Syed Shahbaz Ali Rizvi, J.--Muhammad Farhan, appellant, through instant appeal, has assailed the judgment dated 19.6.2019 passed by the learned Addl. Sessions Judge/Judge Special Cour t, CNSA, Sargodha in case FIR No. 649 dated 25.12.2016, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station Urban Area, District Sargo dha whereby , he was convicted under Section 9(c) of the Act ibid and sentenced to rigorous imprisonment for two years with fine of Rs. 15,000/- and in default thereof, to undergo simple imprisonment for three months. The appe llant was however , awarded the benefit of Section 382-B of the Code of Criminal Procedure, 1898 whereas, the learned trial Court acquitted Asif and Qasim, co-accused of the appellant, while accepting the application moved under Section 265-K of the Code of Criminal Procedure, 1898 vide order dated 3.2.2018.
It is pertinent to mention here that during the hearing of Crl. Misc. No. 1 of 2019 , petition for suspension of execution of sentence, it was found that the appellant was not sentenced as per the sentencing policy laid down by this Court in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362) and affirmed by the Hon'ble Supreme Court of Pakistan in the case of Ameer Zeb v. The State (PLD 2012 SC 380) so, vide order dated 16.10.2019, a notice was issued to the appellant to show-cause as to why his sentence may not be enhanced as a result whereof, office prepared the file of Suo Moto Crl. Revision No. 62647 of 2019 in this regard.
Both these cases are being decided through this single judgment.
2. Brief facts of the case, as per crime report, are that on 25.12.2016 at about 2.45 p.m, on suspicion, the appellant was apprehended and during his search, 1025 grains of ` Charas' was recovered from him.
3. After investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial Court, after observing pre-trial codal formalities, framed the charge against the appellant on 8.6.2017 to which he pleaded not guilty and claimed trial. The learned trial Court, after completion of trial, vide it judgment dated 19.6.2019, found the appellant guilty , convicted and sentenced him as mentioned above.
4. Arguments heard. Record perused.
5. Perusal of report of the Punjab Forensic Science Agency . Lahore (Exh-PG) reveals that the parcel of contraband was received on 9.1.2017 for chemical analysis purpose through Khalid Mehmood, ASI (PW-1) who was the complainant and witness of recovery as well and also that after sampling for analy sis, the remaining portion of the bulk contraband was sealed and handed over to the evidence submitting person i.e. Khalid Mehmood, ASI (PW-1) but the whole prosecution evidence is silent to the effect that the parcel of contraband (P-1) was ever brought back from the office of the Punjab Forensic Science Agency to the police station or the `Malkhana ' Saddar . Even the prosecution case is mysteriously silent about the transmission of parcel of contraband (P-1) to the learned trial Court which lead us to hold that the prosecution remained fail to keep the chain of circumstances qua the safe custody of parcel (P-1), intact.
6. We have also observed that the Government Analyst, Punjab Forensic Science Agency , Lahore while preparing the report (Exh-PG) has not complied with the mandatory provisions of Rule 6 the Control of Narcotic Substances (Government Analysts) Rules, 2001. The Hon'ble Supreme Court of Pakistan, in the case of Khair-ul-Bashar v.
The State (2019 SCMR 930) has held that the report of the Government Analyst due in consequence of Rule 6 must provide for (i) tests and analysis of the alleged drug/narcotic (ii) the results of the tests carried out and (iii) the test protocols applied to carry out these tests and that these three elements form the fundamental and the core elements of a valid report prepared by a Government Analyst. It has also been held in the said case that non- compliance of Rule 6 and absence of any of these mandatory elements/requirem ents frustrates the purpose and object of the Act. In the case of The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 3039), in Paragraph No. 15, the Hon'ble Supreme Court of Pakistan was pleased to observe as under: "15. 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 determinatio n of the seized substances with the full protocols adopted to conduct such tests." (underlining for emphasis is ours)
In a recent judgment passed in the case of Muhammad Boota v. The State and another (2020 SCMR 196), the Hon'ble Supreme Court of Pakistan reitera ted the same principal. In this case, the report (Exh-PG) prepared by the said Agency though carries the names of the tests yet it does not provide sepa rate result of each test applied except a concluding result. The Analyst has not bothered even to mention the test protocols applied in carryings out the required tests which of course is against the mandate of Rule 6 hence, it is not safe to rely upon the report of the Government Analyst (Exh-PG). We are of the considered opinion that the appellant in such a case of narcotics cannot be convicted and sentenced only on the basis, of oral assertions unless it is established with certitude that the material allegedly recovered from the possession of the appellant was a narcotic that, in our view, prosecution failed to do.
7. For what has been discussed above, Crl. Appeal No. 41155 of 2019 is allowed, conviction and sentence awarded to Muhammad Farhan, appellant by the learned trial Court is hereby set aside and he is acquitted of the charge, levelled against him. He is in custody , be released forthwith if not required to be detained in any other case.
8. In view of our above findings/observations, Crl. Revision No. 62647 of 2019 is also dismissed and show-cause notice issued to Muhammad Farhan, appellant is hereby re-called.