Abdul Sami Khan, J.--This judgment shall dispose of above captioned Criminal Appeal filed by Zarar Ahmad, appellant who was convicted by the learned Additional Sessions Judge, Multan vide judgment dated 24.12.2010 and sentenced as under: ....Zarar Ahmad s/o Niaz Ahmad under Section 9-C of CNSA of 1997 is sentenced to 10 years S.I. imprisonment with fine of Rs, 14000/-. In case of default of fine the accused undergo 7 months S.I. imprisonment. The accused person is 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) is that on receiving a secret information that Zarar son of Niaz Ahmad while having a bag of narcotic in his hand coming towards Allah Shafi Chowk. A raid was conducted upon and on seeing the police party he started running. He was chased by the police officials and after some distance he threw the bag and while taking the advantage of dark night succeeded to ran away from the spot. The six packets of narcotic recovered from the spot was weighed which become 7.5. kilograms of opium. From each packet, ten gram heroin 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, 167/04 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 appellant was challaned to face trial. Learned trial Court 'framed charged against him to which he pleaded not guilty and claimed trial.
4. To prove its case the prosecution examined seven witnesses in all and tendered in evidence Chemical Examiner Report Ex.PG/1.
5. After the recording of prosecution evidence, appellant was examined under Section 342, Cr.P.C. whereby he professed innocence and denied the recovery of narcotics from his possession. The appellants did not opt to make statement on oath under Section 340(2), Cr.P.C. After examining the record and hearing the arguments, learned trial Court proceeded to convict and sentence the appellant as mentioned above.
6. Learned counsel for the appellants argued that the prosecution has failed to produce credible evidence against the appellant and case against him has not been proved beyond any reasonable doubt. He further submits that the opium was not recovered from the active possession of the accused person, and he has 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 appellant through any independent evidence.
Further submits that no independent witness from the vicinity had 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 appellant. The appellant was seen by the P.Ws. running away from the place while throwing the bags containing contraband and sufficient evidence has been produced by the prosecution to bring home, guilt of the appellant and he was rightly convicted and sentenced by the learned trial Court.
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 person from the locality was joined in the recovery proceedings. The appellant was not arrested by the police at the spot despite the fact that a number of police officials were present. The packets recovered from the place of occurrence cannot be considered to be owned by the appellant as nothing has been recovered from the active possession of the appellant. 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 as a matter of right. 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 the appellant or the same was in his 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 appellant, so by extending the benefit of doubt to the appellant, this appeal is allowed. Resultantly, conviction and sentence of the appellant is set aside, he is acquitted of the charge and ordered to be released forthwith, if not required in any other case.