' KHADIM HUSSAIN M. SHAIKH, J.---Briefly stated facts of the case are that on 11-6-2000 at 11-45 a.m.
S-I.P. Malak Sher Ali Khan along with his subordinate staff P.C. Rasool Bux, H.C. Zahoor Ahmed and P.C. Ghulam Ghous left Police Station Hali Road Hyderabad under Roznamcha Entry No.11 in a Government mobile for patrolling purpose and while patrolling when they reached at Ghousia Chowk, American Quarters, Hyderabad, they received spy information that one person is selling Charas behind Bilal Masjid near Main Gate of Railway Workshop. On receiving such spy information, S.I.P. Malak Sher Ali Khan accompanying his aforesaid subordinate staff reached at the pointed place where they found one person, who seeing the police party tried to run away towards the street, but he was apprehended at 1-30 p.m. And on enquiry he disclosed his name as Umer Rehman son of Momin Khan by caste Doulat Khan-Khel Pathan. On the personal search of apprehended person in presence of Mashirs P.C. Rasool Bux and H.C. Zahoor Ahmed, the police party secured a white colour plastic shopper containing 4" pieces of Charas from the right side pocket of his shalwar (trouser) and cash of Rs.45, from front pocket of his shirt. The recovered Charas was weighed on the spot and its weight was 200 grams, which was sealed on the spot for Chemcial analysis. The S.I.P. Malak Sher Ali Khan prepared joint Mashirnama of arrest and recovery, which was signed by the above Mashirs P.C. Rasool Bux and H.C. Zahoor Ahmed. It is stated that due to heat no private person was found available at the place of recovery. The police party then brought the accused and recovered property at Police Station Hali Road, Hyderabad where S.I.P.
Malak Sher Ali Khan has lodged F:I.R No.03/2000 for the offence punishable under section 9(b)
Control of Narcotic Substances Act 1997. After usual investigation the accused was sent up to face his trial before the Court of Special Judge, Control of Narcotic Substances, Hyderabad.
2. On 6-2-2001, the charge was framed as Exh.3 and plea of the accused was recorded as Exh. 4, to which, the accused pleaded not guilty and claimed to be tried.
3. In order to prove the case, the prosecution has examined the complainant Malak Sher Ali Khan P.
W .1.3s Exh.7 on 29-4-2003. He produced Mashirnama of arrest and recovery as Exh. 7/A, F.I.R No,03/2000 as Exh.7/B and Chemical Laboratory Report as Exh.7/C. The prosecution has also examined P.C. Rasool Bux, who acted as Mashir, as P.W.2 Exh.8 on 27-5-2003. Then the prosecution closed its side vide statement dated 27-5-2003 as Exh.9. Both the P.Ws, who were not subjected to the cross-examination by the accused, were examined in absence of advocate for the accused.
The statement under section 342, Cr.P.C. Of the accused was recorded on 12-7-2003 as Exh.10, wherein he denied the claims of the prosecution and he pleaded his innocence and prayed for justice.
4. The learned trial Court by impugned judgment dated 12-8-2003, convicted the appellant for the offence punishable under section 9(b) .Of C.N.S. Act 1997 and sentenced him to suffer R.I. For three years and to pay fine of Rs,10,000 and in case of default to suffer R.I. For 6 months more. He, however, was given benefit of section 382-B, Cr.P.C.
5. The appellant being aggrieved by the said judgment dated 12-8-2003, filed the instant jail appeal through Superintendent Central Prison, Hyderabad.
6. The appellant, who is alleged to have served out his sentence, having benefit of section 382-B, Cr.P.C. And also remaining on parole, is present in person and urges the fate of this appeal on merits.
7. We have heard the appellant in person and Mr. Allah Bachayo Soomro, Additional Advocate- General Sindh for the State, on 12-3-2009. Mr. Allah Bachayo Soomro learned Additional Advocate- General Sindh at the very out set did not support the impugned judgment dated 12-8-2003 of the learned trial Court. However the judgment was reserved.
