2021 PLP 2005 (SCMR)

SARDAR TARIQ MASOOD, J.

Through this appeal by leave of the court appellant Shafa Ullah khan impugns the judgment dated 18.03.2019 passed by a learned division Bench of the Lahore High Court, Lahore through which appeal filed by the appellant against his conviction; and sentence under section 9(c) of the Control of Narcotic Substances Act, 1997 (the 'Act') awarded by the trial court was dismissed in case FIR No. 14 dated 05.01.2017 registered under section 9(c) of the Act at Police Station City District Miarmrali. Leave granted by this court on 26.11.2019 is reproduced as under:- "Learned counsel for the petitioner relied upon the judgment of this Court reported as State v. Imam Bakhsh (2018 SCMR 2039) and contends that the FIR is silent regarding the protocol, tests and their result.

2. For the foregoing, leave to appeal, inter-alia, is granted to consider this aspect of the case. Criminal Misc. No. 736 of 2019 Notice."

2. Learned counsel appearing on behalf' of the appellant contends that the detail of protocol has not been mentioned in the report of Punjab Forensic Science Agency (the 'Agency') hence appellant is entitled for the acquittal on this score only. No other point was agitated by the learned counsel for the appellant and he mainly relied upon the cases reported " as State v. Imam Bakhsh (2018 SCMR 2039) and Qaiser Javed Khau v. The State through Prosecutor General Punjab, Lahore and another (PLD 2020 SC 57). 2(sic.) We have heard the learned counsel for the appellant as well as the learned counsel for the State and perused the available record with their able assistance. 6(sic.) According to prosecution case appellant was apprehended red handed and Charas weighing 2880 garams and Heroin weighing 270 garams were recovered from the exclusive possession of the appellant along with Rs.65,000/- (Rupees Sixty Five Thousand). Sana Ullah, Constable (PW-02) and Zafar Ullah, sub-Inspector (PW-04) are the recovery witnesses and complainant respectively. They both remained consistent on the point that it was appellant in whose exclusive posses: ion the narcotic mentioned above was recovered. The whole recovered Charas and Heroin were sent to the Agency and narcotics were tested positive through the report of the Agency. Both the witnesses had no animosity against the appellant and they remained affirmed during cross-examination. They had no reason to falsely implicate the appellant. Both the courts below found their testimonies reliable and truthful and came to the conclusion regarding the guilt of the appellant and we, on our own independent evaluation of the evidence, are not able to take a different view other than drawn by the courts below. No discrepancy in their statement was pointed out by the learned counsel for the appellant. The safe transmission of the narcotics to the concerned Agency was also established by the prosecution by producing Moharrar whereas cmaplainant himself after taking the parcel from the Moharrar transmitted in the said Agency. The case property was exhibited in the court. So the prosecution proved its case against the appellant through trustworthy evidence and other circumstances of the case. So far as the argument of the learned counsel regarding non-mentioning of the detail of the protocol is concerned although in Imam Bakhsh's case it is mentioned that protocol has to be mentioned in the report but subsequently in Qaisar Javed Khan's case it was further elaborated as under: - "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 purpose 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 testis). This sequence, for clarity and better understanding can be envisaged as follows; Test Applied Protocols (applied to carry out the test) Results of the test(s) In the present case in the report of Agency, the test applied, protocol and result of the test has been mentioned however detail of the protocol is not mentioned. This matter was further clarified that if there is any ambiguity in the report the same may be resolved by the trial court by exercising its powers under proviso to section 510 of the Criminal Procedure Code. So we have not found any ambiguity in the Agency's report and there is no infirmity in the impugned judgment and the conclusion drawn by the courts below regarding :he guilt of the appellant is not open to any exception. Even otherwise the appellant had already I served out his sentence and has been released from jail on 27.03.2021 (according to the report of Superintendent Central Jail, Mianwali). Consequently, this appeal is dismissed. Criminal Miscellaneous Application No. 736 of 2019 7 As main appeal has been dismissed, this petition has lost its relevance hence dismissed as such. MWA/S-49/SC Order accordingly.