SYED MUHAMMAD ATTIQUE SHAH, J.---This appeal under section 410, Cr.P.C. read with section 48 of the CNSA has been filed by appellant, Ayaz alias Imran against the judgment and order dated 17.9.2020 passed by the learned Judge, Special Court/MCTC, Charsadda, in FIR No.238 dated 25.3.2 019 under section 9(c) CNSA registered at Police Station Charsadda, District Charsadda, whereby he was convicted and sentenced to seven
(07) years Simple Imprisonment with a fine of Rs.1,00,000/- and; in default of payment of fine, to suffer Simple Imprisonment for six (06) months. The benefit of section 382(b), Cr .P.C. was extended to the appellant.
2. On 24.3.2019, the complainant, Iftikhar Khan, ASI, of Police Station Charsadda, along with other police personnel were present on the spot in connection with nakabandi; in the meantime, they signaled and stopped Flying Coach Buxa No.LES-1070-Lahore, the driver disclosed his name as Imran son of Afsar Khan. On search of the vehicle, a sack of light yellow red colour recovered from inside the bonnet of the vehicle, which was lying over the engine, wherein six packets Chars wrapped in a yellow tap weighing six kilograms were lying. The complainant separated 10/10 grams Chars from each packet as sample for FSL and sealed into parcel Nos.1 to 6, whereas the remaining quantity was sealed into Parcel No.7. He also affixed 3/3 seals of monogram MK over the parcels besides placing 1/1 sample monogram inside the parcels. The recovered contraband and vehicle were taken into possession and the accused was formally formally arrested, hence, the instant case.
3. After completion of investigation, challan was submitted. Charge against the accused/appellant was framed to which he pleaded not guilty and claimed trial. Thereafter , the prosecution, in support of its case, examined as many as five (05) witnesses and closed its evide nce. Statement of the appellant was recorded under section 342, Cr.P.C., wherein, he negated the charges levelled against him and professed innocence.
4. The learned trial court after hearing arguments of both the learned counsel for the parties found the appellant, guilty of the charge levelled against him and; thereby he was convicted and sentenced as above.
5. Feeling aggrieved of the impugned judgment and order of the learned trial Court, the appellant has filed the appeal in hand for setting aside of the impugned judgment and order dated 17.9.2020 and prayed for his acquittal from the charge levelled against hith.
6. Learned counsel for the appellant and learned A.A.G. appearing on behalf of the State heard and record gone through.
2(sic). Case of the prosecution is that, the complainant was present on the spot along with other police personnel when Flying Coach Buxa No.LES-1070- Lahore came there and was stopped for the purpose of checking; the driver disclosed his name as Imran son of Afsar Khan. The complainant, on search of the vehicle, recovered a sack of light yellow red colour from inside the bonnet of the vehicle, which was lying over the engine wherein he found six packets Chars wrapped in a yellow tap. The recovered contraband was weighted through digital scale, which came out to be six kilograms as a whole. He separated 10/10 grams Chars from each packet as sample for FSL and sealed the same into parcel Nos.1 to 6, whereas the remaining quantity was sealed into Parcel No.7. The parcels so prepared by the complainant were affixed with 3/3 seals monogram in the name of MK. He also placed 1/1 sample monogram MK inside the parcels. The recovered contraband and vehicle were taken into possession vide recovery memo Ex.PW .1/2 in presence of the marginal witnesses and the accused was formally arrested vide card of arrest Ex.PW .1/1 and; murasila Ex.PW .1/3 was drafted and sent to the Police Station through Daud Constable No.658 for registration of case.
