' MUHAMMAD FARRUKH MAHMUD, J.---Sarfraz alias Farzo son of Elahi Bakhsh was sent up to face trial in case F.I.R. No. 199, registered at Police Station, Saddar Ahmadpur East, on 27-8-2003, for offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter to be referred as C.N.S.A.).
2. Vide judgment dated 26-6-2004, Mehr Ahmad Nawaz, Additional Sessions Judge, Ahmadpur East, convicted the accused for offence under section 9(c) C.N.S.A. And sentenced him to three years R.I. Fine of Rs.50,000 was also imposed upon the convict, in default of payment whereof the convict was to suffer further S.I. For one month. Benefit of section 382-B, Cr.P.C. Was given to the convict/ appellant.
3. Feeling aggrieved, through this appeal, Sarfraz has challenged his conviction and sentence.
4. On 27-8-2003 at about 9-40 a.m. Abid Akhtar, Inspector/S.H.O., Police Station, Ahmadpur East (P.W.4) along with other police officials was present at Riaz Hotel situated within the vicinity of Mouza Gullan Lar. He received information that Sarfraz, appellant used to deal narcotics and had gone on Motorcycle to Ahmadpur East, in order to purchase Charas and Opium. After receipt of information the complainant posted a picket party near Basti Arian, Mouza Imamo Arian. While Sarfraz, appellant was coming on Motorcycle from KLP Road, he was stopped and searched. During search 200 grams of Opium was recovered from the right side's pocket of the Shirt worn by the appellant, while one packet containing 1 Kg. 300 grams of Charas was recovered from the fold of his trousers. The recovered Opium P.1 and the packet of Charas P.2 were secured through Memo.
Exh.P.A. Drafted by S.H.O./P.W.4 and attested by Muhammad Rafiq, Constable/P.W.1 and Muhammad Hanif, A.S.-I. (not produced) . 10 grams of Opium and 100 grams of Charas were separated and secured into two sealed parcels for the purposes of chemical examination. After recovery, Abid Akhtar, S.H.O., drafted complaint Exh.P.C. And on the basis of Exh.P.C. Formal F.I.R. Sr.
No.199 Exh.P.C./1 was registered at Police Station, Saddar Ahmadpur East, at about 10-15 a.m.
5. One CD-70 Motorcycle, which was not registered and was being driven by the appellant was also taken into possession vide memo. Exh.P.B. Attested by the witnesses mentioned above.
6. After completion of investigation, the appellant was sent up to face trial and the charge was framed against him. As the appellant denied the charge and claimed to be tried, the trial commenced.
7. During trial, the prosecution produced four witnesses in support of its case. Muhammad Rafiq, Constable/P.W.1 and Abid Akhtar, Inspector/S.H.O./P.W.4 furnished the ocular account. They also stated about the recoveries. P.W.4 further stated about the drafting of complaint and investigation of the case. Jam Muhammad, S.-I./P.W.2 stated about the registration of formal F.I.R. Sajjad Ahmad, HeadConstable/P.W.3 stated that on 16-9-2003 he was posted at Police Station, Saddar Ahmadpur East and took charge of two parcels, which he handedover to Muhammad Rafiq, Constable, for onward transmission to the Office of the Chemical Examiner. After placing on record, the reports of the Chemical Examiner Exh.P.E. And Exh. P.F. The prosecution closed its case.
8. Statement of the appellant was recorded under section 342, Cr.P.C. Wherein he stated that he was innocent and was involved in a false case at the instance of Lumbardar; and that the P. Ws.
Who were all police officials had deposed against him in order to please Lumbardar. Neither the appellant appeared as a witness in his defence under section 340(2), Cr.P.C. Nor he produced any defence witness during trial.
9. We have heard the learned counsel for the appellant as well as the learned counsel appearing on behalf of the State and have scanned the entire record of the case. The crux of the arguments of the learned counsel for the appellant is that the prosecution has failed to prove its case against the appellant beyond doubt, while the learned counsel appearing on behalf of the State has supported the judgment passed by teamed trial Court mainly on the ground that the witnesses had no previous enmity with the appellant.
10. The most important document in a criminal case is "F.I.R., complaint based F.I.R. And the complaint". The instant case was registered on the basis of complaint Exh.P.C. Drafted by P.W.4.
Perusal of the same manifestly reveals that the time was added subsequently as the shade of the ink and the handwriting regarding the time are different from the shade of the ink and handwriting of the complainant. The time mentioned in the complaint Exh.P.C. Is 9-40 a.m. The complaint also contains the note that the F.I.R. Was registered on 10-15 a.m. On the same date at the police station, which was .At a distance of 20 Kms. As against that, Muhammad Rafiq, Constable/P.W.1 stated that the police party received information at 7-30 a.m. And they proceeded from the police station at 6-30 p.m. We have also checked the record prepared in Urdu. It is in accordance with the record prepared in English. This statement knocks out the story of the prosecution that the occurrence had taken place at 9-40 a.m. In cross-examination P.W.4 stated that he handedover the case property to Sajjad Ahmad, Moharar/P.W.3, who received the parcels. On the contrary Sajjad Ahmad, P.W.3 stated before the learned trial Court that he took charge of two parcels on 16-9-2003 and handedover the same to Muhammad Rafiq, Constable/P.W. I on 4-10-2003. Not only that two statements contradict each other but it is also noteworthy that in fact four parcels were prepared and the Motorcycle of the appellant was also taken into possession. There is no explanation on record of the case as to why the parcels were kept at the Police Station till 4-10-2003 and were not sent for chemical examination earlier. Such a long delay in sending the parcels to the office of the Chemical Examiner by itself casts doubt on the prosecution case. Muhammad Rafiq, Constable/P.W.1 did not state before the learned trial Court that the parcels were given to him and he deposited the same with the Office of the Chemical Examiner. not required in any other case.
The question of ownership and Superdari of Motorcycle would be determined by the Area Magistrate.
11. The net result is that there is nothing on record to show as to who took the parcels to the Office of Chemical Examiner and this important link of evidence is missing. Similarly the record is silent as to what happened with the Motorcycle, which was taken into possession as case property. We feel sorry to notice that the learned trial Court failed to take any notice of this important fact. The learned trial Court though in Question No.2 (in statement recorded under section 342, Cr.P.C.) mentioned that the Motorcycle was recovered from the possession of the appellant yet it did not put any question as to the ownership of the Motorcycle. The Apex Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 Narcotic Case) held as followed:-- "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."
12. In the above noted circumstances, we are of the opinion that the instant case is swollen with doubts. Thus, we allow this appeal, set aside the impugned judgment and acquit the appellant of the charge. He would be released from Jail forthwith, if