' SAGHEER AHMAD QADRI, J.---Muhammad Ashfaq son of Muhammad Iqbal, convict/appellant was tried by the learned Additional Sessions Judge, Rawalpindi in case F.I.R No.67 registered at Police Station Kotli Satian, District Rawalpindi on 20-2-2006 under section 9(b) of the Control of Narcotic Substances Act, 1997 on the report of Muhammad Afzal, S.-I. Complainant (P.W.3).
2. The F.I.R (Exh.PB/1) was recorded on the basis of complaint (Exh.PB) lodged by P.W.3 Muhammad Afzal, S.-I/complainant whereby it was mentioned that on 29-5-2006 at 6-30 p.m. He along with Iftikhar Raza C-3149, Hameed-ul-Haq C-2351, Sajid Ali C-417 and Muhammad Tauqeer, C-1628 was present at Police Post Lehtrar within the area of Barrier Forest when a Suzuki Pickup bearing Registration No.IDS-3251 came from Rawalpindi side and on its Paydan (back stair) standing a person was found who on when he was checked he disclosed his name as Muhammad Ashfaq (present appellant) from whose possession 107 grams Charas recovered which was secured vide memo Exh.PA out of which five grams Charas was separated for chemical analysis which was subsequently sent to the office of Chemical Examiner for report. On this report the instant case was registered.
3. The appellant was produced before the learned Additional Sessions Judge, Rawalpindi who charged-sheeted him on 7-5-2007 under section 9(b) of the Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial.
4. From prosecution side Zahoor Ahmed, HC-446 appeared as P.W.1 who stated that on 29-5-2006 Muhammad Afzal, S.-I. (P.W.3) handed over him two sealed parcels containing charas which he kept in Malkhana for safe custody. On 1-6-2006 he handed one sample parcel to Sajid Ali, C-417 (P.W.2) for onward transmission to the office of Chemical Examiner intact. P.W.2 Sajid Ali, C-417 and P.W.3 Muhammad Afzal, S.-I/complainant are the recovery witnesses who appeared and reiterated the stand mentioned in the F.I.R (Exh. PB/l). P . W .3 Muhammad Afzal, S . -I . Also conducted the investigation of the case. He prepared the recovery memo of charas Exh.PA; site plan Exh.PC and also recorded the statements of the P.Ws. Under section 161 Cr.P.C. The learned counsel for the State gave up Sajid Hussain and Toqueer, P.Ws., being unnecessary and after tendering in evidence the report of Chemical Examiner (Exh.PD) closed the prosecution evidence.
5. After closure of the prosecution evidence the learned trial Court examined the appellant on 25- 9-2009 under section 342 Cr.P.C. Wherein he simply denied the allegations levelled against him.
6. The learned trial Court after conclusion of trial vide judgment dated 20-10-2009 convicted the appellant under section 9(b) of the Control of Narcotic Substances Act, 1997 and sentenced to one year's R.I. With fine of Rs.20,000 and in default of payment of fine to undergo further simple imprisonment for 3-71 onths. Benefit of section 382-B Cr.P.C. Was, however, extended to the appellant.
7. Feeling aggrieved by that judgment the appellant has challenged his conviction and sentence through this criminal appeal.
8. Learned counsel for the appellant argued that the appellant is innocent and has falsely been involved in this case; that the impugned judgment passed by the learned trial Court is against law and facts of the case; that according to complaint (Exh.PB) lodged by P.W.3 Muhammad Afzal, S.- I./complainant appellant/convict was apprehended when he reached at Police Post Lehtrar, Barrier Forest at 6-30 p.m. In a Suzuki Pick-up and subsequently when he after alighting from the said vehicle was going hurriedly he was apprehended and from his possession 107 grams Charas was recovered. Learned counsel argued that there are material contradictions between the statements of P.W.2 Sajid Ali, Constable and P.W.3 Muhammad Afzal, S.-I./complainant. They contradicted with each other in respect of number of the presence of the passengers in the Suzuki Pick-up, the place from where the appellant was apprehended, its distance from the police post Lehtrar as well as details in respect of the securing of recovered substance. It was agitated that P.W.3 Muhammad Afzal, S.-I./complainant who also acted as Investigating Officer of this case did not associate any independent witness with the recovery process. Learned counsel submits" that in view of the contradictory statements of the recovery witnesses available on record the prosecution was not able to prove the charge against the appellant beyond any reasonable shadow of doubt. Prayed that while allowing this criminal appeal the appellant/convict be acquitted of the charge by setting aside the impugned judgment.
