SADIQ MAHMUD KHURRAM, J.---Muhammad Sajjad son of Muhammad Qaiser (appellant) was tried by the learned Additional Sessions Judge, Dera Ghazi Khan in case FIR No.644 of 2018 dated 30.12.2018 registered at Police Station Saddar , District I)era Ghazi Khan, in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997. The learned Additional Sessions Judge, Dera Ghazi, Khan vide judgment dated 03.07.2019 convicted Muhammad Sajjad son of Muhammad Qaiser (appellant) and sentenced him as infra: Muhammad-Sajjad son of Muhammad Qaiser: Rigorous Imprisonment for four years under section 9(c) of the Control of Narcotic Substances Act, 1997 and also burdened with fine of Rs.8000/-, in default thereof, was directed to further undergo simple imprisonment for four months and fifteen days. The appellant was however , extended benefit available under section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.)".
2. Feeling aggrieved, Muhammad Sajjad son of Muhammad Qaiser (convict) lodged Criminal Appeal No 690 of 2019, challenging the judgment dated 13.07.2019 passed by the learned Addition al Sessions Judge, Dera Ghazi Khan, whereby the appellant was convicted and sentenced for an offence punishable under Section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as " the Act") as mentioned above.
3. Precisely the facts necessary , as divulged in the statement of Imran Khalid, S.I (PW 5) are as under: "States that on 30.12.2018, I was posted as S.I at PS Saddar , D.G. Khan. ON the same date, I along with Khaliq Bakhsh 893/C, Abdul Majeed 798/C and other officials on official vehicle were present at Busti Karhin Wala in connection with patrolling duty. Spy informed me that Muhammad Sajjad resident of Shamas Abad Colony was selling charas at Basti Chah Karhin Wala near maize crop. If raided, the accused could be arrested. I constituted raiding party and reached at Basti Karehin where a person was standing while carrying a shopper in his right hand.
I apprehended the accused with the help of other officials. On the asking, the said person told his name Muhammad Sajjad present in the Court. I made his search and recovered a shopp er from his right hand, in which two packets containing Charas recovered which weighing 800 grams Charas and 660 grams Charas each packet.
On further search I recovered wattak amount Rs. 2100/-, denomination of currency notes, 03 currency notes of Rs.500/-.05 currency notes of Rs. 100/-, 02 currency notes of Rs.50/- recovered from his front pocket. I separately 40 grams Charas and 35 grams Charas from recovered Charas for sample analysis and sealed both sample parcels as well as remaining contraband, I took into possession recovered narcotic to recovery memo Ex.P.C. remaining Charas 800 grams and 660 grams Charas P-1 attested by Abdul Majeed 798/C and Khaliq Bakhsh 893/C. I also took in to possession recovered wattak amount of Rs.2100/- P-2 through recovery memo Ex. P-D attested by both above said PWs. After that I drafted writing complaint Ex. P-A and send the same for the registration of formal FIR through Lal Bakhsh PQR. After reaching investigation officer I handed over all case property as well as accused person Muhammad Squad present in court to 1.0. 1.0. record the statement of two PWs under section 161, Cr . P. C. and prepared rough site plan on our pointation and presence."
4. On the above stated facts FIR No.644 of 2018 (Exh.P A/1) dated 30.12.2018 registered at Police Station Saddar , District Dera Ghazi Khan, in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997.
5. After the formal investigation of the case, report under section 173, of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Muhammad Sajjad son of Muhammad Qaiser was sent to face trial. The learned trial court framed the charge against the accused on 28.02.2019 under section 9(c) of the Control of Narcotic Substances Act, 1997. The appellant pleaded not guilty and claimed trial and the learned trial Court proceeded to examine the prosecution witnesses.
6. In order to prove the facts the prosecution examined as many as six witnesses. The prosecution examined Imran Khalid, SI (PW-5) and Khaliq Bakhsh 893/C (PW-6) as witnesses to the recovery of narcotics (1460 grams of "Charas"). Talib Hussain SI (PW-1) stated that on 03.01.2019 Moharrar handed over to him two sealed parcels said to contain "Charas" which he on 04.01.2019 deposited in the office of Punjab Forensic Science Agency , Lahore.
Ghulam Qambar 534/HC (PW-2) stated that on 30.12.2018 Zulfiqar Ali, SI (PW-4) handed over to him four sealed parcels said to contain "Charas" and on 03.01.2019 he handed over two sealed parcels to Talib Hussain SI (PW-1) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Muhammad Nasir Khan, ASI (PW-3) got lodged the formal FIR (Exh.PA/1). Zulfiqar Ali, SI, (PW-4) investigated the case and detailed the facts of the investigation in his statement recorded by the learned trial court.
