SADIQ MAHMUD KHURRAM, J. This judgment shall dispose of the insta nt appeal lodged by Muhamad Kamran Yousaf son of Sheikh Muhammad Yousaf (appellant), assailing his conviction and sentence awarded to him by the Drug Court, Bahawalpur Division, Bahawalpur vide judgment dated 08.04.2015. The Drug Court, Bahawalpur Division, Bahawalpur convicted Muhama d Kamran Yousaf son of Sheikh Muhammad Yousaf (appellant) and sentenced him in the following terms:- Muhamad Kamran Yousaf son of Sheikh Muhammad Yousaf (appellant):- Rigorous imprisonment for three years under section 27 (1)(a) of the Drugs Act, 1976 and directed to pay fine of Rs. 50,000/- and in default whereof to further undergo simple imprisonment for three months.
2. Briefly stated, the facts of the prosecution case are that on 17.04.2006, about 11:45 a.m. Muhammad Monawar Hayat (PW-1), the then Provincial Inspe ctor of Drug, District Bahawalpur , vide Notification Mark-A, alongwith Muhammad Ashraf (PW-3), peon posted at the DOH Office Bahawalpur , inspected the business premises of M/S Arif Brothers situated at Chowk Fawara , outside the Ahmedpuri Gate , Bahawalpur . During the inspection, Muhammad Monawar Hayat (PW-1) recovered and sized Kamran Ointment 20mg , Registration No. Nil, Batch No.003, manufactured by M/S Kamran Herbal Laboratory , Karachi on Form-4 (Exh. PA) in the presence of the witnesses for the purpose of test/analysis suspecting it to contain allopathic drugs. Zafar Iqbal, the Qualified Person of M/S Arif Brothers , made his statement, signed and stamped Form-4 and copy of Form-4 and one portion of the seized sealed sample was handed over to him by Muhammad Monawar Hayat (PW-1) at the spot. Muhammad Ashraf (PW-3), also signed Form 4 (Exh. PA) as a marginal witness. Muhammad Monawar Hayat (PW-1) sent the manufacturer portion of the sample of the above said drug to M/S Kamran Herbal Laboratory , Karachi vide Ex-PH.
Muhammad Monawar Hayat (PW-1) sent the seized sealed sample to the Gover nment Analyst of Drugs Testing Laboratory , Lahore for the purpose of test/analysis on Form-6 (Exh.PB) dated 25.04.2006 and the Drugs Testing Laboratory , Lahore found the same conta ining Neomycin Sulphate , an allopathic drugs vide report Exh.PD dated 10.06.2006. The Drug Inspector sent a letter (Exh.PE) to M/S Arif Brothers situated at Chowk Fawara , outside the Ahmedpuri Gate , Bahawalpur alongwith a copy of the test report and asked them to explain and provide the invoice as a proof of purchase and the warranty wherein they submitted a copy of bill/warranty No. 1872 dated 10.04.2006 (Exh.PG/1) issued by M/S Asif Medicine Company , Medicine Market, Town Hall, Multan , therefore, Muhammad Monawar Hayat (PW-1) sent 3rd warrantor portion of the above said sample to M/S Asif Medicine Company , Medicine Market, Town Hall, Multan and asked them to explain and provide the bill/ warranty as a proof of purchase vide Exh-PF , who, in response, submitted invoice No. 272 dated 15.03 .2006 (Exh.-PJ/1) issued by the appellant namely Muhammad Kamran Yousaf, proprietor of M/S Kamran Herbal Laboratory , Karachi . Muhammad Monawar Hayat (PW-1), Drug Inspector , sent letters alongwith copy of the test report vide Exh-PK and Exh-PK/1 to the appellant namely Muhammad Kamran Yousaf, proprietor of M/S Kamran Herba l Laboratory , Karachi and asked to explain his position in the matter . In response, the appellant Muhammad Kamran Yousaf, proprietor of M/S Kamran Herbal Laboratory , Karachi, vide Exh-PL challenged the Drugs Testing Laboratory , Lahore report, therefore the sample was sent to Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad which also declared that Kamran Ointment 20mg had in it Neomycin Sulphate , an allopathic drug vide report Exh- PO. The case was referred to Chairman, Provincial Quality Control Board, Lahore for permission for prosecution vide Exh-PP/1. The Provincial Quality Control Board, Lahore issued personal hearing notices (Exh.PQ and Exh.PR) to the appellant. The Provincial Quality Control Board, Lahore after going through the relevant record granted permission for prosecution against the appellant for manufacturing / selling unregistered drugs without having manufacturing/sale license. After receiving the sanction for prosecution (Exh.PS), Naveed Aslam, Drug Inspector , (PW-2), drafted the complaint (Exh.PT) against the appellant, namely Muhamad Kamran Yousaf son of Sheikh Muhammad Yousaf and submitted the same for trial before the competent court of law .
