Syed Shahbaz Ali Rizvi, J:--Through this appeal, Mst. Shama Touqeer , appellant has assailed the judgment dated 03.04.2014 assed by the learned Addl. Sessions Judge, Sialkot in case FIR No. 446 dated 14.12.2013, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station Kotwali district Sialkot whereby , the appellant was convicted under Section (c) of the Act ibid and sentenced to rigorous imprisonment for eight cars with fine of Rs.5,00,000/- and in default thereof, to unde rgo Simple imprisonment for six months. The appellant was however , warded the benefit of Section 382-B of the Code of Criminal procedure, 1898.
2, Per prosecution, the brief facts of the case, as disclosed by Khalid Mahmood , SI, complainant (PW-4) in his complaint (Exh-P A) the basis of which formal crime report (Exh-P1) was registered , are at on 14.12.2013 at about 09.15 a.m. on spy information, the appellant was apprehended and during her personal search, 5360 ams Charas Girda, 400 grams Charas, 430 grams opium, electronic ale and Rs.91850/- were recovered from her possession.
3. Mst. Shama Touqeer , appellant was arrested in this case on 14.12.2013. 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 01.02.2014 to which she pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as seven witnesses during the trial. Mst. Bushra Shafique 1612/LC (PW-1) and Bashir Ahmad, ASI (PW-2) are the recovery witness es. Muhammad Yaqoob 1750/C (PW-3) transmitted sealed parcels said to contain Charas/opium to the office of Punjab Forensic Science Agency , Lahore. Khalid Mahmood, SI (PW-4) is the complainant, Iftikhar Ahmad, SI (PW-5) is the Investigation Officer of the case whereas, Muhammad Javaid 1830/HC (PW-6) is the Moharrer of the police Station and Ghulam Haider ASI (PW-7), being duty officer, on receipt of complaint (Exh-P A), drafted formal crime report (Exh-P1) without any addition or omission on his part. The learned Assistant District Public Prosecutor after tendering the report of the Punjab Forensic Science Agency , Lahore (Exh-PE), closed the prosecution evidence.
5. After completion of prosecution evidence, the statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, she denied the allegation levelled against her, professed her innocence and maintained that she had falsely been implicated in this case. She further deposed that her husband was arrested in a narcotic case and for his release Khalid Mahmood, SI (PW-4) received Rs.2,50,000/- from her but could not succeed. When she demanded her money back, hot words were exchanged and he promised to return her money within a week but inste ad he apprehended her from her house and planted the narcotics upon her. She neither produced evidence in her defence nor appeared as her own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 to rebut the allegation against her .
6. The learned trial Court vide its judgment dated. 03.04.2014, found the appellant guilty , convicted and sentenced her as mentioned above.
7. Learned counsel for the appellant, inter alia, contends that the appellant has falsely been implicated in this case; that there an material contradictions in the statements of the prosecution witnesses that there is nothing mentioned of the tests performed and protocol; observed by the Punjab Forensic Science Agency on the report (Exh PE); that the prosecution remained fail to prove its case against the appellant beyond the shadow of any reasonable doubt; that this appeal may be accepted and the appellant be acquitted of the charge.
8. On the other hand, learned Deputy Prosecutor General opposes the contentions raised by learned counsel for the appellant and, inter alia, argues that the complainant and other prosecution witnesses, police officials, have no mala fide or ill will against the appellant to falsely implicate her in this case; that the appellant was caught red handed while she was in possession of the narcotic substances; that there are no material contradictions in the statements of the prosecution witnesses; that this appeal may kindly be dismissed.
9. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General and also scanned the record with their assistance.
10. It has been observed that Mst. Bushra Shafique 1612/LC, the recovery witness who joined the trial proceedings as PW -1, in her cross-examination maintains as under: "... I do not know what happened after the arrest of the accused lady. I do not know who had prepared the samples from the recovered narcotics. It has come to my knowledge that the alleged recovered narcotics substance was sealed into two parcels. The accused lady was not sent in the police lockup. The parcel was prepared by Khalid Mehmood S.I in the investigation room of P.S Kotwali. The alleged recovered narcotics substance was weighed in the said room... The alleged recovered money was counted in the investigation room......."
The above reproduced parts of her statement transpire materially adverse to the prosecution story furnished by PW-2 and PW-4 regarding the seizure of the contraband material from the possession of the appellant. Similarly , according to her, the Investigation Officer Iftikhar Ahmad, SI (PW-5) met her in the police station at about 09.00 a.m. while as per complaint (Exh-P A), the same was sent to police station from the place of recovery at 09.15 a.m. while the crime report was recorded at 09.30 a.m. where after, the investigation was entrusted to Iftikhar Ahmad, SI (PW-5). Being discrepant with Mst. Bushra Shafique, lady constable (PW-1), Khalid Mahmood, ASI (PW-4), in his examination-in-chief, maintains that after the recovery , Iftikhar Ahmad, SI (PW-5) came at the place of recovery for investigation and he joined the investigation with him, handed over the case property , the appellant Mst. Shama Touqeer and recovery memo to him who inspected the place of recovery and recorded the statements of the witnesses. PW-1 is also discrepant with other recovery , witness Bashir Ahmad, ASI (PW-2) as per her statement, the appellant when raided was present at the place of recovery in standing position along with four persons available near her who were not searched by the police party while on the other hand, during his cross- examination, Bashir Ahmad, ASI (PW-2) maintains that at the time of raid, no private person was present near Mst.
Shama Touqeer , accused. This inconsistent stance of the prosecution witnesses creates serious doubts about the creditability of the recovery proceedings and the prosecution case against the appellant.
11. It has also been observed that the Punjab Forensic Science Agency , in the light of dictum repeatedly laid down by the Hon'ble Supreme Court of Pakistan in the cases of The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ) and case titled Khair-ul-Bashar v. The State , "Crl. Appeal No. -94 of 2019, has not complied with the mandatory provisions of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 ("Rules"). The Hon'ble Apex Court of the country has held that the report of the government Analysts 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 Criminal Appeal No. 94 of 2019 that non-complian ce of Rule 6 and absence of any of these mandatory elements/ requirements frustrates the purpose and object of the Act. In this case, the report prepared by the Punjab Forensic Science Agency (Exh-PE) though carries the names of the tests yet it does not provide results of the same except a concluding result. The Analyst has not bothered even to mention the test protocols applied in carrying 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 dated 08.01.2014. 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 of the police witnesses i.e. PW-1 to PW-7 unless it is established with certitude that the material allegedly recovered at the instance of the appellant was a narcotic that, in our view , prosecution failed to do.
12. It is, by now, well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit of the weaknesses of the defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving its case against the appellant. There remains no cavil about the proposition that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas, in the instant case this Court has observed many , discussed supra. The Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v . The State (PLD 2002 SC 1048 ) was pleased to observe as under: "... The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted ..."
13. In the light of above discussion, Criminal Appeal No. 31-J of 2015 filed by Mst. Shama Touqeer (appellant) is allowed, her conviction and sentence recorded by the learned trial Court is set aside and she is acquitted of the charge levelled against her by extending her the benefit of doubt. She is in custody, be released forthwith if not required to be detained in any other case.