Tariq Saleem Sheikh, J.--Through this appeal under Section 48 of the Control of Narcotic Substances Act, 1997 (the "Act"), the Appellant has challenged his conviction and sentence in case FIR No. 133/201 1 dated 3.4.201 1 registered at Police Station Qutabpur , District Multan, for an of fence under Section 9(c) of the Act.
2. Brief facts of the case are that on 3.4.2011 at about 9:00 p.m. Complainant Muhammad Farooq/SI (PW-2) was patrolling at Mohallah Latifabad along with other police officials when he received a source information that the Appellant, an alleged drug peddler , was coming from Abbaspura side on a motorcycle with a huge quantity of contraband concealed in the Tapa (side cover) of the motorbike and that he could be nabbed if a prompt action was taken. On this tip-of f A the Complainant arranged a picket at Chorigar Chowk. After a short while the Appellant came that way. The Complainant appreh ended the Appellant with the help of his team and recovered a shopping bag containing 1050 grams charas from him. Out of the recovered substanc e he drew 10 grams and prepared a sealed sample parcel for chemical analys is and secured the remaining bulk P-1 in a separate sealed parcel and seized both of them along with Motorcycle No. MNS-4340 P-2 vide Recovery Memo Exh.P A. After that he drafted complaint Exh.PB and sent it to the police station through Iftikhar Ahmad 3261/C on the basis of which Muhammad Sharif/ASI registered FIR No. 133/201 1 Exh.PB/1. Abdul Hameed/SI (PW-5) inves tigated the case and found that the Appellant had committed the of fence. Report under Section 173, Cr .P.C. was submitted accordingly .
3. The learned Additional Sessions Judge framed charge against the Appellant to which he pleaded not guilty and claimed trial. The prosecution produced six witnesses to prove its case. Muhammad Farooq/SI (PW-2) was the Complainant of this case who along with Abdul Qadoos 1191/HC (PW-3) testified about the recovery of charas from the Appellant. Muhammad Sharif/ASI (PW-6) was the Duty Officer at the police station who registered FIR No. 133/201 1 Exh.PB/1 on the complaint of PW Muhammad Farooq/SI. Zulfiqar Ali/ASI (PW-4) and Muhammad Farooq 380/C (PW-1) testified about safe custody of the case property and safe transmission of the sample to the office of the Chemical Examiner , Multan. The Investigating Officer, Abdul Hameed/SI (PW-5), gave details of his investigation. In documentary evidence the prosecution inter alia adduced photocopy of the report of the Chemical Examiner Exh.PD.
4. In his statement under Section 342, Cr.P.C. the Appellant denied the allegations levelled against him and professed innocence. He maintained that he had been framed in this case by the Complainant only to show efficiency and nothing was recovered from him. He neither opted to make statement on oath under Section 340(2), Cr.P.C. nor examined any witness in his defence. However , he tendered in evidence photocopy of registration letter Mark-DA, copy of receipt regarding purchase of motorcycle Mark-DB and copy of NIC of Muhammad Nawaz Mark- DC.
5. On the conclusion of the trial, vide impugned judgment dated 18.11.2013, the learned Additional Sessions Judge convicted the Appellant under Section 9(c) of the Act and considering that he was first offender sentenced him to rigorous imprisonment for one year with fine of Rs. 10,000/- and in default thereof to undergo simple imprisonment for a further period of one month. However , benefit of Section 382-B, Cr .P.C. was extended to him.
6. In support of this appeal, the learned counsel for the Appellant contended that the Appellant was innocent and the police had falsely implicated him in this case due to ulterior motives. He main tained that the prosecution had failed to prove its case against him beyond doubt. There were glaring contradictions in the statements of the witnesses which made them untrustworthy . The report of the Chemical Examiner . Exh.PD in respect of the sample did not meet the requirements of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, which were mandatory . Lastly , the report of the Chemical Examiner Exh.PD could not be used against the Appellant because it was a photocopy which was inadmissible. He prayed that this appeal be accepted and the Appellant may be acquitted of the charge.
7. On the other hand, the learned Additional Prosecutor General opposed this appeal and controverted the above contentions, He argued that the Appell ant was caught red-handed with 1050 charas which was proved by Muhammad Farooq/SI (PW-2) and Abdul Qadoos 1191/HC (PW-3) and their state ments were corroborated by the Chemical Examiner's Report Exh.PD. He maintained that the prosecution evidence was coherent and the Appellant could not create any dent in it. He prayed for dismissal of this appeal.