3. On submission of the complaint, the accused was summoned to face the trial and after observing all legal requirements, the charge was framed against the accused on 30.09.2009. The appellant pleaded not guilty and claimed trial and the learned trial court proceeded to examine the prosecution witnesses.
4. In order to prove its case against the appellant, the prosecution got three witnesses examined. Muhammad Monawar Hayat (PW-1) narrated the facts of the case as mentioned in Paragraph 2 of the judgment. Muhammad Ashraf (PW-3) , peon posted at the DOH Office Bahawalpur , stated that on 17.04.2006, Muhammad Monawar Hayat (PW-1) inspected the business premises of M/S Arif Brothers situated at Chowk Fawara , outside the Ahmedpuri Gate , Bahawalpur and during inspection, Muhammad Monawar Hayat (PW-1) recovered and seized Kamran Ointment 20mg, Registration No. Nil, Batch No.003, manufactured by M/S Kamran Herbal Laboratory , Karachi on Form-4 (Exh.P A), which form was signed by him as a witness. Naveed Aslam, Drug Inspector , (PW-2) stated that on 24.05.2008, he was posted as Drug Inspector , Bahawalpur and the file of this case was entrusted to him of his learned predecessor Muhammad Munawar Hayyat, Drug Inspector (PW-1) and he referred the case to the Chairman, Provincial Quality Control Board, Lahore for permission for prosecution and he drafted the complaint (Exh.PT) against the appellant namely Muhamad Kamran Yousaf, after receiving the sanction for prosecution (Exh.PS) from the Provincial Quality Control Board, Lahore.
5. On 20.01.2010, the learned District Public Prosecutor gave up the prosecution witnesses namely Abdul Hameed Sabir , Secretary , Provincial Quality Control Board, Lahore, Nayyar Munir , Proprietor of M/S Arif Brothers , Chowk Fawara, Bahawalpur , Zafar Iqbal, Qualified Person of M/S Arif Brothers , Chowk Fawara, Bahawalpur and Muhammad Asif, proprietor of M/S Asif Medicine Company , Multan as being unnecessary and closed the prosecution evidence.
6. After closing of prosecution evidence, the statement of the 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 replied that he was innocent and had been falsely involved in the case. The appellant opted not to appear in terms of section 340(2) of the Code of Criminal Procedure, 1898, and did not adduce evidence in his defence.
7. After completion of evidence and hearing both the parties the learned trial court held the appellant guilty of the offence and sentenced the appellant as referred to above.
8. It is contended by the learned counsel for the appellant that the appellant was innocent in the instant case; that the perusal of the impugned judgment reveals that the conviction awarded to the appellant is neither based on some incriminating evidence nor on some legal reasoning; that the spurious drug was not recovered from the appellant; that from the bare perusal of the impugned judgment, it reveals that appellant was awarded conviction solely on account of weakness of defence; that recital of the prosecution case gives rise to a reasonable doubt about the involvement of the appellant in the commission of crime, however , its benefit was withheld from him and that since the prosecution miserably failed to prove the guilt of appellant through confidence inspiring evidence, hence, he is entitled to be acquitted from the case.
9. The learned Deputy Prosecutor General strongly controverted the arguments advanced on behalf of appellant and submitted that it was proved from the prosecution evidence that the appellant had sold unregistered drug ; that the manufacturing of the unregistered drug by the appellant was proved from the confidence inspiring evidence of witnesses, who had no animus against the appellant; that during trial, the appellant miserably failed to offer any justification worth acceptance for the manufacturing and selling the drug which was not registered, hence, he deserves no leniency and the instant appeal be dismissed.
10. We have thoroughly considered the respective arguments of learned counsel for the appellant, the learned Deputy Prosecutor General and have examined the entire record.
