SYED SHAHBAZ ALI RIZVI, J.---Sohail Almas, appellant, through instant appeal, has assailed the judgment dated 31.10.2016 passed by the learned Sess ions Judge/Judge Special Court (CNS), Rawalpindi in case FIR No.28 dated 22.04.2014, offence under section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station ANF RD District Rawalpindi whereby , he was convicted under section 9(c) of the Act ibid and sentenced to rigorous imprisonment for twelve years with fine of Rs.1,50,000/- and in default thereof, to undergo simple imprisonment for one year. The appellant was however , awarded the benefit of section 382-B of the Code of Criminal Procedure, 1898.
2. Brief facts of the case, as per crime report, are that on 22.04.2014, on spy information, a raid was conducted and at about 03.30 a.m., the appellant was apprehended from International Departure Lounge, Benazir Bhutto International Airport, Islamabad and during search of his trolley bag, eight kilograms of heroin was recovered from it.
3. After investigation, report under section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial court, after observing pre-tria l codal formalities, framed the charge against the appellant on 08.07.2014 to which he pleaded not guilty and claime d trial. The learned trial Court, after completion of trial, vide its judgment dated 31.10.2016, found the appellant guilty , convicted and sentenced him as mentioned above.
4. Arguments heard. Record perused.
5. It has been noticed that though after having spy information, complainant Aman Ul Haq, Inspector , ANF (PW-3) got the appellant, destined to Milan, Italy via Athens, Greece through flight No.QR-615, deboarded and thereafter , also got his baggage i.e. trolley bag (P-7) A off loaded out of which, heroin, eight kilograms in weight besides other articles, was recovered in consequence of which, instant case was registered against the appellant who stands convicted as mentioned above. According to the prosecution's case, the appellant was holding a baggage tag, copy of which was found tagged with the bag (P-7) but during cross-examination, it stands admitted by the complainant (PW-3) himself that no tag was available with the bag (P-7) that was produced in court. Though the number of baggage tag QR-706934, allegedly recovered from the possession of the appellant at the time of his arrest in the departure lounge of Benazir Bhutto International Airport was taken into possession vide recovery memo Exh-PB yet neither of the two baggage tags could be produced in evidence. Perusal of the recovery memo (Exh-PB) transpires that boarding passes were marked as P-5/1-2 and thereafter , after marking the baggage tag as P-6 that stands deleted and then off load proforma has been marked as P-6. Though photocopy of off load proforma is available in the file yet the original of the same marked as P-6 is not there. However , there is no denial to the fact that baggage tag that should have been available on trolley bag (P-7) as a material evidence to connect the appellant with that luggage has not been produced in evidence. If it was there on the bag that was taken into possession and thereafter , secured by the investigation agency , then it ought to have been produced in evidence against the appellant and non-production of the same leads this Court to draw an inference adverse to the prosecution under Article 129(g) of the Qanun-e-Shahadat Order , 1984. The original off load proforma could not be produced even by Muhammad Sufiyan recorded as a Court Witness (CW-2) during his statemen t while the statement of CW-1 Muhammad Ali Sheikh, Station Manager , Qatar Airways, Islamabad reveals that record of off load proforma and other connected record was no more available in his office having been destroyed as per policy of the Airline after keeping the same safe for three months only. It is relevant to mention here that the investigation agency did not bother to take said record in custody as an important and material evidence agains t the appellant. It is also noticed with concern that during the investigation the CCTV footage of the luggage booking and boarding card issuance counter or the departure lounge could not be collected and secured by the investigation agency to produce the same in evidence to establish the fact that it was the appellant who got the trolley bag (P-7) booked with the airline.
These aspects of the instant case create doubts about the credibility of the same.
6. Moreover , the Hon'ble Supreme Court of Pakistan in the case of Khair ul Bashar v. The State (2019 SCMR 930) has declared that the requirements of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 are mandatory and non-compliance of Rule 6 and absence of any of the enumerated mandatory elements/requirements frustrates the purpose and object of the Control of Narcotic Substances Act, 1997 consequently the report loses its reliability and evidentiary value. Similarly , in the case of The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ), the Hon'ble Supreme Court of Pakistan, in paragraph No.15, was pleased to explain the term "Protocol" as under:- "15. Rule 6 on the other hand stands on a different statutory footing. It 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 dug or a psychotro pic 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." (underlining for emphasis is ours)
In the instant case, the report prepared by the Government Analyst, office of the Chemical Examiner to Government of Punjab, Rawalpindi (Exh-PE) though carries the names of test applied yet 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 such report. We are of the considered opinion that the appellant in such case of narcotics cannot be convicted and sentenced only on the basis of oral assertions unless it is established with certitude that the material allegedly recovered from the possession of the appellant was a narcotic that, in our view, prosecution failed to do. The circumstances discu ssed hereinabove renders the prosecution case seriously doubtful and as such, a single circumstance when creates reasonable doubt regarding the prosecution case, the same is suf ficient to extend benefit to the accused.
Resultantly , Crl. Appeal No.647 of 2016 is allowed, the conviction and sentence awarded to Sohail Almas, appellant by the learned trial court is E set aside and he is acquitted of the charge levelled against him by extending him the benefit of doubt. He is in custody , be released forthwith if not required to be detained in any other criminal case.