RAJA SHAHID MEHMOOD ABBASI, J.----This appeal is directed against the judgment dated 29-06.2015, passed by the learned Additional Sessions Judge, Taxila, whereby , in case FIR. No. 248 dated 03-06-2012, registered at Police Station Saddar Wah, Rawalpindi, under Section 9(c) of the Control of Narcotic Substances Act, 1997, the learned trial court convicted Asif Khan, appellant and sentenced him is under:- Under Section 9 (c) of the Control of Narcotic Substances Act, 1997, the appellant was awarded sixteen (16) years R.I. with fine of Rs.60,000/- and in case of default of fine, to further undergo six (06) months S.I.
The benefit of section 382-B Cr .P.C. was also extended to the appellant.
2. Succinctly , the allegations leveled against the appellant are that on 03-06-2012 at about 08:15 p.m., Sheikh Muhammad Aslam, SI (PW.4) along with other police officials in connection with patrolling duty, was present at Wah Garden G.T. Road, when a car bearing registration No. 264/ADZ, driven by young boy came from Peshawar side was stopped. The person who was sitting on the driving seat disclosed his name Asif Khan and upon search of the vehicle, 36 packets of charas from secret cavities, of gas cylinder , installed in the car, were recovered and upon weighing, weight of the recovered charas was found 40 Kgs, each packet contained 12/12 lither and 5/5 grams of charas from each lither were separated for chemical analysis. Hence, the FIR.
3. The appellant was interrogated and challaned to face the trial. The charge was framed against the appellant on 15-08-2012, to which he pleaded not guilty and claimed trial. So, the prosecution was directed to produce its evidence. The prosecution produced five witnesses including Sheikh Muhammad Aslam, SI/complainant (PW.4), the recovery witness Junaid Ahrnad 8235/C (PW.5) and after tendering in evidence ;port of Chemical Examiner (Ex.PF) closed its evidence. The learned Additional Sessions Judge, Taxila, after recording the statement of the appellant under section 342 Cr.P.C. and hearing the arguments, passed the impugned judgment, whereby , the appellant was convicted and sentenced as mentioned and detailed above.
4. Feeling aggrieved of the impugned judgment, the instant appeal has been preferred by the appellant.
5. Learned counsel for the appellant in support of this appeal contends that appellant has falsely been implicated in this case; that there are serious contradictions in the statements of the prosecution witnesses, which are sufficient to negate the prosecution case; that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, the appellant may be acquitted from the charge while setting aside the impugned judgment.
6. On the other hand, learned Deputy Prosecutor General has supported the impugned judgment of the learned trial court by contending that the prosecution has proved its case against the appellant beyond the shadow of any doubt, therefore, the appellant was rightly convicted and sentenced by the learned trial court; that the appellant could not establish any mala fide on the part of the prosecution for his false involvement in this case; that the prosecution witnesses stood the test of lengthy cross examination but nothing favourable to the appellant could be brought on the record; that in view of section 29 of the Act ibid, the prosecution has successfully discharged the initial onus of proof and the appellant has failed to prove his innocence; that there is no substance in the present appeal, therefore, the same may be dismissed.
7. Heard. Record perused.
8. The prosecution in order to prove the guilt against the appellant has examined as many as five witnesses, out of which Sheikh Muhammad Aslam, SI (PW.4) and Junaid Ahmad 8235/C (PW.5) were the star witnesses of the prosecution case, who were directly related to the recovery proceedings. A glimpse of prosecution evidence transpired that both the abovesaid star witnesses of instant case have remained inconsistent with regard to the recovery of contraband from the appellant at the spot. According to Sheikh Muhammad Aslam SI (PW.4), am appellant was apprehended from abovesaid car and during search of the vehicle, from secret cavities of gas cylinder , 36 packets of charas were recovered, on weighing, it was found 40 Kgs. Each packet contained 12 lithers.