8. On careful examination of the evidence and judgment dated 12-8-2003 of the trial Court it may be observed that the learned trial Court was influenced by the fact that no cross-examination was offered by the accused and thereby the testimony of the P.Ws. Complainant S.I.P. Malak Sher Ali Khan and P.C. Rasool Bux had gone unchallenged. The learned trial Court lost sight of the fact that both the P.Ws., who are police officials, were not examined on one and the same date, but they were examined on different dates and that both the P. Ws. Were examined in absence of the Advocate for the accused, who was thus unrepresented at the time of recording of evidence of both the P.Ws. In such a state the learned trial Court was obliged to take into consideration the entire material placed before it in arriving at the conclusion whether a fact was proved or not because the proof of a fact depends upon the probability of its having existed, and not upon the accuracy of the statement in view of the dictum laid down by the Honourable Apex Court in the case of Syed Mehmood Alam Shah v. The State (PLD 1987 SC 250).
9. The copy of alleged Roznamcha Entry No.11, which would establish that the complainant party was actually on patrolling on that date during day time, has not been produced in evidence.
Moreover not a single person has been cited as witness or Mashir despite the fact that while on patrolling when the police party reached at Ghousia Chowk, Hyderabad City, they had received spy information about selling of Charas by the appellant behind Bilal Masjid near Main Gate of Railway workshop, Hyderabad City. The explanation of the prosecution that due to heat no private person was available at the place of recovery, is apparently a lame excuse, which does not appeal to a prudent mind for the reasons that the place of recovery is in heart of Hyderabad City and the alleged recovery was made at 1-30 p.m, which is peak hour of the business and it is beyond imagination that no private person was available at the alleged place of recovery at that time.
10. It is case of the prosecution that the alleged recovery was made from the personal search of the accused on 11-6-2000 at 1-30 p.m. And that the contraband Charas was received in Chemical Laboratory on 19-6-2000 i.e. After 8 days of its recovery and report was prepared on 31-7-2000 i.e. After one month and 20 days, as is evident from the Report of Chemical Examiner produced as Exh.7/C and there is no explanation offered by the prosecution for such considerable delay in sending the contraband Charas to the Chemical Laboratory. Such a delay was opposed to law i.e. The Control of Narcotic Substances (Government Analysts) Rules, 2001. The said rules have been issued in the form of S.R.O. 810(I) 2001. The relevant rules reads as under:- "4. Dispatch of sample for test or analysis---(1) Reasonable quantity of samples from the narcotic drugs, psychotropic substances or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer in charge of nearest Federal Narcotic Testing Laboratory, depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose.
(2) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure. The envelope should be sealed and marked "Secret Drug Sample Test Memorandum".
11. According to above rule the contraband material may be sent to the laboratory as early as possible but not later than 72 hours of seizure thereof. It is also not proved that during the aforesaid period of 8 days alleged contraband Charas remained in safe custody. Per prosecution the weight of the recovered Charas was 200 grams and whereas the Report of Chemical Examiner Exh.7/C reflects that the contraband Charas was weighing 218 grams with wrappers and its net weight was 212 grams.
12. It needs no reiteration that it is the duty of prosecution to prove its case beyond any reasonable doubt and it is well settled law that if any doubt arises in the prosecution case the benefit of that doubt is to be given to the accused not as matter of grace, but as a matter of right, in view of the dictum laid down by the Honourable Apex Court in the case of Tariq Parveez v. The State (1995 SCM R 1345).
13. In view of what is discussed above, we are of the opinion that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt and it is therefore that Mr. Allah Bachayo Soomro, learned Additional Advocate-General Sindh does not support the impugned judgment dated 12-8-2003. We by extending benefit of doubt to the appellant acquit him of the charge and set aside the impugned judgment dated 12-8-2003. Resultantly, the instant jail appeal is allowed.