' MEHMOOD. MAQBOOL BAJWA, J.---After conclusion of trial in case F.I.R. No. 380 of 2003 registered under section 9(i) of The Control of Narcotic Substances Act, 1997 (Act XXV of 1997) at Police Station Alipur Chatha Tehsil Wazirabad, District Gujranwala, the learned trial Court while recording conviction against the appellant, through judgment dated 24-4-2007 awarded him sentence with Rigorous imprisonment of 14 years and fine to the tune of Rs. Two lac and in case of default of payment of fine to further undergo six months' S.I. With extension of benefit under section 382-B of The Code of Criminal Procedure, 1898.
2. Precisely allegation contained in the Report under section 154 of The Code of Criminal Procedure, 1898 (Exh.PC/1) recorded on the strength of complaint (Exh.PC) of Safdar Hussain, S.-I. (P.W.6) is that on 17-12-2003 he along with police official eleven in number (specifically named) was present at Madina Chowk, Alipur Chatha, when after receipt of spy information' that the appellant having contraband material is coming on bicycle from Rasool Nagar Road, police party on officials vehicle started going to Rasool Nagar Road. Near Octroi Post Rasool Nagar, the appellant was seen coming on bicycle who after seeing police contingent, while leaving the bicycle managed to escape. There was a bucket lying upon bicycle and on search, charas weighing at 10 kilogram was recovered. Out of bulk, 10 gram was separated after amalgamation of whole contraband material. The sample parcel and parcel containing remaining charas (P.1) string (P.2) bucket (P.3) and bicycle (P.4) were taken into custody vide memo (Exh.PD) attested by Javed Iqbal constable (P.W.5) and Sikandar Hayat A.S.-I. (not produced).
' Safdar Hussain S.-I. (P.W.6) drafted complaint (Exh.PC) and sent the same to the police station for registration of case, upon the strength of which Ashiq Ali A.S.-I. (P.W.4) recorded formal F.I.R.
(Exh.PC/1).
3. Safdar Hussain S.-I. (P.W.6) after spot inspection prepared rough site plan (Exh.PE), recorded statements of witnesses under section 161 of The Code of Criminal Procedure, 1898. After observing codal and legal formalities, Report under section 173 of The< Code of Criminal Procedure, 1898 was submitted in the Court and appellant being an accused when formally charged, pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case, produced Muhammad Ashraf S.-I. (P.W.1), Muhammad Ramzan, HC (P.W.2), Muhammad Ashiq constable (P.W.3), Ashiq Ali A.S.-I. (P.W.4), Javed Iqbal constable, recovery witness (P.W.5), Safdar Hussain S.-I. (complainant as well as I.O. (P.W.6) and Sikandar Hayat S.-I. (P.W.7). After submitting. Report of Chemical Examiner (Exh.PF), evidence of prosecution was closed.
' The appellant in his statement recorded under section 412 of The Code of Criminal Procedure, 1898 denied the whole incriminating material put to him. Pleading his innocence and falsity of allegations, it was maintained by the appellant that police has involved him just to show its efficiency. After conclusion of trial, learned trial Court through judgment dated 24-4-2007 recorded conviction awarding him punishment with 14 years' R.I.
5. Heard adversaries and perused the record.
' The learned counsel for the appellant while making reference to the evidence of Javed Iqbal constable, a recovery witness (P.W.5) and Safdar Hussain S.-I., complainant (P.W.6) maintained that evidence of both the witnesses does not inspire confidence having material contradictions casting serious doubt about veracity of prosecution version and as such the appellant is entitled to get the judgment of acquittal in his favour. Submitted that story of the prosecution regarding escape of appellant from the spot in the presence of police officials eleven in number does not appeal to the reason, sufficient to suggest that story was coined at the instance of complainant Safdar Hussain S.-I. Making reference to status of Safdar Hussain S.-I. (P.W.6) it was contended that the said police officer is not only complainant but also Investigating Officer which fact by itself is sufficient to suggest partiality of the investigation causing prejudice to the case of appellant.
Further submitted that the evidence led by the prosecution is neither worthy of credit nor confidence-inspiring.
' On the other hand, learned D.P.G. While defending the impugned judgment maintained that evidence of Javed Iqbal constable (P.W.5) and Safdar Hussain S.-I. (P.W.6) is sufficient to prove the case of prosecution beyond any shadow of doubt. Maintained that though both the witnesses were cross-examined but their credibility could not be shaken in the cross-examination. Further argued that both the witnesses being police officials having no malice or bias would hardly implicate appellant falsely.
6. In order to prove factum of recovery, prosecution banked upon evidence of Javed Iqbal constable (P.W.5) a recover witness and Safdar Hussain, S.-I. (P.W.6), complainant as well as Investigating Officer. Direct statements of both the witnesses are in line with the case of prosecution set up in the complaint (Exh.PC) but nevertheless the identity of the appellant being an accused becomes doubtful as he was not apprehended at the spot. Though the appellant was nominated in the F.I.R. And both the witnesses with one voice implicated him by name but nevertheless it is not the case of both the witnesses that appellant was known to them previously and as such keeping in view the stance of the prosecution regarding escape of appellant from the spot, identity of the appellant as an accused becomes doubtful. Since both the witnesses maintained that the appellant managed to escape from the spot, therefore, convincing and corroborative evidence was required to prove the identity of the appellant as an accused beyond any shadow of doubt particularly in view of stance of appellant categorically denying the factum of coming to the pointed place, throwing bicycle and managing to escape. Evidence of both the witnesses is silent, how they got knowledge regarding the particulars of appellant. It is not the case of prosecution that appellant was known to both the witnesses previously. Even otherwise, source of information was not disclosed by the witnesses regarding their knowledge about the particulars of the appellant being accused.
