Abdul Sami Khan, J.--This judgment shall dispose of Criminal Appeal No, 51. of 2011 titled Zarar Ahmad & another. v. The State & another and Criminal Appeal No, 98 of 2011 titled Muhammad Shahid v. State as they arise out of the same judgment dated 24.12.2010 passed by the learned Additional Sessions Judge, Multan whereby appellants were convicted and sentenced as under: " Muhammad Shahid alias Atteywala s/o Abdul Wahid, Zarar Ahmad s/o Niaz Ahmad and Mst.
Hasina W/0 Zarar Ahmad are held guilty of the offence under Section 9-C of CNSA of 1997 are sentenced to imprisonment for life S.I., each with fine of Rs, 1 lac to each accused. In case of default of fine, these three accused shall under go one year S.I. The accused persons are also given the benefit of Section 382-B, Cr.P.C."
2. Succinctly, the prosecution story as narrated in the F.I.R. (Ex.PA/1) is that on receiving a secret information that Zarar son of Niaz Ahmad alongwith his wife Mst. Haseena and Muhammad Shahid alias Atteywala son of Abdul Wahid resident of Justice Hameed Colony, Multan are involved in the selling of narcotics in bulk (Thoke) and on the pointation of the informer a raid was conducted and found that a white colour jeep was standing in the street and in the light of the bulb the I.O. and the other police officials saw a woman and two men while boarding a jeep driven by Muhammad Shahid (appellant) succeeded to ran away. The door of the house was opened and in the room 374 packets of charas weighing 11 Mounds and 8 kilograms were recovered. From each packet, ten gram charas was separated as sample for chemical analysis. Narcotics recovered from the possession of the accused was taken into possession and after completing necessary formalities a case F.I.R. No, 169/04 dated' 28.04.2004 was registered under Section 9(c), Control of Narcotic Substances Act, 1997 at Police Station Gulgasht, Multan.
3. After due investigation the appellants were challaned to face trial. Learned trial Court framed charged against them to which they pleaded not guilty and claimed trial.
4. To prove its case the prosecution examined six witnesses in all and tendered in evidence Chemical Examiner Report Ex.PH.
5. After the recording of prosecution evidence, appellants were examined under Section 342, Cr.P.C. whereby they professed their innocence and denied the recovery of narcotics from their possession.
The appellants did not opt to make statements on oath under Section 340(2), Cr.P.C. However, Shahid Hussain and Zarar have tendered in their defence attested copies of statements of PW-5 Fayyaz Ahmad 813/HC and PW-6 Muhammad Aslam Jam DSP recorded in case FIR No, 167 as Ex.D.1 and Ex.D.2. After examining the record and hearing the arguments, learned trial Court proceeded to convict and sentence the appellants as mentioned above.
6. Learned counsel for the appellants argued that the prosecution has failed to produce credible evidence against the appellants and had failed to prove case against the appellants beyond reasonable doubt. He submits that the house from where the narcotic was recovered was not owned by the appellant. The prosecution had not produced Mst. Balqees Bibi owner of the house as P:W. to prove that the appellants have taken the said house on rent from her. She was also not arrayed as an accused in this case. He further submits that the jeep on which allegedly the accused persons escaped from the place of occurrence has not been recovered by the police and the charas was also not recovered from the active possession of the accused/appellants persons and they have been involved in this case on the basis of photograph and I.D. Card. Further submitted that no evidence has been brought on record by the prosecution to establish that the alleged contraband belongs to appellants through any independent evidence and no independent witness from the vicinity come forward to support the prosecution case. He further submitted that there are material contradictions in the statements of the prosecution witnesses.
7. On the other hand learned D.P.G. while supporting the impugned judgment submits that the recovery has been made from the possession of the appellants and sufficient evidence has been produced by the prosecution to prove its case against the appellants and they were rightly convicted and sentenced by the learned trial Court. It was argued that such a huge quantity cannot be planted. He further argued that report of chemical examiner is positive.
8. We have considered the respective contentions of learned counsel for the appellants as well as learned D.P.G. and perused the record with their able assistance.
9. Allegedly on prior information raid was conducted but no independent witness from the locality was joined in the recovery proceedings. The appellants were not arrested by the police at the spot despite the fact that a number of police officials were present. Admittedly the house from where the contraband was recovered was not owned by the appellants so, the packets of charas recovered from the house cannot be believed to be owned by the appellants. Admittedly, nothing has been recovered from the active possession of the appellants. It is well-settled legal principle regarding dispensation of justice in criminal cases that if any reasonable doubt is created in the case of the prosecution then its benefit is to be extended to the accused. In the instant case even if whole evidence of the prosecution is considered in its totality, it is not established beyond reasonable doubt that the alleged contraband was owned by on appellants or the same were in their active possession.
10. For what has been discussed above, we are of the considered view that the prosecution has miserably failed to prove its case against the appellants, so by extending the benefits of doubt to the appellants, this appeal is allowed. Resultantly, conviction and sentence of the appellants is set aside, they are acquitted of the charge and ordered to be released forthwith, if not required in any other case.