3. Complainant Iftikhar Ahmad ASI appeared before the learned trial Court and examined as PW.1. In his examination in chief, he narrated the same story as reported by him in the murasila Ex.PW .1/3. In cross- examination, he admitted that; "It is correct that the vehicle in question was passenger vehicle usually used for taking passengers. Self-stated that there was no passenger sitting in that vehicle at the time of occurrence ." He further admitted that; "It is correct that in the entire judicial file nowhere it is mentioned that driver was alone in the vehicle or no passenger was present in the said vehicle ." Regarding monogram, he stated that; "My personal monogram has an inscription of MK. It is correct that my name is Iftikhar Ahmad. It is incorrect to suggest that MK is not my monogram ." On the other hand, PW.3 Madad Khan, Inspector/CIO who conducted investigation in the instant case categorically admitted that MK monogram is the abbreviation of his name, which is lying in the PP. He further admitted that; "The MK monogram lying in the PS norma lly and whenever requires by any office the same requisition from the PS; however , at the relevant time it was present in the PP." He further stated that;. "MK monogram available in case of need in the PS and PP and also after need remain in my custody ." No doubt, the said monogram does not signify the name of the seizing officer PW-1 namely Iftikhar Ahmad ASI and; no explanation was offered as to why the said parcels did not contain the monogram of seizing officer, as such, has created a serious doubt regarding the seizer of contraband. 2015 SCMR 291 Akhtar lqbal v . The State .
4. Further , PW.1 mentioned the fact of placing 1/1 sample monogram in the murasila Ex.PW .1/3, recovery memo Ex.PW .1/2 but in his examination in chief, he did not disclose such fact and in cross-examination, he admitted that; "I kept 1/1 monogram inside each parcel ." He also went on to say that; "It is incorrect to suggest that if the case property having no monogram inside the parcel the same would not seal by me on the spot." The fact of placing 1/1 sample monogram MK inside the parcels was also admitted by PW.2 Daud Constable No.658 in his cross- examination but, when learned trial Court de-sealed the case property i.e. parcel No.6 on the request of learned counsel for the accused, there was no sample monogram inside the parcel and; thus, it cannot be held that the case property produced before the learned trial Court was the same which was recovered from the vehicle. -
5. Another most important aspect of the case is that, PW.1 stated that; "Nothing was handed over to the I.O. when he came to the spot for investigation ." This fact has been contradicted by PW.2 Daud Constable No.658 in his cross-examination by admitting that; "When the I.O. come to the spot case property was present on the spot. The case property including the vehicle was delivered to the Investigating Officer on the spot."
6. Admittedly , nothing has been recovered from the appellant like Driving License or any other document which suggests that he was driver of the said vehicle. Even route permit of the vehic le has not been obtained as to whether the said vehicle was any permission to ply on Peshawar Charsadda Road or not.
7. Now coming to the report of FSL (Ex-P7.) that; whether the same fulfills the requirement of Rule 6 of the (Government Analysts) Rules, 2001 or otherwise. The ibid report upon its perusal does not signify the test protocols that were applied to carry out the test; therefore, the mandatory requirement of law provided by Rule 6 has not been complied with in its letter and spirit; the non-compliance of the ibid Rule would render the said report inconclusive, suspicious and untrustworth y and; the same could not be relied upon qua maintaining the conviction and sentence of the convict/appellant in the circumstances, as it lacks evidentiary value. 2019 SCMR 930 Khair -Ul- Bashar v. The State and 2020 SCMR 196 Muhammad Boota v. The State and another . The ibid proposition was again reaffirmed by the august Apex Court in Qaiser Javed Khan's case reported in PLD 2020 Supreme Court 57.
The relevant portion is reproduced below for ready reference; "Now coming to the report of FSL (EX-Pl.) that; whether the same fulfills the requirement of Rule 6 of the (Government Analysts) Rules, 2001 or otherwise. The ibid report upon its perusal does not signify the test protocols that were applied to carry out the test; therefore, the mandatory requirement of law provided by Rule 6 has not been complied with in its letter and spirit and; the non-compliance of the ibid Rule would render the said report inconclusive, suspicious and untrustworthy; which lacks the evidentiary value and the same could not be relied upon qua maintaining the conviction and sentence of the accused/ appellant. 2019 SCMR 930 Khair -ul-Bashar v.
The State and 2020 SCMR 196 Muhammad Boota v. The State and another. PLD 2020 Supreme Court 57 Qatser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another . The relevant portion is reproduced below for ready reference;-
6. The Report of the Government Analyst in this case specifies only the tests applied and not the protocols thereof.
The term "protocol" has not been defined in the Rules. Its dictionary meaning is: "A plan of scientific experiment or other procedure.'" It is also referred to as "the precise method for carrying out or reproducing a given experiments."
