GULZAR AHMED, J.-By this Criminal Appeal, the appellants have challenged the judgment dated 20- 7-2009, passed by the Special Court CNS, Mirpurkhas, by which they have been convicted under section 9(c) of Control of Narcotic Substances Act, 1997 (the Act) and sentenced to suffer RA. For life imprisonment and to pay tine of Rs.50,000 each, in default whereof to suffer further S.I. Of 1 year with benefit of section 382-B, Cr.P.C.
2. Mr. Muhammad Ashraf Kazi,learned counsel for the appellants has contended that there are serious contradictions in the evidence of prosecution witnesses, which.Create serious doubt in prosecution story, regarding recovery. Of charas' from the appellant. He has contended that out of 18 packets of 1 kg each charas, said to have been recovered from the appellants, sample of 10 grams was taken only from one packet and even that packet was not identified in the evidence. He also contended that there is no clear eyidence of sending the samples to the Chemical Examiner and in any case it was sent with a delay of ten days, which has not been satisfactorily explained. He has contended that prosecution has failed to establish the case of recovery of charas against the appellants. He has further relied upon the case of GULSHAN ARA V. THE STATE-(2010 SCM R 1162).
3. Mr. Khadim Hussain, learned D.P.-G., on the other hand, has contended that there are some contradictions but they are not substantial to vitiate the proceeding and states that Chemical Examiner's report supports the prosecution case. He, however, admits that delay of tell days in sending the samples to Chemical Examiner is in violation of the rules but states that such rule is not mandatory to impose itself over the substantial law. He further contended that remaining property produced in Court was not challenged and thus the case relied upon by the appellants' counsel is of no help to him.
4. We have considered the submissions of learned counsel for the parties and have gone through the record.
5. Brief facts of the matter, as reported in the No. 23 of 2007, lodged at Police Station Phulladiyoon, Mirpurkhas on 26-5-2007 at 1720 hours by SHO Muhammad Soomar Mongriyo, are that as per directions received from DPO Mirpurkhas, he along with subordinate .Staff left for patrolling and when they reached near Melia Din Petrol Pump, received spy information that two persons boarded in blue colour car with charas are coming from Tagosar towards Garhor and on such information he along with party reached Pandhi Mor and laid Nakabandi. At 1500 hours blue colour car, came from Tagosar, was signaled to stop in which two persons were found, who disclosed their names as Safar-urRehman son of Malook and Muhammad Akram son of Fateli Khan and on checking of the vehicle ten packets of charas duly packed, below the footrest of front seat; while 8 packets below the footrest of driver seat were found, which were taken into possession and both the persons were arrested. On their physical search Rs.300 from front pocket of Safar-urRehman and four notes of Rs.50 from front pocket of Muhammad Akram were recovered. Driver Safar-ur-Rehman was enquired about the vehicle, who denied having documents of the vehicle. The car was taken into custody. On weighing charas, it was found each packet was of one kilogram total 18 Kgs, out of which ten grams was sealed in bundle 'A' for chemical analysis, while remaining charas was sealed in parcel in cloth bag. The driver Safar-ur-Rehman disclosed that his brother Ghulam Muhammad alias Gullu does the business of charas and he purchases the same from Abdul Rahim Rajar.
Mashirnama of arrest and recovery was prepared on the spot and signatures of ASI Abdul Rahim and HC Amanullah were obtained. The accused with recovered charas and car were brought to Police Station and F.I.R. Was lodged.
6. After usual investigation, the matter was sent up for trial where charge of recovery of charas punishable under section 9(c) of the Act was framed against the appellants who pleaded not guilty and claimed trial.
7. From the prosecution side ASI Abdul Rahim, SHO Muhammad Soomar and SIP Badal Khan were produced as witnesses. They were cross-examined by defence counsel. On closing the side of prosecution, statement under section 342, Cr.P.C, of both the appellants were recorded.
8. Appellant Muhammad Akram examined himself on oath and lie also produced defence witnesses namely Muhammad . Jumman, Muhammad Hassan, Muhammad Bux, Qaim, Abdul Jabbar and Ghos Bux. Appellant Muhammad Akram and his witnesses were cross-examined by the State counsel. On hearing the Advocates of the parties, the impugned judgment was passed by the learned trial Court.
