Report of Government Analyst due in consequence of Rule 6 must provide for.........

 PLJ 2021 Cr.C. (Lahore) 323 (DB)

Control of Narcotic Substances (Government Analysts) Rules, 2001--

----R. 6--Government Analyst, Punjab Forensic Science Agency, Lahore while preparing report has not complied with mandatory provisions of Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001--Held: Report of Government Analyst due in consequence of Rule 6 must provide for (i) tests and analysis of alleged drug/narcotic (ii) results of tests carried out and (iii) test protocols applied to carry out these tests and that these three elements form fundamental and core elements of a valid report prepared by a Government Analyst--It has also been held in said case that non-compliance of Rule 6 and absence of any of these mandatory elements/requirements frustrates purpose and object of Act.                                                         [Pp. 325 & 326] A

2018 SCMR 2039 and 2019 SCMR 930.

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----S. 9(c)--Conviction and sentence--Challenge to--Benefit of doubt--Recovery of charas--In this case, report prepared by said Agency though carries names of tests yet it does not provide separate result of each test except a concluding result--Analyst has not bothered even to mention test protocols applied in carrying out required tests which of course is against mandate of Rule 6 hence, it is not safe to rely upon report of Government Analyst--Court is of considered opinion that appellant in such a case of narcotics cannot be convicted and sentenced only on basis of oral assertions unless it is established with certitude that material allegedly recovered from possession of appellant was a narcotic that, in our view, prosecution failed to do--Now prosecution case is bereft of any evidence regarding safe transmission of sample parcels between police station and office of Excise & Taxation Officer--Statements of SI (PW.4) and ‘Moharrer’ (PW.2) do not disclose fact that how and when said parcels were taken to office of Excise & Taxation Officer, Okara which fact breaks chain of circumstances qua safe custody of sample parcels required to establish credibility of report--This fact creates serious doubt regarding veracity of prosecution case against appellant--Held: High Court is of opinion that prosecution
has failed to prove its case against appellant beyond shadow of a reasonable doubt. No cavil remains about proposition that benefit of even a single reasonable doubt is to be extended to accused--Appeal was allowed.          [Pp. 326 & 327] B, C & D

PLD 2002 SC 1048.

Ms. Gulzar Butt, Advocate for Appellant.

Mr. Nisar Ahmad Virk, Deputy Prosecutor General for State.

Date of hearing: 16.1.2020.

 PLJ 2021 Cr.C. (Lahore) 323 (DB)
Present: Ali Baqar Najafi and Syed Shahbaz Ali Rizvi, JJ.
NASIR alias NASIRI--Appellant
versus
STATE--Respondent
Crl. A. No. 231049 of 2018, heard on 16.1.2020.

Judgment

Syed Shahbaz Ali Rizvi, J.--Through the instant criminal appeal, Nasir alias Nasiri (appellant/convict) has assailed the judgment dated 12.07.2018 passed by learned Additional Sessions Judge/Judge Special Court Anti Narcotics, Renala Khurd, in case FIR No. 60 dated 20.02.2018 registered for offence under Section 9(c) of Control of Narcotic Substances Act, 1997, at Police Station Saddar Renala Khurd, District Okara, whereby the appellant was convicted under Section 9(c) of the Act ibid and sentenced to rigorous imprisonment for five years and six months with direction to pay fine of Rs. 25,000/- and in default thereof to further undergo three months S.I. Appellant however, was awarded the benefit of Section 382-B of the Code of Criminal Procedure, 1898.

2. Succinctly, the facts of the case as disclosed by Muhammad Ashraf Baig, SI (PW-4) in his complaint (Exh.PC), on the basis whereof formal FIR (Exh.PA) was chalked out, are that on 20.02.2018 at 05:00 p.m. upon spy information, the appellant was apprehended and during search, 3048 grams of 'Charas' was recovered from his possession. Sale proceed Rs. 55,000/-, three mobile phones and CNICs of Nasir Ali, Shahadat and Mst. Musarrat Bibi and a motorcycle Honda CGI25 were also recovered from the appellant.

3. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898, was submitted before the learned trial Court. Formal charge was framed against the appellant on 21.04.2018 to which he pleaded not guilty and opted to face trial whereupon prosecution evidence was summoned.