11. The case of the prosecution centres on the evidence that the appellant had manufactured and sold Kamran Ointment 20mg, Registration No. Nil, Batch No.003, the drug which was not registered, and it had in it Neomycin Sulphate , an allopathic drug, the presence of which made it mandatory to register the said product. In order to prove that Kamran Ointment 20mg , manufactured and sold by the appellant, had Neomycin Sulphate , an allopathic drug, detected in it, the prosecution produced the report of the Government Analyst of the Drugs Testing Laboratory Lahore (Exh. PD) and the report of Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad (Exh. PO). The evidentiary value of the report of the Government Analyst of the Drugs Testing Laboratory Lahore (Exh. PD) and the report of Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad (Exh. PO) has been evaluated by us in the light of the Punjab Drugs Rules, 1988, the prevalent rules at the time when the occurrence took place. Section 16 of the Drugs Act, 1976 provides that the Federal Government or Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be the Federal Government Analysts or, as the case may be, Provincial Government Analysts, for such areas and in respect of such drugs or classes of drugs as may be specified in the notification. Section 22 of the Drugs Act, 1976 makes it mandatory for the Government Analyst to deliver to the Inspector submitting the sample of any drug, a signed report in quadruplicate, in the prescribed form . Section 22 of the Drugs Act, 1976 provides as under:- "22. Reports of Government Analysts.- (1) The Government Analyst to whom a sample of any drug has been submitted for test and analysis under sub-section (3) of section 19 shall deliver to the Inspector submitting it a signed report in quadruplicate in the prescribed form and forward one copy thereof to the authority as may be prescribed."
Rule 11 of the Punjab Drugs Rules, 1988, as they existed then, made it mandatory for the Government Analyst to furnish the report, the result of the test and analysis in Form 7. Rule 11 of the Punjab Drugs Rules, 1988 provided as under:- "
11. Duties of Government Analyst.- (1) A Government Analyst shall conduct test and analysis of the sample of a drug sent to him under the Act or the rules and shall furnish report, the result of test and analysis in Form 7 .
(2) A Government Analyst shall conduct test and analyses of the sample of a drug sent to him in writing by an Inspector , a Government Department or any other public institution and shall furnis h the report of the result of test and analysis to the Inspector , the Government Department or the public institution.
(3) A Government Analyst shall forward to the Government monthly report containing results of samples tested and analysed during the month for publication at the discretion of the Government and furnish such other information as may be required by the Government."
The Form 7 created under the Drugs Act, 1976 and the rule (11)(1) of the Punjab Drugs Rules, 1988, framed thereunder , required that the result of the test and analysis of the item submitted for analysis must be given with specifications applied . The Form 7 created under the Drugs Act, 1976 and the Rule (11)(1) of the Punjab Drugs Rules, 1988, framed thereunder , required as under: FORM 7 DRUGS ACT, 1976 AND DRUGS RULES, 1988 FRAMED THERE UNDER [See rule (1 1)(1)] Report of T est/Analysis by Government Analyst, Punjab
1. Name of Inspector of Drugs from whom received
2. Serial Number and date of Inspectors memorandum
3. Date of receipt
4. Name of Drug purporting to be contained in the sample
5. The condition of the seals
6. Result of test/analysis with specifications applied In the opinion of the undersigned, the sample referred to above is of standard quality as defined in the Drugs Act, 1976 and rules there-under; Is adulterated/substandard/misbranded/spurious, as defined in the Drugs Act, 1976 for the reason given above.
(Please score out which is not applicable)
No. TRA.........../DTL. Dated .............
