TARIQ Versus State
CH. MUSHTAQ AHMAD, J.--- Appellant Tariq this criminal appeal has called in question the legality of judgment dated 28.5.2019 delivered by learned Additional Sessions Judge/Judge, Special Court (CNS), Phalia whereby he was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to 4-1/2-Years R.I. with fine of Rs.20000/- and in case of default of payment thereof to undergo further simple imprisonment for two months in case FIR No.129 dated 17.5.2018 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Pharianwali, District Mandi Bahauddin. Benefit of section 382-B, Cr.P.C. was extended to the appellant.
2. First Information Report (Exh.PA/I) was registered on the complaint (Exh.PA) lodged by Muhammad Abbas, ASI (PW-3) mentioning therein that on 17.5.2018 at 2.45 p.m. he along with three Constables on Mobile-II driven by Muhmmad Afzal 612/DC was on patrolling in search of drug paddlers near Al-Qadir Petrol Pump Hager Wala main Gujrat-Sargodha Road where a person from Hager Wala side came who on seeing the police party tried to slip away. On suspicion he was chased and apprehended. At the time of arrest he was holding a plastic bag of black colour containing charas in the shape of a ball which on weighing came to 1300 grams. Out of which 65 grams substance was separated for sending it to the office of PFSA for analysis purpose vide recovery memo Exh.PB.
3. Mussarat Abbas, S.I. (PW-5) conducted the investigation of this case. After completing necessary police papers he submitted report under section 173, Cr.P.C. before the court. Appellant was indicted on 3.7.2018 to which he denied and claimed trial. In order to prove charge against the appellant prosecution got examined five witnesses. Learned ADPP after giving up PW Sarfraz Ahmad 200/C being unnecessary and tendering in evidence report of Punjab Forensic Science Agency, Lahore (Exh.PD) closed the prosecution evidence on 24.12.2018.
4. Thereafter statement of accused under section 342, Cr.P.C. was recorded. In answer to a specific question 'Why this case against you and why the PWs deposed against you' position taken by the appellant was that as his cousin Abid Javed got registered FIR No.74/2016 against officials of local Police Station Pharianwali so they in order to take revenge has implicated him in the instant case falsely. In defence he produced documentary evidence in the shape of Exh.DA and Exh.DB which are copies of FIRs Nos.74/2016 and 106/2018. However, appellant did not opt to record his statement under section 340(2), Cr.P.C. in disproof of the charge levelled against him.
5. After conclusion of the case, learned trial court convicted and sentenced the appellant as mentioned in opening paragraph of this judgment.
6. The bottom line of arguments advanced by learned counsel for the appellant was that narcotics analysis report does not disclose full protocols applied to carry out the tests in this case. As such, forensic report of PFSA does not fulfill requirements of law as laid down in the judgments of Hon'ble Supreme Court of Pakistan in cases titled as 'The State through Regional Director ANF v. Imam Bakhsh and others' reported as 2018 SCMR 2039 and 'Khair-ul-Bashar v. The State' reported as 2019 SCMR 930. So, the prosecution has failed to prove charge against the appellant beyond reasonable doubt, hence, impugned judgment is liable to be set aside and the appellant be acquitted of the charge.
7. Conversely learned Deputy Prosecutor General opposed the contentions. It has been argued that appellant was found in possession of huge quantity of contraband Charas at the spot for which he could not furnish any plausible explanation; that recovery witnesses were consistent on all material aspects of the case; that forensic report of PFSA, Lahore fulfilled basic standard of test to prove that recovered substance was charas and that findings recorded by learned trial court qua involvement of the appellant were based on sound and solid reasons. So far as discrepancies pointed out by learned counsel for the appellant in the statements of prosecution witnesses it was argued that those are minor in nature which in no way creates doubt in the prosecution case. It has been prayed that this appeal is liable to be dismissed.
8. Arguments heard. Record perused.
9. At the very outset of hearing learned counsel for the appellant pointed out that PFSA report (Exh.PD) does not qualify as valid piece of evidence as is does not fulfill the standard of proof qua its protocols. Reliance is placed on the cases titled as 'The State through Regional Director ANF v. Imam Bakhsh and others' reported as 2018 SCMR 2039 and `Khair-ul-Bashar v. The State' reported as 2019 SCMR 930 wherein it was held that report of Chemical Examiner must contain full protocols adopted during test as well as reasons on which Analyst formulated his opinion. Report of Punjab Forensic Science Agency, Lahore (Exh.PD) is reproduced as ready reference which is as follows:-
Item No. Description of Evidence
01 One sealed parcel said to contain 65 gram(s) of suspected Charas.
Test Performed on Received Item(s) of Evidence
1. Top Load Balance was used for weighing.
2. Chemical Spot Tests were used for Presumptive Testing.
3. Gas Chromatography-Mass Spectrometry was used for confirmation.
Result and Conclusion
Item # 01 having net weight 65.55 gram(s) of black resinous material in sealed parcel contains Charas.
It is evident from perusal of the report that it does not indicate protocols applied to carry out the test, except concluding remarks that "black resinous material in sealed parcel contains Charas". In our view mandatory requirements of law provided under Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 have not been complied with. The result is that it is not safe to rely on this report. In a recent judgment of Hon'ble Supreme Court of Pakistan in case titled `Khair-ul-Bashar v. The State' (2019 SCMR 930) it has been again reiterated that report of Forensic Expert must mention all the tests and analysis of the alleged drug, result of each test carried out along with consolidated result and name of all protols applied to carry out these tests. Moreover, presumption of correctness attached to the report of Government Analyst under section 36(2) of the Control of Narcotic Substances Act, 1997 underlines statutory significance of the report, therefore, details of the test and analysis in the shape protocols applied for the test are necessary to safeguard rights of the parties. We have also observed that report of PFSA produced in evidence in the case of 'Khair-ul-Bashar' supra was turned down by the Hon'ble Supreme Court of Pakistan being unreliable and not worthy of credence. As report produced in the case in hand is identical to report submitted in the case of 'Khair-ul-Bashar' supra which was declared un-reliable by the Apex Court, therefor report of Punjab Forensic Science Agency, Lahore Exh.PD is also not worthy of reliance.
10. For what has been discussed above, we are persuaded to hold that the forensic report issued by the Punjab Forensic Science Agency, Laho (Exh.PD) in this case is neither valid piece of evidence nor carried al sanction of law in the light of judgment of Apex Court in 'Khair-ul-Bashar' supra, hence, the same cannot be read against the appellant. Consequently conviction and sentence recorded by the learned trial court cannot be upheld on the basis of such inadmissible evidence. Therefore, we allow this criminal appeal. The conviction and sentence of the appellant is set aside. He acquitted of the charge. Appellant shall be released from jail forthwith, if not required in any other case.
JK/T-4/L Appeal allowed.