' Through this appeal the appellant has challenged the judgment dated 24-1-2000 passed by the learned VIII Additional Sessions Judge, Karachi South, in Sessions Case No,247 of 1999 (State v.
Sameer) whereby the trial Court convicted the appellant for offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the "the Order") and sentenced him to suffer R.I. For two years and fine of Rs,5,000 or in default the accused shall suffer S.I. For three months more. So far section 3 of the Order, learned trial Judge acquitted the appellant of the said charge on account of prosecution being miserably failed to bring home guilt of the accused since no purchaser was arrested by the police nor the accused was found selling heroin. However, the appellant was also extended benefit of section 382-B, Cr .P.0 .
2. The brief facts of the prosecution case are that on 2-3-1999, S.-I., Raja Muhammad Ashraf set the law into motion by registering this F.I.R. Stating therein that on the eventful day when he alongwith A.S.-I. Ghulam Yaseen was busy in Illaqa patrolling having Government vehicle, he received information through their Special Informer that a person was standing at Mir Ali Hassan Ali Road, Nawa Lane, Lyari Kalakot, Karachi and selling heroin. Having received such information, they reached at the spot at about 7-50 a.m. And found a suspect standing there, who upon apprehension disclosed his name as Sameer son of Abdul Rasheed. Upon conduct of search of his person in presence of witnesses namely A.S.-I. Ghulam Yaseen and PC-3896, Qazi Alam three packets containing 15 grams of heroin and sale proceed amount of Rs,200 were recovered from the right side pocket of his wearing shirt. Accordingly, recovered heroin was sealed at the spot and taken into possession, appellant was arrested and F.I.R., as above, was registered.
3. The trial Court framed the charge against the appellant/accused, to which he pleaded not guilty and claimed to be tried.
4. At the trial, prosecution examined P.W.1 P.C. Qazi Alam as Exh.5 who produced memo. Of arrest and recovery as Exh.6 and complainant Raja Muhammad Ashraf as Exh.7, who produced F.I.R. As Exh.8, report of Chemical Examiner as Exh.9.
5. The statement of accused under section 342, Cr.P.C. Was recorded vide Exh.11 who denied the allegation of charge against him. He further stated that his maternal-uncle Professor Muhammad Iqbal Baloch prior to this incident had made applications against the complainant of this case and other police officials and, therefore, police implicated him in this false case. The appellant did not examine himself on oath nor led any evidence in his defence.
6. The learned trial Court after hearing the arguments of learned counsel for the respective parties passed the impugned judgment as mentioned above.
7. I have heard the learned counsel for the respective parties and perused the record.
8. It has been contended by the learned counsel for the appellant that the learned trial Court has only relied upon the evidence of complainant/Investigating Officer Raja Muhammad Ashraf and P.C. Qazi Alam who being the police officials are interested whereas there is no independent witness. It has, further, been contended that admittedly the place of incident is thickly populated area and surrounded by population but no witness from the locality has been cited which fact clearly shows the destroy of the prosecution case being doubtful. It has, also, been contended by the learned counsel for the appellant that according to the F.I.R. The incident took place on 2-3- 1999 but, admittedly, the recovered heroin, without being weighed at the spot, was sent to Chemical Examiner on 19-4-1999 inasmuch as such dispatching of recovered heroin after the delay of 17 days is quite unexplained. It has, also, been contended by the learned counsel that since Investigating Officer in his cross-examination has admitted that the maternal-uncle of the appellant moved applications against him and also against other police officials, false implication of the appellant cannot be ruled out. Learned counsel, in support of his contentions, has relied upon the cases of Muhammad Arif v. The State 1993 PCr.LJ 1953, Rehmat Ali v. The State 1994 PCr.LJ 475, Shabbir Ahmed and others v. The State 1994 PCr.LJ 478, Tariq Pervez v. The State 1995 SCM R 1345, Nazir Ahmed alias Haji and another v. The State 1995 SCM R 1347, Muhammad Mureed v. The State 1995 PCr.LJ 1987, Mian Iftikhar Ahmed Sukhera v. Munawar Hussain Shah, M.I.C. Illaqa Magistrate Gulberg, Lahore and 3 others 1996 PCr.LJ 444 and Qutubuddin v. The State 1999 PCr.LJ 1572 .
9. Mr. Sardaruddin, learned counsel appearing on behalf of the State has supported the impugned judgment on the ground that both the prosecution witnesses have fully supported the case and their evidence has further, been supported by the positive report of Chemical Examiner besides the fact that the police officials are as good prosecution witnesses as compared to any other witnesses.
10. I have given my anxious consideration to the arguments advanced by the learned counsel for the respective parties and perused the record.
11. No doubt the police officials are as good as any other prosecution witnesses but their evidence has to be seen in the peculiar circumstances of the case. In the instant case P.W.2, Raja Muhammad Ashraf is not only party to the case itself but he is also Investigating Officer and a witness in this case inasmuch as he has admitted in his cross-examination that maternal-uncle of the appellant moved an application against him and other police officials. P.W.1 Qazi Alam, who was working with P.W.2, S.-I. Raja Muhammad Ashraf, is also police official and in the circumstances the presence of external witnesses was necessary as the requirement of law is that recovery of incriminating articles should be made in presence of two or more respectable inhabitants of the locality and the same would be defeated if the recoveries are made by the police officials themselves and none of the witnesses is associated in the process of recovery. Although, the alleged recovery has been made from a public place, no attempt was made to associate any member of the public in the recovery proceedings.
12. The recovery was made on 2-3-1999 whereas it is alleged to have been sent 17 days later on 19- 4-1999 to the Chemical Examiner together with the fact that no evidence is available on record about the safe custody of the parcel containing the recovered powder as the official with whom the parcel remained in custody and the persons who took the parcel to the Chemical Laboratory have not been examined.
' The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a 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 upshot of the above discussion is that there being no satisfactory basis for upholding the conviction and sentence of the appellant, the appeal is allowed, the conviction and sentence of the appellant is set aside, and he is acquitted of the charge. He is on bail, his bail bonds are discharged.
' Criminal Appeal No,25 of 2000 stands disposed of.