ISHTIAQ IBRAHIM, J.---Through the present appeal, Zabit Khan son of Kabal Khan, appellant herein, has called into question the validity of the judgment dated 10.01.2019 of learned Additional Sessions Judge-II/Judge Special Court, Kohat, rendered in case FIR No.400 dated 19.12.2017 under section 9(c) CNSA read with sections 420/ 468/471, P.P.C. registered at Police Station, Jarma, Kohat, vide which the appellant was convicted and sentenced as follows:-
(i) Under Section 9(c) CNSA to undergo rigorous imprisonment for life with a fine of Rs.300,000/-, or in default of payment of fine, shalt further undergo simple imprisonment for six months.
(ii) Benefit of Section 382-B, Cr.P.C. was extended to him.
2. The brief and essential facts of the prosecution case are that on 19.12.2017 Waqar Ahmad, S.H.O. along with other police contingent were busy in checking of vehicles at Muslim Abad Check Post, when at about 22:10 hours a motorcar bearing Registration No.LEB-10-9969 reached the spot, which was intercepted for the purpose of checking; that on query the driver of the car disclosed his name as Zabit Khan son of Kabal Khan of Khyber Agency; that during search of the motorcar 17 packets charas garda each packet weighing 1200 grams and one packet opium weighing 1200 grams were recovered from the CNG Tank installed in Degi of the car; that sample of five grams from each packet of charas garda and opium were separated for chemical analysis, sealed into separate parcels while the remaining quantity of contrabands were sealed into separate parcels. The complainant arrested the accused, took into possession the contraband i.e. charas garda and opium along with motorcar through recovery memo, drafted murasila and sent the same to police station through constable Noor Muhammad for registration of case FIR against the accused.
3. On completion of investigation, challan was put in Court against the appellant. Formal charge was framed against him, to which he did not plead guilty and claimed trial.
4. In order to bring home charge against the appellants, the prosecution produced as many as six PWs.
5. On closure of prosecution evidence, statement of accused under Section 342, Cr.P.C. was recorded, wherein he denied the allegations levelled against him. He neither wished to be examined on Oath under section 340(2), Cr.P.C. nor opted to produce defence evidence.
6. On conclusion of trial, after hearing the learned counsel for the parties and appraising evidence on the file, the learned trial Court through the impugned judgment dated 10.01.2019, convicted and sentenced the appellant, as mentioned in the opening paragraph of the judgment. Feeling aggrieved from his conviction and sentences, the appellant has filed the instant criminal appeal before this Court.
7. We have heard arguments of the learned counsel for the parties and perused the record with their valuable assistance.
8. The complainant of the case namely Waqar Ahmad S.H.O. (PW-4) appeared before the Court and supported the contents of Murasila (EX PA/1), the alleged recovery of narcotic, its weighment and preparation of samples. The complainant / seizing officer (PW-4) in his initial report (EX PA/1) as well as Court statement stated that he sent murasila to police station through constable Muhammad Noor for registration of case FIR, but, the said Muhammad Noor constable has been abandoned by the prosecution being unnecessary. The complainant in his examination-inchief stated that; "On checking of vehicle through Lal Zada No.512, Incharge of PP, from the CNG tank fixed in the diggi of motorcar, recovered 17 packets of charas garda and `one packet of opium."
However, in cross-examination he stated that; "I myself recovered the packets and not by the Lal Zada from the CNG tank. It is correct that if any PW deposes before the Court that Lal Zada suspected and opened the CNG tank through tools, his statement would be incorrect and he would not be present on the spot with me." Contrary to the above referred statement of complainant, Muhammad Faisal Khan LHC (PW-3) the marginal witness to the recovery memo (EX PW 3/1) in his cross-examination stated that; "The CNG tank was detached by Lal Zada, incharge of the PP. Lal Zada, as per my knowledge was a little bit having knowledge of CNG tank. Lal Zada HC suspected absence of CNG in CNG tank and he accordingly told us."
Javed Hussain, the Investigating Officer (PW-1) in his cross-examination stated that; "The samples were handed over to me by the SHO at the spot in sealed condition. Samples parcels were handed over to Muharrir by me on the same, when I returned from the spot. I have not recorded statement of anyone including Muharrir regarding handing over samples parcels to him for onward submission to the KBI Unit Today I have perused the statement of PW Lal Zada No.512 recorded under section 161, Cr.P.C., as per which, he made the recovery from the vehicle." Complainant PW-4 in cross-examination further stated that each packet consists of a single hard form slab and was not in powder form, that there is no difference between charas and charas garda, that he has not drafted application for FSL nor the said application is available on file, that I have not produced the case property before the Magistrate, a suggestion was put to this PW which he replied by stating that; "It is incorrect to suggest that neither the opium nor the charas was in the shape of pieces or round ball shape but in fact, all the packets are in shape of slabs." While Muhammad Faisal LHC (PW-3) in cross- examination stated that; "Each packet was in shape of single slab. Opium was not in form of slabs.
