KAMRAN Versus State
SYED SHAHBAZ ALI RIZVI, J.--- Kamran, appellant, through instant appeal, has assailed the judgment dated 10.09.2018 passed by the learned Additional Sessions Judge, Multan in case FIR No.66 dated 24.03.2014, offence under section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station Dehli Gate, District Multan whereby, he was convicted under section 9(c) of the Act ibid and sentenced to imprisonment for life with fine of Rs.1,00,000/- 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. The learned trial court while giving the benefit of doubt, acquitted Shahid alias Aatay Wala, co-accused of the appellant.
2. Brief facts of the prosecution case, as per crime report, are that on 24.03.2014 at about 08.30 a.m., on spy information, a raid was conducted, the appellant was apprehended and during his search, 25 kilograms and 750 grams of `Charas' was recovered whereas, his co-accused Shahid alias Aatay Wala fled away from the spot.
3. After investigation, report under section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial court, after observing pre-trial codal formalities, framed the charge against the appellant on 05.01.2016 to which he pleaded not guilty and claimed trial. The learned trial Court, after completion of trial, vide its judgment dated 10.09.2018, found the appellant guilty, convicted and sentenced him as mentioned above.
4. Arguments heard. Record perused.
5. We have noticed that Bashir Ahmad, Assistant/Record Keeper, Excise and Taxation Office, Multan (PW-6), in his examination in chief, maintains that on 31.03.2014, Muhammad Shahid 3120/C (PW-1) came to the office of Excise and Taxation Officer, Multan along with road certificate and 21 sealed parcels said to contain `Charas' which were forwarded to the office of Chemical Examiner, Multan but PW-1, during his statement, did not utter a single word in this regard. We have also noticed that Zafar ud Din Shah, SI (PW-4), complainant/investigation officer of the case, during his statement, has not mentioned the detail of the seal (monogram) i.e. the alphabet on the seal required to prepare parcels of contraband allegedly recovered from the possession of the appellant. In our view, these infirmities in the prosecution evidence create doubts about the safe custody of contraband and the sample parcels of the same during their transmission to the Chemical Examiner office and the learned trial court. Moreover, the Government Analyst, office of Chemical Examiner for Punjab, Multan while preparing the report (Exh-PE) 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 the 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 all criteria and procedures for the evaluation of the test data and "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. In the instant case, the report prepared by the Government Analyst, Chemical Examiner for the Punjab, Multan (Exh.PE) does not carry separate results of tests applied regarding each sample parcel except a concluding result of twenty-one sample parcels. We are of the considered opinion that the appellant in such case of narcotics carrying a stringent sentence cannot be convicted and sentenced unless it is established definitely that the material allegedly recovered from the possession of the appellant was a narcotic that, in our view, prosecution in this case failed to do. In recent judgments passed in the case of Muhammad Boota v. The State and another (2020 SCMR 196) and Qaisar Javed Khan v. The State and another (PLD 2020 SC 57), the Hon'ble Supreme Court of Pakistan reiterated the same dictum. There remains no cavil about the proposition that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused.
For what has been discussed above, Criminal Appeal No.863 of 2018 is allowed, the conviction and sentence awarded to Kamran, appellant by the learned trial court is 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 case.
SA/K-5/L Appeal allowed.