4. The prosecution, in order to prove its case, produced as many as five witnesses during the trial. Muhammad Abbas, ASI (PW.1) is the scribe of FIR (Exh.PA). Muhammad Farooq HC/983 (PW.2) on 20.02.2018 received case property from Muhammad Afzal Gill, SI and on 22.02.2018 handed over the sample parcels of 'charas' to Muhammad Ashraf, SI for onward transmission to the office of Punjab Forensic Science Agency. Nasir, ASI (PW.3) is the witness, of recovery. Muhammad Ashraf Baig, SI (PW.4) complainant of the case. He also transmitted the sample parcels to the Punjab Forensic Science Aeency, Lahore. Afzal Gill, SI (PW.5) is the Investigation Officer of the case. Learned Deputy District Public Prosecutor gave up Iftikhar Ahmad 1485/C, being unnecessary and after tendering in evidence previous criminal record of appellant/convict (Exh.PE) and the report of the Punjab Forensic Science Agency, Lahore (Exh.PG), closed the prosecution evidence.

5. After completion of prosecution evidence, the statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, he denied the allegation levelled against him, professed his innocence and maintained that he had falsely been implicated in this case by the complainant due to personal grudge as his mother had filed petitions against SHO P.S. Ravi. The appellant did not opt to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 to rebut the allegation levelled against him, however, produced certain documents (Exh.DA to Exh.DD) in his defence.

6. The learned trial Court vide its judgment dated 12.07.2018, found the appellant guilty, convicted and sentenced him as mentioned above.

7. Arguments heard. Record perused.

8. We have noted that the Government Analyst, Punjab Forensic Science Agency, Lahore while preparing the report (Exh.PG) 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 held that the report of the Government Analyst due in consequence of Rule 6 must provide for (i) tests and analysis of the alleged drug/narcotic (ii) the results of the tests carried out and (iii) the test protocols applied to carry out these tests and that these three elements form the fundamental and the core elements of a valid report prepared by a Government Analyst. It has also been held in the said case that non-compliance of Rule 6 and absence of any of these mandatory elements/requirements frustrates the purpose and object of the Act. In the case of The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), in Paragraph No. 15, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:

"15. Rule 6 on the other hand stands on a different statutory footing. It provides that the Report of the Government Analyst, after the test and analysis, is to furnish the result together with full protocols of the test applied. The accuracy of test and analysis and the correct application of the full protocols alone can determine if the recovered substance is a narcotic drug or a psychotropic or controlled substance. "Protocol" 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. 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" 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." (underlining for emphasis is ours)

In this case, the report prepared by the said Agency (Exh.PG) though carries the names of the tests yet it does not provide separate result of each test except a concluding result. The Analyst has not bothered even to mention the test protocols applied in carrying out the required tests which of course is against the mandate of Rule 6 hence, it is not safe to rely upon the report of the Government Analyst dated 08.03.2018 (Exh.PG). We are of the considered opinion that the appellant in such a case of narcotics 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 that, in our view, prosecution failed to do.

9. It has also been noticed that Muhammad Farooq 'Moharrar' in his examination-in-chief has deposed that on 22.02.2018, he handed over the sealed sample parcels to Muhammad Ashraf Baig, SI (PW.4) for onward transmission to the office of the Punjab Forensic Science Agency and as per statement of (PW.4), he received sample parcels from Farooq Ahmad, Moharrar for onward transmission to the office of the Punjab Forensic Science Agency and deposited the same in the said office on the same day intact whereas, report of the said Agency (Exh.PG) transpires that the sample parcels were dispatched to the said Agency by the Excise and Taxation Officer, Okara through Muhammad Ashraf Baig (PW.4) which were received by the office of the Punjab Forensic Science Agency on 22.02.2018. Now the prosecution case is bereft of any evidence regarding the safe transmission of sample parcels between the police station and the office of the Excise & Taxation Officer. The statements of Muhammad Ashraf Baig, SI (PW.4) and Muhammad Farooq 'Moharrer' (PW.2) do not disclose the fact that how and when the said parcels were taken
to the office of the Excise & Taxation Officer, Okara which fact breaks the chain of circumstances qua safe custody of sample parcels required to establish the credibility of report (Exh.PG). This fact creates
serious doubt regarding the veracity of prosecution case against the appellant.

10. In this view of the matter, this Court is of the opinion that the prosecution has failed to prove its case against the appellant beyond the shadow of a reasonable doubt. No cavil remains about the proposition that the benefit of even a single reasonable doubt is to be extended to the accused. The Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The State (PLD 2002 SC 1048) was pleased to observe as under:

"... The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted ..."

11. For what has been discussed above, Crl. Appeal No. 231049 of 2018 is allowed, conviction and sentence awarded to Nasir alias Nasiri, appellant by the learned trial Court is hereby set
aside and he is acquitted of the charge levelled against him. He is in custody, be released forthwith if not required to be detained in any other case.

(A.A.K.)          Appeal allowed