1. The Inspector of Drugs
2. The Chairman Provincial Quality Control Board, Government of the Punjab, Health Department Government Analyst_______________ The Form 7 required that the result of the test and analysis of the item submitted for analysis must be given with specifications applied . A specification is defined as a list of tests, references to analytical procedures , and appropriate acceptance criteria, which are numerical limits, ranges, or other criteria for the tests described. It establishes the set of criteria to identify a drug substance or drug product. Specifications are chosen to confirm the quality of the drug substance and drug product. Additionally , a reasonable range of expected analytical and manufacturing variability should be considered before determining the identity of the drug being tested and analyzed. It is important to consider all of this information. Assay tests form part of the Specifications applied to determine the identity of a drug. Assay tests are important analytical processes that are involved in many aspects of biological laboratory work. An assay is an investigative (analytic) procedure in laboratory medicine, pharmacology and molecular biology for qualitatively assessing or quantitatively measuring the presence, amount, or functional activity of a target entity . The measured entity is often called the analyte , the measurand , or the target of the assay . The analyte can be a drug, biochemical substance, chemical element or compound, or cell in an organism or organic sample. An assay usually aims to measure an analyte's intensive property and express it in the relevant measurement unit (e.g. molarity, density , functional activity in enzym e international units, degree of effect in comparison to a standard. They are a way of evaluating the contents of samples and actions of various molecules and are important for drug discovery and identification. Assays can be divided into three main categories based on the type of sample used - ligand-binding assays that measure binding between a ligand and a receptor , immunoassays that detect antibody-antigen binding, and bioassays that measure biological activity in response to certain stimuli. A ligand-binding assay is a technique used to measure the binding ability of ligands to receptors. They are useful for assessing signaling activity in cell pathways and for predicting the affinity of potential drugs. Most ligand-binding assays require the use of a radio-labeled ligand for quantitative detection, though ligand-binding assays can also use non-radioactive labelling. Radio-label assays are frequently used to measure affinity by displacement. The ligand of interest, which is unlabeled, will be introduced to the receptor and any unbound ligand then removed. The radio-labelled ligand is then added, the assay is washed again, and radioactivity can be measured. In this kind of affinity assay , an increased level of radioactivity measured indicates that the ligand of interest has a lower binding affinity to the receptor used than the radio-labelled ligand. Radio- labelled ligand-binding assays can be used without signal amplification, though they require extensive washing and care with handling radioactive substances, so can be considered less desirable. Non-radioactive alternatives include using a fluorescent label for ligand-binding detection or using an enzyme-bound ligand and a substrate reaction. Immunoassays are any assays that use antibodies or antibody fragments. One of the most used types of immunoassay is an ELISA (enzyme-linked immunosorbent assay). It is a common ly used laboratory test to detect antibodies in the blood. An antibody is a protein produced by the body' s immune system when it detects harmful substances, called antigen. There are four main types of ELISA - direct, indirect, sandwich, and competitive - each of which has a slightly different function. Bioassay techniques are far more varied than other assays and range from in vivo experiments to assays which only require cell cultures. In vivo bioassay techniques are among the most prevalent assay techniques used in biological research and involve a wide variety of model organisms that each have different benefits. The nutshell of the discussion is that to identify the item sent for test and analysis, it was imperative and mandatory that the result of the test and analysis of the item submitted for analysis must be given with specifications applied . Now, the report of the Government Analyst of the Drugs Testing Laboratory Lahore (Exh. PD) and the report of Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad (Exh.PO) did not state the specifications applied for determining the identity of the item sent for tests and analysis. The report of the Government Analyst of the Drugs Testing Laboratory Lahore (Exh. PD) and the report of Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad (Exh. PO) even do not mention the tests which were performed for determining the identity of the item sent for tests and analysis.
In the report of the Government Analyst of the Drugs Testing Laboratory Lahore (Exh. PD), both the columns, "In the opinion of the undersigned, the sample referred to above is of standard quality as defined in the Drugs Act, 1976 and rules there-under"; and "Is adulterated/substandard/misbranded/s purious, as defined in the Drugs Act, 1976 for the reason given above" were scored out, meaning that the drug sent for analy sis was neither adulterated nor substandard, nor misbranded nor spurious, as defined in the Drugs Act, 1976. The relevant part of the report of the Government Analyst of the Drugs Testing Laboratory Lahore (Exh.PD) is being reproduced as under:- In the opinion of the undersigned, the sample referred to about is of standard quality as defined in the Drugs Act, 1976 and rules thereunder .
Is adulterated/sub-standard/misbranded/spurious, as defined in the Drugs Act, 1976 for the reason given about.