9. On the other hand learned Deputy Prosecutor-General has vehemently opposed this appeal on the grounds that the discrepancies pointed out by the learned counsel for the appellant are of minor nature which otherwise are not fatal to the prosecution version which has been proved through the statements of two recovery witnesses further corroborated by the report of the Chemical Examiner which is positive; that no defence evidence was led to falsify the prosecution story, therefore, the prosecution was able to prove the charge under section 9(b) of the Control of Narcotic Substances Act, 1997, therefore, the appellant was rightly convicted. Prayed that this appeal be dismissed.
10. We have heard the learned counsel for the parties and perused the record.
11. If the allegations levelled in the complaint (Exh.PB) on the basis of which F.I.R. (Exh.PB/1) was lodged by Muhammad Afzal, S.-I./complainant are seen it was mentioned that on 29-5-2006 at 6- 30 p.m. He along with Iftikhar Raza C-3149, Hameed-ul-Haq C-2351, Sajid Ali C-417 and Muhammad Tauqeer, C-1628 was present at Police Post Lehtrar within the area of Barrier Forest when a Suzuki Pick-up bearing Registration No.IDS-3251 came from Rawalpindi side and on its Paydan (back stair) standing a person was found who on seeing the police party started walking hurriedly and on suspicion when he was checked he disclosed his name as Muhammad Ashfaq (present appellant) from whose possession 107 grams Charas was recovered which was secured vide memo Exh.PA attested by P.W.3 Sajid Ali, Constable and Muhammad Touqeer (given up P.W.).
12. In order to prove the recovery prosecution examined only two witnesses i.e. P.W.2 Sajid Ali and P.W.3 Muhammad Afzal, S.-I./complainant who also acted as Investigating Officer of this case. If the cross-examination of P.W.2 is seen he stated:-- "In the front seat of the Suzuki Pick-up two passengers along with the driver were sitting."
' However, he was not in a position to tell how many passengers were standing on the Paydan of the vehicle. The place of occurrence is shown by this witness present about half Kilometer away from the Police Post. The colour of the charas was given by him as blackish.
13. Now if the statement of P.W.3 Muhammad Afzal, S.-I./complainant/I.O. Is seen he specifically in his cross-examination stated that - "Nakabandi in front of Police Post Lehtrar, which is 15 yards away from the Police Post".
' He further stated that- "One passenger was sitting with the driver on front seat"
' He further stated that - "Two or three persons were standing on the Paydan of the vehicle."
' He gave the colour of the charas as Medhi Colour'
14. If these contradictions are seen if P.W.2 Sajid Ali is believed then recovery took place at a distance half farlang from the police post while P.W.3 Muhammad Afzal, S.-I./complainant contradicts it as 15 yards from the said police post. Not only the colour of the charas is contradicted by these witnesses with each other but also presence of the passengers in the vehicle along with the driver as well. If the report of the Chemical Examiner (Exh.PD) is seen the colour of the recovered narcotic is given as green.
15. No doubt under section 25 of the Control of Narcotic Substances Act, 1997 application of section 103, Cr.P.C. Is excluded while conducting proceedings under this special enactment but at the same time it is imperative for the prosecution to prove the recovery process beyond any reasonable shadow of doubt. Here in this case one of the recovery witnesses P.W.2 Sajid Ali has given the place of recovery at a distance of half furlong from the police post while P.W.3 Muhammad Afzal, S.-I./ complainant gives the distance as 15 yards. Besides this the number of passengers as well as the colour of the recovery substance is also contradicted by both of these witnesses.
16. In the circumstances, when there is no method available in such like cases to discard the prosecution version when such like discrepancies material in character have been brought on record during cross-examination the only method to create dent in prosecution version by the defence, its benefit is to be extended in favour of the accused which is the basic principle of criminal jurisprudence. Resultantly, while extending benefit of doubt we allow this criminal appeal and set aside the judgment of the learned trial Court passed against the appellant. He is acquitted of the charge.
17. The appellant presently is on bail, his surety is discharged from the liability.