' QAISER RASHID KHAN, J.---Through the instant appeal, Shah Jehan appellant has called in question the judgment dated 20-9-2011 passed by the learned, Additional Sessions Judge-III, D.I.Khan, whereby he was convicted under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to five months' R.I. With a fine of Rs,5,000 or in default, to suffer two months' S.I.
2. As per F.I.R., Muhammad Nawaz, S.H.O. Police Station Cantt. D.I.Khan at 1-30 hours on 31-3-2011 received spy information that the appellant, who is a known drug peddler, is selling charas near Eidgah. The police went to the said place and found the appellant who tried to make good his escape but was overpowered and charras weighing 440 grams was recovered from the side pocket of his shirt and accordingly an F.I.R. Was registered against him.
3. After investigation in the case, complete challan against the appellant was submitted in the Court of Session which was entrusted to the learned Additional Sessions Judge-III, D.I. Khan for trial.
After complying with the mandatory requirement under section 265-C, Cr.P.C, the appellant was formally charge-sheeted which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced five witnesses and abandoned the rest.
Amjad Hussain, A.S.-I. Was examined as P.W.1. Who deposed that in his presence, Rustam Khan I.O.
Took into possession 440 grams of charras wrapped in plastic envelope recovered from the side pocket of the shirt of the appellant which was produced by Muhammad Nawaz, S.H.O., out of which, five grams were separated and sealed in Parcel-I while the remaining 435 grams along with envelope were sealed in Parcel-2. Muhammad Nawaz, S.H.O. Was examined as P.W.2 who deposed that on spy information, he went to the spot and arrested the appellant from whose personal search, 440 grams charras was recovered. He prepared recovery memo. Exh.P.W.2/1 scribed the murasila Exh.PB on the spot and sent the same to the Police Station for registration of case and on arrival of the I.O. He handed over the case file to him for investigation who, after its completion, submitted complete challan against the appellant on 1-4-2011. Similarly, Sanaullah, Constable was examined as P.W.3 who claimed to be the marginal witness of recovery memo. P.W.2/1. Rustam Khan S.I./I.O. Appeared as P.W.4 who conducted the investigation of the case, prepared the site plan Exh.P.W.4/1 and recorded the statements of the. P. Ws. Under section 161, Cr.P.C. And after the completion of investigation, he handed over the case file to the S.H.O. For submission of complete challan Ehsanullah, Additional Moharrir Police Station, Yarik, D.I.Khan appeared as P.W.5 and deposed that on receipt of murasila sent by the S.H.O. Through Constable Athar Ali, he incorporated the contents of the same into F.I.R.
5. After closure of the prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C. Who neither expressed his wish to be examined on oath under section 340(2), Cr.P.C. Nor to produce any defence. After listening to the arguments of parties, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence, the appeal.
6. Arguments heard and case file perused.
7. The learned counsel for the appellant argued that Article 3 of Prohibition (Enforcement of Hadd)
Order, 1979 is not attracted in the case in hand as the appellant was neither engaged in the import, export, transportation, manufacturing processing or for that matter the sale of the alleged charras for which sale, the appellant has been charged and convicted.
8. The word 'sale' is not to be taken in its ordinary dictionary meaning or as is being used in the common parlance but carries with it its meaningful legal connotation as held by the honourable Federal Shariat Court in 1996 PCr.LJ 1787 (b):-- "Article 3(c)---Charge of selling intoxicant---Proof---Prosecution for the purpose of proving the charge of selling intoxicant is bound to produce the purchaser, the currency used for the purchase and the purchased intoxicants and if any of the three factors is missing then sale would not be proved."
' Such being the case, I am afraid, Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 is not attracted in the present case. Moreover, the statements of the P.Ws. Have also been found to be inconsistent, contradictory inter se and incoherent.
9. It was the bounden duty of the prosecution to have exhibited the F.S.L report pertaining to the recovery of the alleged charras so as to confront the appellant with the same and to have provided him with an opportunity to subject it to cross-examination but for reasons best known to the prosecution, the same was never exhibited and for that matter, was not even available at the time of recording of the statement by P .W .2 Muhammad Nawaz S.H.O., Police Station Cantt.
D.I.Khan on 12-7-2011 who in a frank and candid manner admitted that:-- "It is correct that at present there is no FSL report available on the judicial file. However, I have sent the sample for the chemical analysis vide my application dated 31-3-2011."
' Thus, in a situation, where the F.S.L report was neither exhibited nor any question put to the appellant regarding the same in his statement under section 342, Cr.P.C, the case of the prosecution shrouded in mysteries and doubts and the beneficiary can be none other but the appellant. Such recovery cannot be used against the appellant for holding him guilty of the offence. Reliance placed on 2010 SCM R 1009, head notes "d" and "e".
10. The appellant cannot be thus saddled with any liability for the possession of the alleged recovered charras as long as he is not afforded with a reasonable opportunity to offer some defence to the same and where the proof in the shape of F.S.L report is missing. As such, merely inserting the F.S.L report in a surreptitious manner in the case file. Would be of no consequence as far as the prosecution case is concerned and the same is not worth the paper it is written on. The trial Court should not have lost sight of the fact that the accused is the favourite child of law and the benefit of even an iota of doubt, if found in the prosecution case, should for all purposes be extended to the accused. It appears that the learned trial Judge while recording the impugned conviction was swa yed more by the F.I.Rs, earlier registered against the appellant in which no conviction has been recorded. Needless to mention that every case is to be decided on A its own merits.
11. For what has been discussed above, I am of the view that the learned trial Court has erred while convicting the appellant. Resultantly, the appeal is accepted, the impugned judgment of conviction and sentence dated 20-9-2011 is set aside and the appellant is acquitted of the charges levelled against him. He is on bail and is discharged from the liability under the bail bond.