Muhammad Waheed Khan, J.--Through the instant appeal, the appe llant has challenged his conviction and sentence awarded to him by the learned Addl. Sessions Judge, Burewala vide judgment dated 17.10.2018 in case FIR No. 391 dated 11.10.2017 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Saddar Burewala, District Vehari, whereby on conclusion of trial, learned trial Court convicted and sentenced him as under;-- Under Section 9(c) of the Control of Narcotic Substances Act, 1997 awarded four years rigorous imprisonment with fine of Rs.20,000/-. In default thereof, he was ordered to further undergo simple imprisonment for two months.
Benefit of Section 382-B, Cr .P.C. was also extended to him.
2. Allegation against the accused/appellant is that on 11.10.2017 in the area of Chungi No. 5, 505/EB, Burewala within the territorial jurisdiction of Police Station Saddar Burewala District Vheari, he was found in possession of 1040 grams of Charas , hence, this case.
3. After registration of case police investigated the matter and submitted report under Section 173, Cr.P.C. before the learned trial Court by declaring the appellant as guilty . Learned trial Court after completing codal formalities, framed charge against, the appellant, which was denied by him, so, prosecution evidence was summoned.
4. Prosecution in order to prove its case produced as many as five witnesses. PW-1 Sohail Rustam 800/HC is the Moharrar of Police Station Saddar Burewala, PW-2 Javed Akhtar ASI is the complainant of the case, Altaf Hussain SI appeared as P W- 3, who is Investigating Officer of the case, Humaira Tasneem SSET appeared as PW-4 who checked the mental capacity of the appellant being deaf and dumb and Ijaz Ahmad PW-5 is the member of the raiding party . Thereafter , prosecution closed its vidence by producing certain documentary evidence.
5. Appellant was examined under Section 342, Cr.P.C., wherein he denied all the allegations leveled against him.
(He neither opted to record his statement under Section 340(2), Cr.P.C.), nor produced any evidence in his defence.
6. Learned trial Court after appraisal of prosecution evidence convicted and sentenced the appellant in the above stated terms.
7. Learned counsel for the appellant in support of the appeal contends that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt, so under the circumstances, instant appeal may be accepted and appellant may be acquitted of the charge.
8. Conversely , learned Deputy Prosecutor General vigorously controverted the arguments advanced by the learned counsel for the appellant and while supporting the judgment submits that the prosecution remained successful to bring home the guilt of appellant as huge quantity of `Charas' was recovered from his possession, therefore, he has rightly been convicted and sentenced by the learned trial Court, hence, the instant appeal may be dismissed.
9. We have heard the arguments of learned counsel for the parties and perused the record with their assistance.
10. As per allegation against the appellant, 1040 grams of Charas had allegedly been recovered from his possession on 11.10.2017 and he was apprehended by the police at the spot. We have straightway observed that Sohail Rustam 800/HC Moharrar while appearing as PW-1 had categorically state d in his examination-in-chief as under:- "On 16.10.2017 I handed over sealed parcel of sample chars to Javed Akhtar ASI for onward transmission to the office of PFSA vide road No. 873/21 dated 16.10.2017."
Whereas while answering a question put to him by the learned defence counsel during the course of cross- examination stated as under: "Altaf Hussain SI took sealed parcel of sample chars for its onward transmission to the office of PFSA vide road certificate No. 873/21 dated 16.10.2017."
This portion of evidence adduced by PW-1 is a clear departure from his earlier stance that he had handed over the parcel containing Chars to Javed Akhtar ASI for its onward transmission to the of fice of PFSA.
11. So under the circumstances, we observe that this aspect of the case is creating a broken link qua the safe custody of parcel containing contraband allegedly recovered from the possession of the appellant and it is settled by now that any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction. Reference in this regard may be made on the cases reported as "Amjad Ali v. State" (2012 SCMR 577), "Ikrarnullah v.
State" (2015 SCMR 1002 ) and The State through Regional Director ANF v. Imam. Bakhsh and others" (2018 SCMR 2039 ).
12. We have also observed that the Government Analyst, Punjab Forensic Science Agency , Lahore, while preparing report (Ex-PD) had not compl ied with the mandatory provisions of Rule 6 of the Control of Narcotic Substances (Government Analyst) Rules, 2001 and this practice adopted by the office of Punjab Forensic Science Agency while preparing the report is utter disrespect to the ratio decided laid down by the august Supreme Court of Pakistan in case reported as "Khair-Ul-Bashar v. The State" (2019 SCMR 930), in which it has been held in clear terms that report the Government Analyst prepared in consequence of Rule 6 of the Rules ibid must provide three elements which are as under:-- i. Tests and analysis of the alleged drug; ii. The results of the test(s) carried out, arid iii. The test protocols applied to carry out these tests.
These three elements formed the fundamental and the core elements of a valid report prepared by a Government Analyst. Non-compliance of Rule 6 of the Rules ibid and absence of any of the said mandatory elements/requirements would frustrate the purpose and object of the Act ibid, thereby diminishing the reliability and evidentiary value of the report.
13. In another celebrated judgment rende red by the august Supreme Court of Pakistan in case reported as "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039 ), it has been observed as under: "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 eviden tiary 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."
So, keeping in view the case in its totality , we feel that the prosecution remained unsuccessful to prove its case beyond reasonable doubt against the appellant.
14. For the forgoing reasons, instant Criminal Appeal is allowed , conviction and sentence awarded by the leaned trial Court to the appellant Sajid Ali is set aside and he is acquitted of the charge. He is in jail, so, he be released forthwith if not required to be detained in any other case.