S. Arguments heard. Record perused.
9. According to the prosecution, the Appellant wa$ apprehended from Chorigar Chowk and 1050 grams charas was recovered from him. Out of the recovered contraband the Complainant drew 10 grams and prepared a sealed sample for chemical analysis and preserved the remaining bulk by making a distinct sealed parcel thereof. After that he sent the complaint Exh.PB to the police station for registration of FIR. Abdul Qadoos 1191/HC (PW-3) fully corroborated the statement of Complainant Muhammad Farooq/SI (PW-2). While going through the complaint Exh.PB we have noticed that when the Complainant drafted it he wrote the quantity of recovered substance as "1050 kilograms charas" which was later on corrected as 1050 grams by crossing out the word "kilo" and the Investigating Officer, Abdul Hameed/SI (PW-5) initialled the amendment to authenticate it. It is also noted that the Complainant (PW -2) during cross-examination deposed: "It is correct that overwriting in Exh.PB. to the extent of quantity of charas is visible. It is incorrect that overwriting was made by Abdul Hameed."
10. On the other hand, Abdul Hameed/SI (PW -5) in his cross-examination stated: "The file which was handed over to me consisted of complaint Exh.PB and FIR. I read the complaint Exh.PB. On complaint Exh.PB, charas 1050 gram is mentioned, while word "kilo" was rubbed by Muhammad Farooq Si/Complainant. On Exh.PB I made the initial signature. It is correct that the original complaint Exh.PB is attached with the judicial file, while the carbon copy of Exh.PB is annexed with the police file. Today I perused the complaint annexed with police file. It is correct that complaint annexed with the police file was made initial signature by Muhammad Farooq SI/Complainant. The word "gram" mentioned in the complaint was not made by me.
Volunteered that it was mentioned by Muhammad Farooq SI/Complainant."
11. Perusal of the record reveals that the aforesaid overwriting was made in the complaint Exh.PB after registration of FIR Exh.PB/1 by Abdul Hameed/SI (PW-5) and not by the Complainant because word "1050 kilogram" was clearly written in the FIR. It is also noticed that in the complaint quantity of sample was only written as "10" and in the FIR word "gram" was overwritten. The above referred contradictions in the statements of Muhammad Farooq/SI (PW-2) and Abdul Hameed/SI (PW -5) and the overwritings in the record make the prosecution dubious.
12. There is another important aspect of the case. The report of the Chemical Examiner Exh.PD is not drawn in accordance with law and does not meet the requirements of Rule 6 of the Control of, Narcotics (Government Analysts) Rules, '2001. It also does not contain details of the protocols applied. In the State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ), the Hon'ble Supreme Court of Pakistan authoritatively held that Rule 6, ibid, is mandatory to the extent that full protocol s ought to be mentioned in the report of the Chemical Examiner and its non-compliance renders the report inconclusive and unreliable; Relevant excerpt is reproduced hereunder: "It [Rule 6] provides that the Report of the Government Analyst, after the test and analysis, is to furnish the result together with full protocols of the test applied. The accuracy of test and analysis and the correct application of the full protocols alone can determine if the recovered substance is a narcotic drug or a psychotropic or controlled substance. "Protocol" means an explicit, detailed plan of an experiment, procedure or test or a precise step-by-step description of a test, including the listing of all necessary reagents and all criteria and procedures for the evaluation of the test data. Rule 6 requires that full protocols of the test applied be part of the Report of the Government Analyst. Every test has its protocols, which are internationally recognized and a test without the observance of its protocols has no sanctity . 'Full Protocols' include a description of each and every step employed by the Government Analyst through the course of conducting a test. Hence, the Report under Rule 6 must specify every test applied for the determination of the seized substances with the full protocols adopted to conduct such tests."
13. Under Section 36 of the Act read with Section 510, Cr.P.C. the report of the Government Analyst is admissible in evidence in per se. However photocopy of the report cannot be equated with the original. In this respect reference may be made to Ghayour Abbas v. The State (2018 YLR 2494 ) with considerable advantage. In the instant case, the original of report Exh.PD was not produced and the prosecution did not even lead secondary evidence to prove it.
14. For all the above reasons the convicti on and sentence handed down to the Appellant by the learned trial Court cannot be sustained. Hence, we allow this appeal, set aside impugned judgment dated 18.11.2013 and acquit the Appellant of the charge. He is on bail as his sentence was suspended by this Court vide order dated 15.1.2014. His surety stands discharged.