7. On 01.07.2019, learned ADPP gave up PW Abdul Majeed, 798/C as being unnecessary and closed the prosecution evidence after tendering in evidence report of Punjab Forensic Science Agency (Exh.PE), previous history of criminal cases of the accused (Exh.PF and Exh. PF/1).
8. After closing of prosecution evidence the statement of appellant was recorded under section 342 of Code of Criminal Procedure, 1898 and the appella nt pleaded his innocence and in reply to as to why the PWs had deposed against him, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution being subordinate to the Investigating Officer. The appellant however opted not to appear in terms of section 340(2) of the Code of Criminal Procedure, 1898 however submitted certified copies of report under section 173, Cr.P.C. of case FIR No. 643/2018 under section 9(c), C.N.S.A., 1997 Police Station Saddar D.G. Khan as Exh. D.A, charge sheet as Exh.D.B, statements of PW-1 to PW-5 (consisting of 10-pages) as Exh.D.C, statement of accused recorded under section 342, Cr.P.C. as Exh.D.D, order sheets (consisting of six pages) as Exh.D.E and Narcotic Analysis Report as Exh.D.F as evidence in his defence.
9. After completion of evidence and hearing both the parties the learned trial court held the appellant guilty of offence and sentenced the appellant as referred to above.
10. Learned counsel for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant. Learned counsel further argued that there were glaring contradi ctions in the statements of the witnesses hitting at the very root of the prosecution case. Learned counsel for the appellant also contended that full protocols were not mentioned by the office of Punjab Forensic Science Agency while preparing the report (Ex.PE).
Learned counsel also stated that nothing was recovered from the appellant and pleaded for acquittal of the appellant.
11. On the other hand learned Additional Prosecutor General appearing on behalf of the State submitted that the prosecution has proved the charge by producing admissible and relevant evidence. He further submitted that all the witnesses have corroborated each other . He requested that the appeal be dismissed.
12. We have heard the learned counsel for the appellant as well as learned Additional Prosecutor General and perused the record.
13. It is by now well settled that since the provisions of The Control of Narcotic Substances Act, 1997 provide severe punishments, therefore, their proof has to be seen strictly and the benefit of any doubt in the prosecution case must be extended to the accused. Reference in this respect may be made to the case of "Muhammad Hashim v. The State" (PLD 2004 Supreme Court 856). Dealing with the same proposition, the august Supreme Court of Pakistan has held in the case of "Ameer Zeb v. The State " (PLD 2012 Supreme Court 380) that harder the sentence is, stricter the standard of proof should be. Seeking guidance from the A abovementioned judgments of the august Supreme Court of Pakistan, we proceed to decide the instant case. We have observed that the report of Punjab Forensic Science Agency , Lahore (Exh.PE), tendered in evidence by the prosecution in this case does not give the details of the full B protocols and the test applied at the time of analysis of sample of narcotics allegedly recovered from the possession of the appellant. Relevant/operative part of the report of the Punjab Forensic Science Agency , Lahore tendered in evidence by the prosecution as (Ex.PE), reads as under:- "Item No . Description of Evidence
1. One sealed parcel said to contain 40 gram(s) of suspected Charas.
02 One sealed parcel said to contain 35 gram(s) of suspected Charas.
Tests Performed on Received Item(s) of Evidence
1. Analytical balance was used for weighing;
2. Chemical spot test(s) was/were used for Presumptive testing;
3. Gas chromatograph-mass spectrometry was used for confirmation.
Results and Conclusion:- Items # 01 having net weight 42.30 gram(s) of blackish brown resinous material in sealed parcel contains Charas.
Items # 02 haying net weight 38.33 gram(s) of blackish brown resinous material in sealed parcel contains charas."
Undisputedly , it is settled by now that any report failing to describe in it, the details of the full protocols and the tests applied will be inconclusive unreliable suspicious and untrustworthy and will not meet the evidentiary presumption attached to a Report of the Government Analyst under section 36(2) of the Act ibid. In the report of Punjab Forensic Science Agency , Lahore (Exh.PE), it is simply mentioned that certain tests were conducted and contraband material recovered in this case was found to be Charas instead of mentioning the details of tests applied on the samples and their protocols as required by law. 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 experiment. 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 substa nce under examination. 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. Therefore, 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).
