' AHMED ALI M. SHEIKH, J.---This judgment will govern Criminal Appeal No. D-26 of 2010, preferred against the judgment dated 10-2-2010, passed by learned Special Judge for C.N.S., Khairpur in Special case No.7 of 2006, whereby appellant was convicted for offence under section 9(c) of C.N.S. Act, 1997 and 'sentenced to suffer R.I. For six years and fine of Rs.20,000 and in case of default, to suffer further S.I. For four months. However, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. From the pleadings, it appears that on 9th April, 2006 at about 1609 hours, SIP Yateem Ali Kalhoro lodged F.I.R. On behalf of the State at Police. Station, Mirwah, stating therein that on the same day while he was on patrolling duty along with his subordinate staff, apprehended the appellant from link road leading from Thari Mirwah towards Pir Wasan in a suspicious condition and from his possession, secured 1200 grams of charas, out of which 50 grams were separated for chemical examination while rest of the quantity was sealed separately. Such Mashirnama was prepared in presence of A.S.-I. Ghulam Sarwar and HC-Ghulam Shabir Bhambhro.
3: Formal charge was framed against the appellant, to which he pleaded not guilty and claimed for trial. To substantiate its case, prosecution examined P. Ws. A.S.-I. Ghulam Sarwar and SIP Yateem Ali. In his statement recorded under section 342, Cr.P.C, appellant professed his innocence.
However, neither he examined himself on oath nor led any evidence in,his defence.
4. After hearing the learned counsel for the parties, appellant was convicted and sentenced, as above.
5. Learned counsel for the appellant contended that the appellant is innocent and has nothing to do with the alleged contraband material. Per learned counsel, neither appellant was arrested from the place of occurrence nor any contraband item was recovered from his possession, in fact, alleged recovery of charas has been, foisted upon him by the police just to show their so-called efficiency before their high-ups. He further contended that the prosecution case is full of contradictions and improbabilities as there are glaring contradictions between the statements of two prosecution witnesses. Besides above, sample was sent to the Chemical Examiner after 5 months and 10 days, hence no sanctity can be attached to the Chemical Examiner's report.
6. On the other hand, learned D. P. G. For the State defended the impugned judgment and submitted that the prosecution has proved its case against the appellant beyond any shadow of doubt, therefore, impugned judgment warrants no interference.
7. We have heard learned counsel for the parties and perused the material available on record.
Upon a perusal of deposition of P.W.1 A.S.-I. Ghulam Sarwar, who is Mashir of arrest and recovery, it appears that he deposed that on 9-4-2006, he along with SIP Yateem Ali and other staff apprehended appellant from a link road leading from Thari Mirwah to Pir Wasan and from the fold of his Shalwar, SIP secured two pieces of charas (1200 grams), out of same 50 grams were separated for chemical examination while remaining quantity was sealed separately. S.H.O.
Prepared, memo of arrest and recovery in his presence. In his cross-examination while replying to a suggestion, he stated that samples were taken from each piece. In a reply to another suggestion, he stated as under:-- "It is correct to suggest that property present in the court consists of three pieces of charas".
' In his cross-examination, he further stated that F.I.R. Was recorded by S.H.O. In his own handwriting.
8. P.W.2 SIP Yateem Ali, who acted in dual capacity i.e. Complainant and Investigating Officer, in his deposition, reiterated the same facts, as given in the F.I.R. (It is pertinent to mention here that during trial when deposition of P.W.2 SIP Yateem Ali was recorded, two pieces of charas were produced in Court as case property). While replying to a suggestion, SIP Yateem Ali stated as under:-- "The F.I.R. Was scribed by WHC. 161 Cr.P.C. Statements of the P.Ws. Were recorded by WHC on my directions, and narration of the facts by the P.Ws.".
9. In response to another suggestion, he admitted that as per Chemical Examiner's report, 10 grams material was consumed in analysis and remaining material returned in sealed packet. He also admitted that the said material is not available in the court nor produced by him.
10. From the scanning of evidence, it appears that there is inconsistency between the depositions of both prosecution witnesses with regard to number of pieces of charas as well as in respect of scriber of F.I.R. P.W.1 A.S.-I. Ghulam Sarwar stated that F.I.R. Was written by S.H.O. In his own handwriting, whereas P.W.2 SIP Yateem Ali deposed that F.I.R. Was written by WHC as well as 161, Cr.P.C. Statements of P.Ws. Were recorded by WHC, on his directions. Besides above, at the time of recording evidence of P.W.1 A.S.-I. Ghulam Sarwar, three pieces of charas were produced in Court, while at the time of recording evidence of P.W.2 SIP Yateem Ali, two pieces of charas were produced and it is admitted by complainant/L0 that the property which was sent back by Chemical Examiner, was not produced by him in Court. Even in the given circumstances, Chemical Examiner's report is not helpful to the prosecution case as it emerged out from the evidence that the sealed sample was delivered at the office of Chemical Examiner on 19-9-2006, whereas recovery was effected on 9-4-2006 and from the pleadings or evidence, it is not known as to how this property was treated during this period of 5 months and 10 days. The conduct and the manner in which sample of property was sent to Chemical Examiner and produced in Court also create doubt about the prosecution version with regard to recovery of charas as well as number of pieces of charas. It is repeatedly held by our superior Courts that for extending benefit of doubt, it is not necessary that there should be many circumstances creating doubt but if a single circumstance creates reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit not as a matter of grace and concession but as a matter of right. Reference can be made to the cases of Shahid Abbass v. Shahbaz and others (2009 SCM R 237) and Tarique Parvez v. The State (1995 SCM R 1345); 11: The upshot of the above discussion is that the prosecution could not prove its case against the appellant beyond shadow of doubt. Therefore, by short order dated 27-9-2012 while setting aside the impugned judgment dated 10-2-2010 passed by the trial Court, this appeal was allowed and the appellant was acquitted of the charge. These are the reasons in support of our short order.