Muhammad Waheed Khan, J.--Through the instant appeal, the appellant has challenged her conviction and sentence awarded to her by the learned Addl. Sessions Judge, Burewala vide judgment dated 31.08.2018 in case FIR No. 206 dated 15.04.2018 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Saddar Burewala, whereby on conclusion of trial, learned trial Court convicted and sentenced her as under: Under Section 9(c) of the Control of Narcotic Substances Act, 1997 awarded three years Simple Imprisonment and fine of Rs. 20, 000/-: In default thereof, she was ordered to further undergo simple imprisonment for five months.
Benefit of Section 382-B, Cr.P.C. was also extended to her Brief facts of the case are that on 15.04.2018 Mazhar Fareed ASI along with other police officials upon secret information conducted raid and apprehended the appellant while holding a shopper of blue colour having chars weighing 1303 grams, out of which 65 grams was separated for analysis from Chemical Examiner . Sale proceeds of Rs. 210/- was also recovered from possession of the appellant, hence, this FIR.
2. After completion of investigation, police 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 which was denied by her , so, prosecution evidence was summoned.
3. Prosecution in order to prove its case produced as many as five witnesses i.e. Sohail Rustam 800/C who drafted the FIR appeared as PW-1, Mazhar Fareed ASI who conducted raid appeared as PW-2, Abdul Rehman 1473/C witness of recovery appeared as PW-3, Sharkhanda Pervin 1343/LC who apprehended the appellant appeared as PW-4 and Altaf Hussain SI who conducted the investigation of the case appeared as PW-5. Thereafter , prosecution closed its evidence by producing certain documentary evidence.
4. Appellant was examined under Section 342, Cr.P.C., wherein she denied all the allegations leveled against her She neither opted to record her 'statement under Section 340(2), Cr.P.C., nor produced any evidence in her defence.
5. Learned trial Court after appraisal of prosecution evidence convicted and sentenced the appellant in the above stated terms.
6. 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 be acquitted of the charge.
7. 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 'Chars' was recovered from her possession, therefore, she 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. We have straightway observed that the Government Analyst, Punjab Forensic Science Agency , Lahore, while preparing report (Ex-PF) had not complied 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 report is utter disrespect to the ratio decidendi 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 of 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, and 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.
In a recent pronouncement rendered on 18.12.2019 by the august Supreme Court of Pakistan in case titled "Oaiser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another" (Criminal Petition No. 733 of 2019), it has been further clarified as under: "Therefore, to serve the purposes of the Act and the Rules, the Report of the gove rnment 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)
11. In another celebrated judgment rendered 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.
12. For the forgoing reasons, instant Criminal Appeal is allowed, conviction and sentence awarded by the leaned trial Court to the appellant Mst. Nazia Bibi is set aside and she is acquitted of the charge. She is in jail, so, she be released forthwith if not required to be detained in any other case.