Sheikh Muhammad Aslam, SI (PW.4) separated charas 05 grams from each lither of charas and prepared 432 sample parcels. He sealed the 36 packets of charas in sealed parcel P.1/1-36 each packet contained 12 lithers and took the same vide recovery memo (Ex.PB) but when during statement of Sheikh Muhammad Aslam, SI (PW.4), on the request of learned counsel for the defence, the case property was de-sealed and the observation of the court was as under:- "...After measuring the count, quantity of packets and lithers: contained therein, it has been observed that 39 large packets, three small packets and numero us pieces of charas cut from the lithers have been found and number of lithers contained in all the packets was also found as 443, whereas after weighing, weight of the alleged charas contained in the parcel has been found as 30 Kgs and. 924 grams..."
During cross examination, Sheikh Muhammad Aslam, SI (PW.4) has also admitted this fact that when the case property was de-sealed, 15 packets contained 12 lithers each, 16 packets is containing 11 lithers each, four packets containing 13 lithers each, one packet containing 15 lithers, three packets containing 10 haters each were found. He further stated that three small cake type packets were included in 39 packets. It therefore, evident that according to the statement of Sheikh Muhammad Aslam, (PW.4) 36 packets of charas, each packet contained 12 tither , total weighing 40 Kgs was recovered from the gas cylinder of the car and from each lither , he separated 5/5 grams of charas for chemical analysis but as stated above when the case propert y was de-sealed in the court the number of lithers contained in all the pack ets was found as 443 and total weight of the contraband came to 30 Kgs and 924 grams. Moreso number of lithers were also different in each packets. It is further admitted that the prosecution has failed to bring on record the individual weight of each packet of charas and lithers, which fact is irreconcilable, went root of the case and badly damaged the case of the prosecution. In this manner , it cannot be determined whether the case property produced before the court was the same property which was taken into possession from the accused at the time of occurrence and subsequently handed over to Moharrar malkhana. The depositions of the aforementioned star witnesses of prosecution regarding recovery of contraband at the spot, makes the case of the prosecution highly doubtful.
9. We have carefully perused the report of Chemical Examiner , Rawalpindi (Ex.PF) and we have no doubt in our mind to observe ; that the report of analyst is vague since it does not show the nature of protocols observed and test applied, hence, the said agency has violated the Rules 5 and 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001. A complete Mechanism has been given in Rules 5 and 6 of the Control of Narcotic Substances (Government Analy sts) Rules, 2001, the Chemical Examiner is required, to adopt complete procedure and then the report is to be submitted after referring-necessary protocols and mentioning the tests applied and their results. In the instant case, required test was not applied on the basis of which chemical examiner has concluded that the sample sent to him for chemical examination contained charas. The Chemical Examiner has failed to provide the details that how much quantity , he has tested and when the report 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 and such report of Chemical Examiner would loses its sanctity and that cannot be relied upon for the purposes of conviction. Guidance in this respect can be sought from "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039 ) and "Khair -ul-Bashar v. The State" (2019 SCMR 930). Learned Deputy Prosecutor General present in the Court failed to furnish any explanation regarding such lapses of the prosecution. It is by now well settled that since the provisions of the Control of Narcotic Substances Act, 1997 provides stringent punishments, therefore, its proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused. Reliance in this respect may be made to the case of Muhammad Hashim v. The State (PLD 2004 SC 856). Dealing with the same proposition, the Hon'ble Supreme Court of Pakistan held in the case of Ameer Zeb v. The State (PLD 2012 SC 380) that harder the sentence, stricter the standard of proof.
10. In the light of above discussion, the instant appeal (Criminal Appeal No. 965 of 2018), is allowed, impugned judgment dated 25-06-2019, passed by the learned Additional Sessions Judge, Taxila, is hereby set aside and Asif Khan, appellant is acquitted of the charge by extending him the benefit of doubt. The appellant is in custody , he be released forthwith, if not required in any other case. The case property i.e. charas shall be destroyed in accordance with law , as observed by the learned trial Court, in the judgment impugned.