ABDUL HAMEED BALOCH, J. Through this common judgment we intend to dispose of both the referred appeals as both are arising out of the same FIR and judgment dated 24.07.2019 (impugned judgment) passed by the Sessions Judge/Special Judge CNS Mastung (trial Court), whereby both the appellants were convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 ("the Act") and sentenced to suffer Rigorous Imprisonment (RI) for eight years with fine of Rs.20000/- (Rupees twenty thousand) each, in default whereof further directed to undergo two months Simple Imprisonment (SI) each with benefit of section 382-B of Criminal Procedure Code, ("Cr.P.C.").
2. Brief facts leading to file the instant appeal are that on 20.05.2018 complainant Sameeullah (constable) lodged an FIR No. 12/2019, with Levies Thana Wali Khan Mastung, alleging therein that on the stated date and time on the direction of Assistant Commissioner he along with other levies personnel made a blockade at main RCD Road Saeed Abad Area. Meanwhile at about 1:15 a.m., a motorcycle bearing Registration No. MF-4102 coming from Mastung boarded by the appellants was intercepted. On search three packets charas from right side and two packets from left side of the Khurgin of motorcycle were recovered. On weighing four packets, each packets contained one kilogram while the rest one packet contained 500 grams, which were taken into possession vide recovery memos.
3. After completion of investigation the challan was submitted before the trial Court, whereby charge was framed and read over to the appellants to which they did not plead guilty and claimed trial. Thereafter the prosecution led its evidence to substantiate the charge. On completion of prosecution evidence the appellants were examined under section 342, Cr.P.C. wherein they once again professed their innocence. The appellants did not record their statements on oath as envisaged under section 340(2), Cr.P.C., however the appellant Tariq Aziz produced one Nadir Ali in his defence. On conclusion of the trial the appellants were convicted in the aforesaid terms. Hence this appeal.
4. Learned counsel for the appellants contended that the FSL report Ex-P/3-A in not in accordance with the Section 36 of the Act and Rule 6 of the CNS (Government Analysts) Rules 2001 because the same does not contain the complete protocol nor supported with the documents with regard to the test applied; that the inconclusive therefore cannot be used against the appellants. He relied upon the consolidated judgment dated 03.10.2018 passed by Hon'ble Supreme Court in Criminal Appeals Nos.523, 524 and 525 of 2017.
5. Conversely, learned DPG defended the impugned judgment on the ground that the appellants were apprehended when they were carrying the narcotics by a motorcycle; that there is no personal grudge of the police with the appellants; that despite lengthy cross-examination, the prosecution witnesses were not shaken and they remained firm on their deposition. He lastly urged for dismissal of the appeal.
6. We have heard learned counsel for the parties and have also perused the record with their able assistance. The perusal of record reveals that the levies officials during checking at main RCD Road Saeed Abad Area, intercepted a motorcycle bearing Registration No. MF-4102 boarded by the appellants was intercepted and the mentioned above charas were recovered from the Khurgin of motorcycle.
7. It may be observed that the Test/Analyst Report i.e.- Ex-P/4-D, issued by the Federal Narcotics Testing Laboratory, Forensic Science Laboratory Crimes Branch Balochistan, Quetta is hot in accordance with Rule 6 of the Narcotics Substances (Government Analysts) Rules. 2001 (Rules), which is mandatory in nature. The report in question has no evidentiary value in view of the law declared by the Hon'ble Supreme Court of Pakistan in the case titled as State v. Imam Bakhsh 2018 SCMR 2039, wherein it has been held 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 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 data. Rule 6 requires that 10 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 full protocols adopted to conduct such tests.
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 conviction 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 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. This Court has already emphasized the importance of protocols in Ikramullah's case (supra)."
8. According to statement of PW-4 (Investigating Officer) the samples of the contrabands were sent to the Government Analyst for examination through one Nasir Process-Server, but the said Nasir was not produced before the trial Court to prove the safe transmission of the contraband from the custody of the levies to the chemical analyst, which act on the part of the prosecution creates serious doubts in the whole prosecution's case.
9. For rendering this view, we are fortified from the dictum laid down by the Hon'ble Supreme Court of Pakistan on the case of Razia Sultana v. State 2019 SCMR 1300, wherein it has been held as under: "2. At the very outset, we have noticed that the sample of the narcotics drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to prove safe transmission of the drug from the Police to the chemical examiner. The chain of custody stands compromised as a result it would be unsafe to rely on the repot of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner losses reliability making it unsafe to support conviction."
10. For the foregoing reasons, we are of the considered opinion that to the extent of absence of full protocols to the tests applied, there Was non-compliance of rule 6 of the Rules. Further the safe transmission of the alleged seized contraband was also not established.
For the above stated reasons, vide separate short orders even dated 09.08.2019 both the Criminal Appeals Nos.263 and 266 of 2019 were allowed. The impugned judgment dated 24.7.2019 passed by Sessions Judge/Special Judge CNS Mastung, in CNS Case No. 03 of 2019 was set-aside and while extending benefit of doubt, the appellants Ghulam Muhammad son of Allah Bakhsh and Tariq Aziz son of Yar Muhammad were acquitted of the charge under section 9(c) of the Control of Narcotic Substances Act, 1997 in FIR No. 12/2019 Levies Thana Wali Khan Mastung. The appellants being in custody were ordered to be released forthwith, if not required in any other case.
The above discussion shall be the reasons to the earlier order announced in open Court.