(Please score out which is not applicable)
In the report of Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad (Exh. PO), it is simply mentioned that Neomycin Sulphate was identified in the item sent for analysis instead of mentioning the details of the tests applied on the sample and the protocols followed as required by law. Even the names of the tests applied , if any, to determine the identity of the substance sent for analysis has not been mentioned in the report of Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad (Exh. PO). The term "protocol" has the dictionary meaning as: 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 substance under examination. No test can take place without a protocol. The Report of the Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad (Exh. PO) must have mentioned that the test applied to identify the presence of Neomycin Sulphate was in accordance with a recognized standard protocol. Any test conducted without a protocol loses its reliability and evidentiary value. But, as mentioned above, even the test applied was not mentioned in the Report of the Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad (Exh.PO). In the absence of mentioning of the test applied and the specifications applied, the report of the Government Analyst of the Drugs Testing Laboratory Lahore (Exh. PD) and the report of Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad (Exh. PO) were not in the prescribed form and were, hence, not admissible in evidence. Rule 11 (1) of the Punjab Drug Rules,1988 and Form 7 created under the Drugs Act, 1976 and the Rule (11)(1) of the Punjab Drugs Rules, 1988, framed thereunder , required that the result of the test and analysis of the item submitted for analysis must be given with specifications applied.
Undisputedly , any report failing to describe in it the result of the test and analysis of the item submitted for analysis with specifications applied , as required under the law, will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary presumption attached to a Report of the Government Analyst or the report of Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad. Reliance is placed on the cases of "The State through Regional Director ANF Vs. Imam Bakhsh and others" (2018 SCMR 2039 ), "Khair-ul-Bashar Vs. The State" (2019 SCMR 930), "Muhammad Boota Vs. The State and another"
(2020 SCMR 196), "Qaiser Javed Khan Vs. The STATE through Prosecutor General Punjab, Lahore and another" (PLD 2020 Supreme Court 57) and "Hussain Shah and others Vs. The State" (PLD 2020 Supreme Court 132)
12. It is by now well settled that a single circumstance creating reasonable doubt would be sufficient to cast doubt about the veracity of the prosecution 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. The prosecution is always bound to discharge the initial onus of proof. This is now a settled principle of law that the burden to prove the guilt of the accused always lies on the prosecution in every case. Even the slightest doubt results in failure of the case of the prosecution. The benefit of doubt is not to be granted as a concession but as of right. The prosecution, by mishandling the case, has badly failed to bring on record unimpeachable and cogent evidence to prove the culpability of the appellant. The august Supreme Court of Pakistan, in the case of "Muhammad Mansha Vs. 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 perso n 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 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 SCMR 736 ) in which it has been observed in paragraph No.13 of page 236 as infra: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer . As the preeminent English jurist William Blackstone wrote, "Better those ten guilty persons escape, than that one innocent suffer ." Benjamin Frankl in, who was one of the leading figures of early American history , went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer ." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution' s case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner . This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of This Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345 ) and Ayub Masih v. The State (PLD 2002 SC 1048 )." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution' s case automatically goes in favour of an accused."
We are of the considered view that the prosecution could not prove that the produ ct Kamran Ointment 20mg , had in it Neomycin Sulphate , as a constituent, as the report of the Government Analyst of the Drugs Testing Laboratory Lahore (Exh. PD) and the report of Drugs Control and Traditional Medicine Division, National Institute of Health, Islamabad (Exh. PO) were not in the prescribed form, hence, could not be considered proof of any fact.
13. For what has been discussed above, we are persuaded to hold that the convi ction and sentence recorded by the Drug Court, Bahawalpur Division, Bahawalpur vide judgment dated 08.04.2015, in the circumstances, are not sustainable. We, thus while allowing the instant Criminal Appeal No. 190 of 2015 lodged by Muhamad Kamran Yousaf son of Sheikh Muhammad Yousa f (appellant), set aside the judgment dated 08.04.2015 passed by the Drug Court, Bahawalpur Division, Bahawalpur and acquit the appellant namely Muhamad Kamran Yousaf son of Sheikh Muhammad Yousaf from the charge levelled against him by extending him the benefit of doubt. The appellant namely Muhamad Kamran Yousaf son of Sheikh Muhammad Yousaf is ordered to be acquitted. The sentence of the appellant namely Muham ad Kamran Yousaf son of Sheikh Muhammad Yousaf was suspended by this Court vide order dated 22.04.2015, and the appellant namely Muhamad Kamran Yousaf son of Sheikh Muhammad Yousaf is present before the Court on bail. The surety of the appellant namely Muhamad Kamran Yousaf son of Sheikh Muhammad Yousaf shall stand discharged from his liability and the bail bonds submitted by the appellant namely Muhamad Kamran Yousaf son of Sheikh Muhammad Yousaf are hereby cancelled.
14. 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 .