IQBAL AHMED KASI, J. Through the instant appeal, appellant Muhammad Faisal son of Daroo Khan has challenged the validity of the judgment dated 27th April, 2023 (`the impugned judgment') passed by the Additional Sessions Judge-VI/MCTC-II, Quetta (`the trial Court'), whereby, he was convicted under Section 9(1)3C of Control of Narcotic Substances Act, 2022 and sentenced R.I. for 09 (nine) years and to pay a fine of Rs.80,000/- (rupees eighty thousand), in default thereof to further suffer S.I. for 08 (eight) months. The appellant was further convicted under Section 9 (1) 6 B of Control of Narcotic Substances Act, 2022 and sentenced R.I. for 07 (seven) years and to pay fine of Rs.25,000/- (rupees twenty five thousand), in default thereof to further suffer S.I. for 04 (four) months and further convicted under Section 9 (1) 6 B of Control of Narcotic Substances Act, 2022 and sentenced R.I. for 07 (seven) years and to pay a fine of Rs.25,000/- (rupees twenty five thousand), in default thereof to further suffer S.I. for 04 (four) months. All the sentences were ordered to be run concurrently with benefit of Section 382(b), Cr.P.C.
2. Briefly stated facts of the case are that an FIR No.149 of 2022, was registered with Police Station, Saddar, Quetta, under Section 9(c) of the Control of Narcotic Substances Act, 1997, on the report of complainant Tajamal Abbas, SI, with the allegations that on 13.09.2022, he along with other Police officials during patrolling of the area, received spy information that one Muhammad Faisal, who is involved in business of narcotics is present at Sheikh Umer Road, near graveyard with huge quantity of narcotics. On such information, at about 04:15 p.m. they reached at Sheikh Umer Road and on the pointation of spy/informer, apprehended the accused, who was holding a black shopper in his hand and on search, two slates of charas, total weighing 1800 grams crystal/ice, weighing 200 grams and intoxication tables, weighing 300 grams were recovered from his possession. Out of total recovered substances, 10 gram of charas, 10 gram of crystal/ice and 10 grams of intoxication tables were separated from each piece for chemical analysis and prepared sealed parcels Nos.1A to 4A, whereas, remaining narcotics were kept in sealed parcels and taken into possession through recovery memo in presence of witnesses. Consequently, the FIR was registered.
3. After denial of the charge under Sections 9(1)3C and 9(1)6-B of the Control of Narcotic Substances Act, 2022, the prosecution examined PW-1, Tajamal Abbas, SI, who is complainant of the case, produced Marasilla Ex.P/1-A. PW-2 Amjad Ali, ASI recovery witness, produced recovery memo. of charas, crystal/ice and intoxication tables as Ex.P/2-A, parcel No.1, cloth, sample of seal, baked charas as Art.P/1 to Art.P/3, parcel No.2, cloth, sample of seal, crystal/ice weighing 190 grams as Art.P/7 to Art.P/9, parcel No.4, cloth, sample of seal, tables weighing 290 grams as Art.P/10 to Art.P/13, parcel No.5, black shopper as Art.P/14 and Art.P/15. PW-3, , Arshad Abbas, circumstantial witness, received parcel Nos. 1A to 4A and parcel No.5 from the Investigating Officer, kept the same in Malkhana, made entry in Register No.19 at serial No.904 and produced the same before the trial Court as Mark-1. PW-4 Shoukatullah, ASI, Investigating Officer of the case, placed on record FIR, site map of place of occurrence, complete challan and FNTL reports as Ex.P/4-A to Ex.P/4-G.
4. On completion of evidence of prosecution, the appellant was examined under Section 342, Cr.P.C., wherein, once again he denied the prosecution allegations and claimed his innocence, however, neither he recorded his statement on oath, as envisaged under Section 340(2), Cr.P.C., nor produced any witness in his defence.
5. The learned trial Court, vide impugned judgment convicted and sentenced the appellant in a manner mentioned in para supra, hence this appeal.