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 prepare another Report, for that would amount to giving the prosecution a chance of filling the gaps and omissions 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. The evidentiary value of report of the Punjab Forensic Science Agency , Lahore (Exh.PE) has been evaluated by us in the light of Control of Narcotic Substances (Government Analysts)
Rules, 2001. Rule 6 of the said -Rules makes it imperative on an analyst to mention result of material analyzed with full protocols applied thereon along with other details in the report issued for test/Analysis by the Laboratory .
14. We also find that the report of Punjab Forensic Science Agency , Lahore (Exh.PE) is not in line with the principles enunciated by the august Supreme Court of Pakistan in the case of "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039 ). The relevant portion of the said judgme nt is reproduced as under: "16. 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 conv iction cannot be sustained on a Report that is inconclusive or unreliable. The evidentiary 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 fundam ental 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-1 1) 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 360. Resultantly , it will hopelessly fail to support conviction of the accused. This Court has already emphasized the importance of protocols in Ikramullah's case (supra)".
The above said view has been further fortified in the recent case law titled as "Khair-ul-Bashar v. The State "
(2019 SCMR 930). We have also requisitioned the attested copy of FIR in case of "Khair -ul-Basher " supra i.e., FIR No.18, dated 15.01.2016, offence under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Westridge, District Rawalpindi, as well as, attested copy of the report of the Punjab Forensic Science Agency , Lahore, exhibited as Ex.PH, in the said case before the concerned trial Court. The report of the Punjab Forensic Science Agency , Lahore, produced in evidence as Ex.PH, in the case of "Khair -ul-Basher " supra is identical with the report of the Punjab Forensic Science Agency , Lahore, produce d in the evidence of the present case before the learned trial Court as Exh. PE. As identical report in the case of "Khair -ul-Basher " supra has not been relied upon by the august Supreme Court of Pakistan, therefore, the identical report of the Punjab Forensic Science Agency , Lahore produced in evidence of this case by the prosecution as Exh.PE, is also not worthy of reliance.
15. Learned, Additional Prosecutor General has argued that the appellant cannot be acquitted on the abovementioned sole ground of non-mentioning of protocols/full details of test applied, in the report of the Punjab Forensic Science Agency , Lahore but we have noted that the August Supreme Court of Pakistan in the case of "Khair -ul-Bashar " supra, acquitted the accused of the said case on the abovementioned sole ground of non- mentioning of protocols/full details of the tests applied in the report of the Punjab Forensic Science Agency , Lahore.
Even otherwise, it is by now well settled that a single circumstance creating reasonable doubt would be sufficient to cast doubt about the veracity of F prosec ution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right. In absence of this certainty we cannot believe the case of the prosecution as it is. Keeping all these possibilities in mind and raising necessary inference from the facts available on the record we have arrived at a conclusion that a possib ility cannot safely be ruled out of consideration regarding the appellant having been falsely implicated in the prese nt criminal case and, thus, we have decided to extend the benefit of doubt to him. Though there is a slight difference by virtue of Narcotic Substances Act, 1997 in the manner and standard of proof in G cases registered under the said Act but the prosecution is always bound to discharge the initial onus of proof. This is now a settled principle of law that in every case the burden to prove the guilt of the accused always lies on the prosecution. Even the slightest doubt results in failure of the case of the prosecution. Benefit of doubt is not to be granted as a H concession but as of right. The prosecution by mishandling the case has badly failed to bring on record unimpeachable and cogent evidence to prove culpability of the appellant. In the light of the above noted infirmities, we are inclined to observe that prosecution has miserably failed to bring home the guilt of the accused. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in cases titled Ikramullah and others v. The State (2015 SCMR 1002 ), Akhtar Iqbal v. The State (2015 SCMR 291) and Muhammad Hussain v. The State (2008 SCMR 345). The august Supreme. Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an-accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State (2009 SCMR 230 ) and Muhammad Zaman v . The State (2014 SCMR 749 )."
16. For what has been discussed above, we are persuaded to hold that the convi ction and sentence recorded by the learned Additional Sessions Judge, Dera Ghazi Khan, vide judgment dated 03.07.2019, in the circumstances, are not sustainable. We, thus while allowing the instant Criminal Appeal No.690 of 2019 filed by Muhammad Sajjad son of Muhammad Qaiser , set aside the judgment dated 03.07.2019 passed by the learned Additional Sessions Judge Dera Ghazi Khan and acquit the appellant of the charge levelled against him. He is directed to be released forthwith if not required in any other case.
17. The case property shall be dealt with as directed by the learned trial court. The record of the learned trial court be sent down immediately .