9. P.W. Abdul Rahim has given the facts regarding leaving of Police Station, receiving of the spy information at Mehar Din Petrol Pump regarding two person in the blue colour car coming from Tagosar and going towards Ghirhore Sharif, whereupon Nakabandi was made at Pandi Mor at 1500 hours and the blue colour car was stopped in which, there were two persons. On checking of the vehicle, 8 packets of charas were recovered from the Paidan of the driver seat while 10 packets were recovered from Paidan of the front passenger seat. Safar-ur-Rehman was the driver and the other was Muhammad Akram. Recovered charas was weighed which was 18 Kg each packet of 1 Kg. 10 grams charas was taken separately and sealed and remaining charas was also sealed separately in cloth bag. PC Amanullah prepared Mashirnama of arrest and recovery and this P.W.
And Amanullah acted as mashirs. The Mashirnama was produced as Exh.5/A. The property of 18 packets of charas was produced in court, the car was produced in burnt condition. The accused persons present in Court were identified by the witness. In cross-examination, this witness stated that informer was on the motorcycle and that Safar-ur-Rehman disclosed that he is the owner of Mazda Car No.A-0981. He also stated that packets of charas were lying in green colour plastic bag and that complainant SIP Muhammad Soomar took 10 grams of specimen from one slab of contraband charas. The bulk and specimen were sealed separately in two parcels in cloth bags. He admitted that charas shown to him in Court are 15 packets of green colour, three slabs in white colour plastic bag and two half slabs in white colour polythene bag. He further stated that Exh.51A and F.I.R. Are in the handwriting of LHC Amanullah, the member of raiding party.
10. P.W. Muhammad Soomar also gave similar story like that of P.W. Abdul Rahim regarding recovery. As regards memo. Of arrest and recovery, this witness stated that he prepared such memo. In the presence of mashirs ASI Abdul Rahim and LPC Amanullah which is Exh.5/A. He also stated that he took ten grams only from one packet and admitted that five packets present in Court were wrapped in white colour plastic panni. He stated that the word AUSLESE is not mentioned on the five packets of charas but voluntarily stated that this word is mentioned. On remaining packets of charas. In cross- examination this witness stated that he received the information through telephone. He has further stated in his cross-examination that memo. Of arrest and recovery was written by PC Muhammad Soomar under his dictation. FI.R. Was also written by PC Muhammad Soomar under his dictation and that the writing of the F.I.R. As well as of the memo. Of arrest and recovery is same. He denied the suggestion that memo. Was written by WPC at Police Station.
11. P.W. Badal Khan has conducted investigation and recorded statement of witnesses. He has stated that he had sent the samples to Chemical Examiner, whose report was produced by him as Exh.8/A. In cross-examination he has stated that writing on the F.I.R. And Mashirnama is same then voluntarily stated that the writing on the F.I.R. Is different from memo. Of recovery. And arrest and denied the suggestion that writing over the F.I.R. And memo. Of arrest and recovery is same. He stated that it is a fact that sample was taken from one Patti of charas and stated that SHO himself sent the sample to Chemical Examiner. He further stated that the F.I.R. Was written by WHC under his dictation.
12. The perusal of the evidence apparently does reflect that there are serious contradictions on the material aspect of the matter in the prosecution evidence. P.W. ASI Abdul Rahim and P.W. SHO Muhammad Soomar were members of the patrolling party and it is stated by both the witnesses that the spy gave information at Mehar Din Petrol Pump regarding two persons in blue colour car coming from Tagosar and going towards Ghirhore Sharif. In cross-examination P.W. Abdul Rahim has stated that the informer was on motorcycle while P.W. Muhammad Soomar in his cross- examination has stated that information was received by him on telephone. P.W. Abdul Rahim in his evidence has stated that Mashirnama of arrest and recovery was prepared by PC Amanullah while. P.W. Muhammad Soomar in his cross-examination has stated that the memo. Of arrest and recovery was written by PC Muhammad Soomar under his dictation. P.W. Abdul Rahim in his cross- examination has also Stated that F.I.R. Is in the handwriting of LHC Amanullah, the member of raiding party while P.W. Muhammad Soomar has stated that F.I.R. Was written by PC Muhammad Soomar under his dictation and that the Writing on the F.I.R. As well as on memo. Of arrest and recovery is the same. P.W. Badal Khan in.His cross-examination initially stated that writing on the F.I.R. And Mashirnama is same but contradicted himself by voluntarily stating that writing on the F-.I.R. Is diffetent from the' memo. Of recovery and arrest and denied the suggestion that writing on F.I.R. And memo. Of recovery and arrest is same. He further stated that F.I.R. Was written by WHC under his dictation.
