgment of the learned trial Court dated 05.5.2012 to the extent of conviction and sentence awarded to appellant Ch. Muhammad Aslam is set aside, and the appellant is acquitted of the charge. He is in jail. He be released forthwith if not required in any other case.
14. The Criminal Appeal No. 6469 of 2019 lodged by the State having no merits is dismissed.