6. Learned counsel for the appellant inter alia contended that the appellant has been involved in the instant case with mala fide intention and ulterior motive; that there are major contradictions and dishonest improvements in the testimony of prosecution witnesses, which make the case doubtful, but benefit of the same has not been extended in favour of the appellant; that the evidence available on record was not appreciated in its true perspective and undue weight was given to the prosecution side; that the prosecution has failed to establish the chain of safe custody and safe transmission of the contraband material; that the procedure for test of contraband material followed by the chemical examiner is not in line with the relevant provision of law and recommended methods for the identification and analysis of synthetic cathinones in seized material by the United Nations Office on Drugs and Crime; that the prosecution has failed to establish the case against the appellant beyond the shadow of doubt, thus, the impugned judgment of the trial Court is bad in eyes of law and liable to be set aside.
7. Learned APG in rebuttal contended that the prosecution witnesses proved the recovery of narcotic substances from the exclusive possession of the appellant; that the FSL reports further corroborated the ocular account to the effect that narcotics substances recovered from the appellant were charas, crystal/ice and intoxicant tablets.
8. We have heard the learned counsel for the parties and have gone through the record of the case. In order to prove the factum of arrest of the appellant and recovery of alleged contraband material, the prosecution produced four witnesses. Thorough study of the statements of the prosecution witnesses and their cross-examination depict dishonest improvements and contradictions amongst them on certain points. PW-1 in his statement recorded before the Court contended that he along with Muhammad Amjad, ASI, Constable Muhammad Arshad and other Police officials were on gusht duty that in the meanwhile, the spy/informer came and informed that a person known as Faisal (the appellant), who is resident of Pashtoonabad, Quetta, possessing a huge quantity of contraband material, is present at the graveyard of Sheikh Umar Road, whereas, the PW-2 in cross-examination, replying to question No.7 deposed that the spy/informer, told about presence of appellant through mobile phone, where after, they proceeded to the place of occurrence. PW-1 further deposed that when the appellant was apprehended, he conducted his personal search, while, the PW-2 negating the statement of PW-1 stated that when the appellant was apprehended, Constable Ayaz made his search. During his statement, the PW-1 stated that when the contraband material, recovered from the possession of the appellant was weighed, it appeared as, baked charas 900 grams each (slate shape), total 1800 grams, crystal/ice 200 grams and intoxicant tables 300 grams, out of which, from the baked charas 10/10 grams were separated for chemical analysis and sealed in parcel Nos.1 and 2, the remaining baked charas i.e. 890/890 grams for chemical analysis were sealed in parcel No.3, whereas, remaining 190 grams were sealed in parcel No.3A, while from the recovered intoxicant tablets 10 grams were separated and sealed in parcel No.4, whereas, remaining 290 grams, sealed in parcel No.4-A and black color parcel No.5 were sealed in white color sacks. Such portion of statement of the PW-1 is also contradictory to the statement of PW-2, as he in his statement nowhere states about preparation of parcel No.4, which means that either parcel No.4 was never prepared, or if it was prepared so, then not presented before the Court. Furthermore, this portion of statement of PW-1 is also silent with regard to separation of representative samples for chemical analysis from the crystal/ice, allegedly recovered from the possession of the appellant. Moreover, the PW-2 during cross- examination admitted the fact that when the complainant Tajamal Abbas, SI was preparing the Marasilla, at that time he wrote the case number over the parcels. It is amazing and strange to note that even prior to registration of FIR, the complainant was well aware about the case number, which he mentioned over the parcels, when he was preparing the Marasilla. Besides this, the PW-2 during cross-examination also admitted the facts and stated that: Moreover, major contradictions, which are not ignorable, can be seen in the testimony of the prosecution witnesses with record to recovery of contraband material and presence of contradictions in the statements of the prosecution witnesses, make the case doubtful. Whereas, it is well settled that in order to bring home guilt in narcotic cases, prosecution must bring reliable evidence in support of its charge and it has held umpteenth time by the superior Courts that a single doubt in the case against an accused would be sufficient to acquit him instead of existence of series of contradictions. Even otherwise, record is also indicative of the fact that the driver, who took the written complaint and was also the eye-witness of the occurrence and witness of the recovery memorandums, was not produced before the Court, thus, conclusion is drawn from the circumstances of the case that by not producing the driver, the prosecution has dent its case and also created serious doubts. Reliance is made to the case of "Minhaj Khan v. The State", 2019 SCMR 326.