It is correct that the opium was in round shape." On the request of learned defence counsel, the parcels of case property was de-sealed for verification of slab and the charas garda packet and round shape opium. The parcel of opium was found consists of several pieces. Parcel No.1 containing charas garda was found in the shape of pieces, parcel No.2 was full slab, parcel No.3 in shape of different separate pieces, parcel No.4 was in the round shape and the remaining parcels were also found in full slab and pieces. It is also pertinent to mentionhere that Javed Hussain, the I.O. of the case (PW-1) in cross-examination stated that samples parcels were handed over to Muharrir by him on the same day, when he returned from the spot, but, Wali Badshah HC (PW-6) deposed that he was posted as Moharrir at Police Station Jarma, on 19.12.2017 constable Muhammad Noor No.14 produced the murasila to him in the P.S., the contents of which he incorporated in FIR EX PA; that later on, the S.H.O. handed over to him the case property consisting of parcel No.19 containing 20315 grams charas and parcel No.20 containing 1195 grams opium in sealed condition, however, he did not utter a single word regarding the parcels of samples to have been produced by Javed Hussain I.O. It is also significant to note that PW-6 Wali Badshah being Muharrir of the PS during the days of occurrence, has not stated a single word regarding sending of samples to the FSL, however, perusal of FSL report (EX PZ) reveals that the samples of contraband were delivered in the laboratory on 21.12.2017 by FC No.28, but, it is strange to note the said constable has not been examined by the prosecution, the prosecution has failed to prove shifting of samples to the PS and from there to the FSL, especially when copy of the application for sending samples to the FSL is not available on case file.
9. Now coming to the report of FSL (Ex-PZ) that; whether the same fulfills the requirement of Rule-6 of the (Government Analysts) Rules, 2001 or otherwise. The ibid report upon its perusal does not signify the test protocols that were applied to carry out the test; therefore, the mandatory requirement of law provided by Rule 6 has not been complied with in its letter and spirit; the non- compliance of the ibid Rule would render the said report inconclusive, suspicious and untrustworthy and; the same could not be relied upon qua maintaining the conviction and sentences of the accused/appellant in the circumstances, as it lacks evidentiary value. 2019 SCMR 930 Khair-Ul-Bashar v. The State and 2020 SCMR 196 Muhammad Boota v. The State and another. The ibid preposition was again reaffirmed by the august Apex Court in Qaiser Javed Khan's case reported in PLD 2020 Supreme Court 57. The relevant portion is reproduced below for ready reference; "Now coming to the report of FSL (EX-PZ) that; whether the same fulfills the requirement of . Rule 6 of the (Government Analysts) Rules, 2001 or otherwise. The ibid report upon its perusal does not signify the test protocols that were applied to carry out the test; therefore, the mandatory requirement of law provided by Rule 6 has not been complied with in its letter and spirit and; the non-compliance of the ibid Rule would render the said report inconclusive, suspicious and untrustworthy; which lacks the evidentiary value and the same could not be relied upon qua maintaining the conviction and sentence of the accused/appellant. 2019 SCMR 930 Khair-Ul- Bashar v. The State and 2020 SCMR 196 Muhammad Boota v. The State and another PLD 2020 Supreme Court 57 Qaiser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another. The relevant portion is reproduced below for ready reference;-
6. The Report of the Government Analyst in this case specifies only the tests applied and not the protocols thereof. 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 experiments." These definitions are in Ike with the elaboration of the term "protocol" given in Imam Bakhsh wherein the Court stated the expression "protocol" to mean an explicit plan of an experiment, procedure or test. 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 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). This sequence, for clarity and better understanding can be envisaged as follows: Test AppliedProtocols (applied to carry out the tests) Results of the lest(s)
7. 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 lacunas 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, as observed in Khairul-Basliar. The Courts are free to examine the contents of the Report and to assess its evidentiary value (weight), a matter distinct from its admissibility.
8. The Report of the Government Analyst in the instant case does not specify the protocols of the tests applied and thus does not meet the requirements of the law as interpreted by this Court in the cases of Imam Bakhsh and Khair-ul-Bashar (supra). The said Report cannot be relied upon for the conviction of the petitioner. Therefore, the petition is converted into an appeal and allowed.
The conviction and sentence of the petitioner are set aside. He shall be released forthwith if not required to be detained in any other case."
10. For safe administration of criminal justice the Court is to appraise the evidence brought on record minutely, and if a single doubt arises there from, the benefit of which must be extended to the accused. It seems that the trial Court was influenced by the huge quantity involved in the case and extended every possible benefit to the prosecution, in contrast to the true import of Section 29 of CNSA. In such like cases, for the safe administration of criminal justice, law mandates that Courts are to be conscious of not the quantity of contraband, but the quality of evidence produced in the Court for reaching a correct conclusion and just decision of the case. In this respect we are also fortified by the judgment of Hon'ble Supreme Court rendered in Shahzada's case (2010 SCMR 841), wherein it was held that; "We have heard the learned counsel for the parties and have perused the record of this case very carefully. As regards the appellants, who were simply sitting in the car, their case is distinguishable from the case of the Driver and for involvement of such persons the prosecution is required to lead some evidence to show that they had knowledge of the property lying in the car or they had abetted or conspired with the Driver in the commission of the crime. No such evidence has been led by the prosecution to prove the above aspects of the case so as to make the appellants responsible for the commission of the crime along with the Driver. If the property would have been lying open within the view of the appellants or they knew the placement of the property then the situation would have been different. In such a situation, the appellants were required to explain their position, as required under Article 122 of Qanun-e-Shahadat Order, 1984 and without such explanation their involvement in the case would have been proved. As the property was not within their view and they had no knowledge of the placement of the property, therefore, they cannot be held responsible and in joint possession of the property with the Driver.
As such the case of the prosecution against the appellants is highly doubtful".
Keeping in view the mode and manner of recovery of contraband from the CNG tank of the motorcar in question specially when there is no alternative arrangement of fuel tank and other shortcoming in the prosecution evidence accumulatively, we accept this appeal, set aside the impugned judgment dated 10.01.2019 and; acquit the convict-appellant of the charge under Section 9(c) CNSA, 1997 levelled against him. The appellant be set free forthwith, if not wanted in any other case.
Above are the detailed reasons of our short order of even date.