' In the attending circumstances argument canvassed by learned D.P.-G. Though with vehemence that credibility of witnesses could not be shaken in the cross-examination would not advance the plea of prosecution to prove that the person, who according to prosecution story managed to escape from the place of recovery was in fact the appellant.
7. In order to prove the charge against the appellant beyond shadow of doubt, prosecution was obliged to prove that the present appellant was transporting certain material and the said material was contraband. In view of discussion made in preceding paragraphs there can be no two opinions that prosecution has failed to establish identity of the appellant as an accused who on the day and time of occurrence managed to escape from the spot while throwing bicycle containing bucket having contraband material.
8. The prosecution also failed to establish that the contraband material which allegedly was recovered from the appellant was a narcotic as safe custody of sample parcel is seriously doubtful. Muhammad Ramzan, Head constable (Moharrar) while appearing as (P.W. 2) deposed that he was given two sealed parcels said to contain charas on 17-12-2003, which were kept safely in malkhana by him and on 24-12-2003, he .Handed over one sealed parcel to Liaqat Ali constable for onward transmission to the office of Chemical Examiner. Report of Chemical Examiner (Exh.PF) also suggests that sample parcel was sent to the said office through Liaqat Ali Constable No.1928.
Strangely enough said Liaqat Ali was not produced by the prosecution for the reason best known to the prosecution. Omission for any reason is important, going to the root of the case in order to demolish superstructure of prosecution version. It is the case of prosecution coming from the mouth of Muhammad Ramzan, Headconstable (P.W.2) that he handed over sample parcel to Liaqat Ali constable on 24-12-2003 but perusal of Report of Chemical Examiner (Exh.PF) suggests that the docket was prepared on ,22-12-2003 and the same was forwarded to Chemical Examiner to the D Government of Punjab for analysis on same day. Since Liaqat Ali did not put his appearance as a witness, therefore, the statement of Muhammad Ramzan, HC (P.W.2) cannot be believed, relied and acted upon in order to suggest safe custody of sample parcel and that too on 24-12-2003.
' Perusal of Report of Chemical Examiner (Exh. PF) further suggests that docket was prepared on 22-12-2003 from the office of Excise and Taxation Officer, Gujranwala. It is not known how and when the sample parcel was sent to the office of Excise and Taxation Officer, Gujranwala. The prosecution failed to produce any evidence in this regard. Learned D.P.G. Despite query put by us failed to point out any material available on record to suggest transmission of sample parcel to the office of Excise and Taxation Officer, Gujranwala. Since the prosecution failed to produce any evidence regarding safe custody of the sample parcel in the office of Excise and Taxation Officer, therefore, in the circumstances it would not be in the safe criminal administration of justice to endorse conviction and sentence awarded to appellant. In the similar circumstances, learned Division Bench of this Court while dealing with this aspect in the case of "MUHAMMAD ABBAS v. THE STATE" (2006 YLR 2378) while setting aside conviction and sentence recorded acquittal. We respectfully endorsed the view taken in the Report. It is to be noted that provisions of The Control of Narcotic Substances Act, 1997, provides stringent punishment and as such its provisions are to be construed strictly as held by the honourable Supreme Court of Pakistan in "MUHAMMAD HASHIM V.
THE STATE" (PLD 2004 Supreme Court 856).
9. Argument canvassed at the instance of learned Deputy Prosecutor-General that huge quantity of contraband material recovered from the appellant rules out his false implication has least impressed us. The argument though appears to be attractive in form but is of little help in substance to the prosecution because the alleged recovery of huge quantity of contraband material by itself would not be sufficient to prove the charge against the appellant beyond shadow of doubt, which fact was required to be established by the prosecution beyond shadow of doubt by producing convincing and worthy of credit evidence.
' Discussion made in preceding paragraphs clearly demonstrate inability of prosecution to prove the charge against the appellant beyond shadow of doubt.
10. Suspicion, however, strong cannot take the place of proof.
11. In view of the matter, the prosecution failed to prove its case against the appellant beyond shadow of doubt. It is well-settled proposition of law that for extending benefit of doubt, to an accused there must not be so many circumstances and even a single circumstance creating reasonable doubt about veracity of prosecution version would be sufficient to grant benefit of doubt to the accused not as a matter of concession and grace but as a matter of right. We are fortified in our view by law laid down in "TARIQ PERVEZ v. THE STATE" (1995 SCM R 1345), "AKHTAR ALI and others v. THE STATE" (2008 SCM R 6),,"GHULAM QADIR and 2 others v. THE STATE" (2008 SCM R 1221), FAHEEM AHMED FAROOQUI v. THE STATE" (2008 SCM R 1572) and "ALLAH BACHAYA and another v.
THE STATE" (PLD 2008 Supreme Court 349).
12. Epitome of above discussion is that while accepting the appeal and setting aside the impugned judgment dated 24-4-2007, extending benefit of doubt, appellant is hereby acquitted of the charge. He be released forthwith, not required in any other case.