9. Apart from above contradictions and defects, we have also observed that the prosecution has failed to satisfactorily establish the safe custody and transmission of the alleged recovered contraband from the spot of recovery to the Police Station and then from the Police Station till its receipt by the Forensic Science Laboratory, as PW-3, who is the person who received the contraband material by the hands of complainant, prepared the Register No.19 and then handed it over to the Investigating Officer for its transmission to the Laboratory for chemical analysis. He while answering a question during cross-examination replied that the Investigating Officer received samples from Malkhana on the very next day i.e. 14.09.2023, while the Investigating Officer (PW-4) in reply to question No.9 stated that he received samples from Malkhana on 16.09.2023, whereas, the FSL reports Ex.P/4-D to Ex.P/4-G also depict the date of receiving of representative samples on 16.09.2023, through memorandum LTR. No.190/5A, dated 14.09.2022. It appears that the representative samples were received by the Investigating Officer on 14.09.2023 and after receiving the same, the memorandum dated 14.09.2023 was also prepared, but the samples were presented to the chemical examiner on 16.09.2023 with delay of about two days and in this respect no explanation is given that for such two days the parcels were in whose possession and kept where. It has already been declared by the Hon'ble" Supreme Court in the case of "State through Regional Director ANF v. Imam Bakhsh", (2018 SCMR 2039) that in a case where safe custody of the recovered substance or safe transmission of the samples of the recovered substance is not established by the prosecution then it cannot be held that the prosecution had succeeded in establishing its case against an accused person. Furthermore, the perusal of copy of Register-19, produced by PW-3 reveals that there is no entry regarding handing over the representative samples to the Investigating Officer for its transmission to the Federal Narcotics Testing Laboratory Balochistan, Quetta, not any signature is taken from the Investigating Officer and this fact was admitted by the PW-3 in response to question Nos.3 and 5 and stated that: It is also evident from the record that the prosecution though produced a leaf/photocopy of Register No.19, in the Court, but the same has not been exhibited and just the word 'marked' is mentioned therein. It is settled law that document which has not been exhibited, cannot be read in the evidence. It is also matter of record that prosecution in support of its case has not produced the copy of Roznamcha entry of leaving the Police Station for patrolling, which defect is sufficient to knock down the entire prosecution story as the base of the prosecution story is not supported by the documentary evidence. In this context reliance can well be placed to the judgment reported as "Qalandro alias Nazro v. State", 1997 MLD 1632, wherein, it was observed that non-production of Roznamcha/DD report, showing departure of the Police party from Police Station creates doubt in relation to the genuineness of the prosecution story. The stated dicta was further followed in the case reported as "Aijaz Ali v. State", 2001 YLR 1493. The production of entry of daily diary report in the instant case was more essential to establish the case as the entry in the Roznamcha was for specific purpose of patrolling, during which the appellant was apprehended along with contraband material.
10. Apart from above facts, we have also noticed that the Government Analyst of the Federal Narcotics Laboratory Balochistan, Quetta, while preparing the reports Ex.P/4-D to Ex.P/4-G has not complied with the mandatory provisions of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001. 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 if the same have not been complied with the report of Government Analysts due in consequence of Rule 6 loses its reliability and evidentiary value. It has also been held that 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. The term "Protocol" as observed in the case of "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039), 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 alt 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' includes 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.