These definitions are in line with the elaboration of the term "protocol" given in Imam Bakhsh wherein the Court stated the expression "protocol" to mean an explicit plan of an experiment, procedure or test. It is clarified that. "protocol" is, therefore, a recognized standard method or plan for carrying' out the test applied to ascertain the nature of the substance under examin ation. No test can take place without a protocol. The Report of the Government Analyst must show that the test applied was in accordance with a recognized standard protocol. Any test conducted without a protocol loses its reliability and evidentiary value. Therefo re, to serve the purposes of the Act and the Rules, the Report of the Government Analyst must contain (i) the tests applied (ii) the protocols applied to carry out these tests (iii) the result of the test(s). This sequence, for clarity and better understanding can be envisaged as follows: Test Applied Protocols (applied to carry out the tests)Results of the test(s)
7. Once the above three requirements under Rule 6 are contained in the Report of the Government Analyst, any ambiguity therein may be resolved by the Trial Court by exercising its power under Proviso to section 510, Cr. P. C.
The said provision states that the Court may, if it considers necessary in the interest of justice, summon and examine the person by whom such report has been made. Therefore, the Trial Court while examining the said Report has the power to summon the Government Analyst in case there is any ambiguity in the said Report and seek clarification thereof. This clarification can only be based on the existing record of the Government Analyst and does not mean to allow the Government Analyst to conduct a fresh test or prepar e another Report, for that would amount to giving the prosecution a chance of filling the gaps and lacunas in the Report. The Trial Court must also be mindful of the legal position that the per se admissibility of the Report i.e. without examining the Analyst (expert) does not vouch for its evidentiary value, as observed in Khair -ul-Bashar . The Courts are free to examine the contents of the Report and to assess its evidentiary value (weight), a matter distinct from its admissibility .
8. The Report of the Government Analyst in the instant case does not specify the protocols of the tests applied and thus does not meet the requirements of the law as interpreted by this Court in the cases of Imam Bakhsh and Khair -ul-Bashar (supra). The said Report cannot be relied upon for the conviction of the petitioner . Therefore, the petition is converted into an appeal and allowed. The conviction and sentence of the petitioner are set aside. He shall be released forthwith if not required to be detained in any other case."
8. Given that huge quantity of narcotic has purportedly been shown recovered from the vehicle in question which was allegedly driven by the appellant; albeit, safe administration of justice mandate s the Courts to be conscious of not the quantity of the contraband; but the quality of evidence produced before the Court in reaching to a correct and just decision of the case. 2010 SCMR 841 Shahzada v. The State and 2020 PCr.LJ 321 (Peshawar) Abdul Baqi v The State .
9. Therefore, in the given circumstances, this Court has no hesitation in holding that; prosecution has miserably failed to prove its case against the convict/appellant beyond reasonable doubt. The prosecution is under bounden duty to establish its case through unimpeachable evidence beyond reasonable doubt. The prosecution witnesses remained inconsistent in their statements, hence, the evidence so put forth by the prosecution is not only full of contradictions; but, is also based upon surmises and conjectures, which has created serious doubts in its case, therefore, the same could not qualify to be relied upon qua maintaining conviction and sentence of the convict/appellant under the safe administration of justice: Moreover , it is also settled that; whenever a reasonable doubt occurs in the case of prosecution its benefit is to be given to the accused, as a matter of right and not as a grace.
7(sic) The prosecution could not offer any explanation regarding the said glaring variation much less plausible and justifiable, which indeed has created a serious dent in its case. As earlier discussed that; where punishment for an offence charged with is death or life impri sonment, the evidence adduced by the prosecution before the trial Court must be of unimpeachable character; howbeit, the same is not the case here.
8(sic). Accordingly , we accept the appeal in hand, set-aside the impugned judgment and order , convicting/ sentencing the appellant, Ayaz alias Imran as rendered by the learned trial Court vide order dated 17.9.2020 and acquit him from the charge levelled against him. He is in custody and be set free, if not required in any other case. .
9(sic). These are the reasons of our short order announced in open Court on even date.