13. The prosecution witnesses are not in unanimity regarding these two crucial documents by which the appellants ate meant to be connected with the crime of recovery of charas from them and such aspect of the matter is not that of,small or trivial inconsistency rather throws the case of prosecution open to doubt regarding veracity of these documents as to where and by whom they were prepared.
14. P W. Badal Khan in his examination-in-chief has stated that he had sent the sample to the Chemical Examiner and produced the report as Exh.8/A. In cross-examination he contradicted this statement of his by saying that the SHO himself sent the sample to the Chemical Examiner. The SHO has said nothing about sending of the sample to Chemical Examiner. Thus the evidence as to who sent the sample to Chemical Examiner is either not there or there is serious contradiction on this aspect of the matter which makes the report of Chemical Examiner not reliable.
15. P.W. Abdul Rahim in his cross-examination has stated that the packets' of Contraband charas were lying in green colour plastic bag and conceded the, suggestion that the case property viz. Contraband charas shown to him in Court are 15 packets of green colour, 3 slabs in white colour plastic bag and 2 half slabs in white colour polythene bag. P.W. Muhammad Soomar in cross- examination admitted that word `AUSLESE' does not appear on 5 'packets of charas produced in Court which were wrapped in white colour plastic panni but stated that such Word is mentioned on remaining packets of charas. He also admitted in his cross-examination that packet of charas, from which 10 grams is stated to have been separated for chemical examination present in Court, was not sealed. He stated in his cross-examination that charas present in Court is not wrapped in green colour paper but stated that green colour paper was destroyed at the time of recovery. In the memo of recovery.
Exh.5/A, the, recovered contrabandis described as follows:-- "18 Packets of Charas 'packed in dark green coloured plastic upon which, "AUSLESE' is written in English, total weight 18 Kilograms, out of which, 10 grams was sealed up in bundle 'A' for chemical analysis while remaining (Charas) was sealed up in cloth bag."
16. The above evidence amply shows that charas, which is said to have been recovered from the appellants, was wrapped in green colour plastic bag containing the word `AUSLESE' but the whole of these 18 packets covered in green colour plastic bag with word `AUSLESE' were-not produced in Court rathe. 5 packets were produced which were wrapped in white colour plastic bag and without the word `AUSLESE'. There is no explanation as to why the whole of 18 packets of recovered D charas in green colour bag with word `AUSLESE' were not produced and as to how the 5 packets in white colour plastic bag without the word `AUSLESE' curie to be introduced in the evidence. The prosecution story of recovery of 18 packets of charas in green colour plastic bag with word `AUSLESE' is, therefore, not supported by the evidence produced in Court.
17. Yet again the packet of charas from which sample is stated to have been taken was produced in Court in unsealed condition and thus its E tampering could not be ruled out.
18. The concept of benefit of doubt is deeply rooted in the judicial system of the country for giving benefit of doubt. It is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter fright. Reference in this F respect is made to the case of TARIQ PERVEZ V. THE STATE (1995 SCM R 1345). There are not one but many circumstances in the present case, which creates doubt about prosecution story; more so, when on material aspect of the matter the prosecution witnesses are not consistent rather contradictory. Such contradiction in the prosecution evidence does not justify the conviction' and sentence of the appellants for the safe administration of criminal justice.
19. We, therefore, allow this appeal, set aside the impugned judgment and acquit the appellants from charge and direct that they be released immediately if not required in any other case.