Similarly, the Hon'ble Supreme Court in case of "Qaisar Javed Khan v. The State and another" PLD 2020 SC 57, reiterated the same dictum, however, to further clarify it to the government analyst testing laboratories, it was directed that 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). The sequence, for clarity and better understand can be envisaged as follows: Test Applies Protocols (applied carry out the test)Results of the test(s)
11. Likewise, the United National Organization on Drugs and Crimes (UNODC) guidelines provides two kinds of tests of the materials viz 'presumptive test and confirmative test' and the presumptive test be mentioned before endorsing/opinion upon the confirmative test, while result of both the tests be mentioned separately. In the case in hand, the reports of chemical examiner i.e. Ex.P/4 to Ex.P/4-G does not carry separate result of each test applied rather the reports contain that "a. After presumptive and confirmative tests, results of the test are positive. b. As per test protocol the submitted sample is identified as "Hashish Pukhta". The reports in absence of applying both presumptive and confirmative tests and without applying the guidelines as provided by the Hon'ble Supreme Court in case supra cannot be termed to be in consonance of the guideline provided therein. Such, defective reports are customarily observed in cases, wherein recovery of narcotics is alleged to have been recovered. It also appears from perusal of Government Analysis Reports that two tests are performed by the Federal Narcotics Testing Laboratory Balochistan Quetta i.e. Fast Blue B Salt Test and Thin Layer Chromatograph (TLC) Test. The Federal Narcotics Testing Laboratory Balochistan has considered the Thin Layer Chromatography Test as confirmative test, which is in contravention of UNODC recommendations. As per UNODC Manual i.e. Recommended Method for the Identification and Analysis of Synthetic Cathinones in Sized Materials, 2015 (clause 4.6) TLC is mere a presumptive test. The relevant clause is reproduced herein below: "4.6 Thin Layer Chromatography (TLC)
TLC is a common used technique for the separation and identification of illicitly used drugs. It is inexpensive, rapid, sensitive and flexible in the selection of both the stationary and mobile phase and amendable to a wide variety of substances, in base and sale form, ranging from the most polar to non-polar materials. A retention factor (Rf) can be calculated for each compound within a sample to provide a tentative discrimination of compounds within a drug class.
Distance from origin to sample spot Rf Value = .........................................
Distance from origin to solvent front TLC is frequently used in the analysis of illicitly used drugs, as it is cheap, easy to use, gives a certain degree of specificity and is capable of simultaneous drug detection. As with presumptive test, however, TLC is not considered a confirmatory test and is only used as a screening method. In 1990, Lehmann et al. [35] proposed a method to identify cathinone from that and this was corroborated by Lee in 1995 [36]."
12. It is observed with grave concern that this Court persistently directed the Government analyst/examiner, as apparent from an unreported judgment of this Court, passed in Criminal Appeal No.629 of 2021, dated 31st October, 2022, authored by his Lordship, Justice Muhammad Kaman Khan Mulakhail, to remain careful and to follow the guidelines postulated by the Hon'ble Supreme Court and the procedure given in the UNODC guidelines and apply both the test of presumptive and confirmative, as without applying both the tests, any report or opinion rendered therein cannot be considered to be unambiguous and supportive to the prosecution case and in this respect a specimen report in tabulated form was also , given to be followed strictly, but for the reasons best known to him/them, no heed is being paid, which is unconscionable.
13. We are of the considered opinion that the appellant in such case of narcotics carrying a stringent sentence 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, which in our view, the prosecution in this case has failed to do so.
Therefore, no cavil is left to hold that establishing an unbroken chain of safe custody of contraband items is necessary for conviction in narcotics cases, because recovery in such cases is not mere corroboratory piece of evidence rather it is always required to be proved independently and beyond the shadow of any reasonable doubt.
14. In view of above, coupled with the other above mentioned reasons, we hold that in this case, the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. There are so many defects and contradictions in the prosecution case/evidence; thus, the prosecution case appears to be doubtful and benefit of same should be extended in favour of the petitioner. In this regard reliance is placed to the case titled as "Tariq Pervez v. The State" 1995 SCMR 1345, wherein, it has been held by the Hon'ble Supreme Court of Pakistan that:- "It is settled law that it is not necessary that there should many circumstances creating doubt. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
The same principle has been laid down by the Hon'ble Supreme Court of Pakistan in case titled as "Muhammad Aslam v. The State" 2011 SCMR 820, wherein, it has been held that:- "It is well settled legal principle regarding dispensation of justice in criminal case that if any reasonable doubt is created in the case of the prosecution then its benefit is to be extended to the accused party."
For the above reasons, the appeal is accepted and the impugned judgment dated 27.04.2023, passed by the Additional Sessions Judge-VI/MCTC-II, Quetta, is set aside and while extending benefit of doubt, the appellant Muhammad Faisal son of Daru Khan, is acquitted of the charge, in case FIR No. 149 of 2022 of Police Station Saddar, Quetta. The appellant is in custody, he shall be set at liberty if not required in any other case.