' SHAUKAT ALI MEMON, J.---Through this appeal judgment of conviction and sentence recorded by the court of special Judge (Narcotics) Dadu in Special Case No.421 of 2004 under section 9-B of the C.N.S.A. 1997 is impugned, where by appellant was convicted and sentenced to R.I for 15 months and to pay fine of Rs.5000 or in default, to suffer R.I for three months more. The benefit of section 382-B, Cr.P.C. Was also extended.
2. In the memo of appeal it is, inter alia, asserted that the trial court has not taken into consideration the contradictions in between the evidence of the prosecution witnesses and has ignored the, fact of delay in sending of the sample to the Chemical Examiner as well as not noticed the violation of the provisions of the 103, Cr.P.C. As no person of the locality is associated with the search, seizure and arrest of the appellant, thus impugned judgment based on conjunctures and surmises, is liable to be set aside.
3. The case of the prosecution as stated, is that complainant A.S.-I. Ali Asghar Panhwar of Police Station Dadu on 4-10-2004 with his staff HC Mushtaque Ahmed, PC Shahzado and PC Muhammad Ayoob after keeping departure entry at 2300 hours, left police station for checking of the vehicular traffic at Johi diversion. At 2330 hours they noticed one Suzuki Pick-up coming from Larkana side, wherefrom one person boarded down and attempted to slip away who on being suspected was apprehended. He on enquiry disclosed his name as Ghulam Akbar Solangi. The present appellant) and from his personal search five pieces of charas wrapped in plastic weighing 180 grams were secured, of which 10 grams were separated and sealed for chemical analysis. The process of search/seizure and arrest was witnessed by HC Mushtaque Ahmed and PC Muhammad Ayoob, who acted as mashirs and put their signatures on such memo prepared at spot. The F.I.R. Was lodged on same night by A.S.-I. Ali Asghar Panhwar at 0030 hours on 5-10-2004. The sample delivered in the office of Chemical Examiner on 27-10-2004 was certified containing charas vide report dated 1-1-2005.
4. During trial although appellant pleaded not guilty, but on appraisal of the evidence his guilt was established resulting into the conviction and sentence recorded as above.
5. At trial prosecution examined three witnesses, namely, complainant and head of the police party A.S.-I. Ali Asghar Panhwar, mashir and member of the police party PC Muhammad Ayoob and S.H.O./ I.O. Nazar Muhammad, through them mashirnama of seizure and arrest, departure and arrival entries, F.I.R. And the chemical report were exhibited.
6. In his evidence A.S.-I. Ali Asghar Panhwar deposed about his departure from police station vide Entry No. 48 (Ex-4/A)along with H.C. Mushtaque Ahrned, PC Shahzado and PC Muhammad Ayoob at 2300 hours and their reaching at Johi More. He further stated about checking of the vehicles as well as travellers and search of the person of the appellant at 2330 hours as suspected passenger of the Suzuki Pick-up coming from Larkana side and recovery of five pieces Hof charas from his possession wrapped in plastic weighing 180 grams. He also stated that he got it weighed through HC Mushtaque Ahmed from the nearby shop, of which 10 grams were separated and sealed for chemical analysis. The mashirnama of search/seizure and arrest prepared in presence of mashirs He Mushtaque Ahmed and PC Muhammad Ayoob at spot is produced as (Ex-4/B). According to him he approached the private persons to act as mashirs but no body showed his. Willingness. He has also testified the F.I.R. (Ex-4/C) lodged on same night at 0030 hours on 5-10-2004. The accused and property present in the court are identified by him to be same.
7. In cross-examination he stated to have gone to the place of incident two kilometers away from the police station by foot through station road and admitted that place of incident is within jurisdiction of Police Post Marakhpur where one A.S.-I. And police personal remain posted. He accepted that he did not make his arrival entry at P.P and on that date said staff was on duty at Uris of Qalendar Shahbaz and HC Mushtaque. Ahmed took 2 minutes and returned after weighing the charas and by then appellant had not gone with him. He further stated that the piece weighing 10 grams was sealed in separate parcel for sending to the Chemical Examiner. While seeing the case property available in court he confirmed that parcel of cloth was having five pieces and such note is mentioned over the bag.
8. P.W H.C. Mushtaque Ahmed has supported the evidence of complainant A.S.-I. Ali Asghar regarding arrest and recovery from the possession of the appellant during checking of the vehicular traffic at Johi More but has materially differed about the route adopted for reaching to place of recovery and the means of transport used. He has stated that they departed from police station in police mobile driven by the complainant himself and adopted route of Bus Stand through S.P More and Indus Highway for reaching the place of incident.
9. P.W 3 SIP Nazar Muhammad has deposed that he was S.H.O. At the relevant time when F.I.R. Was lodged by the complainant and that he investigated the crime as well as submitted the challan after receiving the chemical report Ex-8/A in positive of the sample sent by him. In cross- examination he failed to confirm if the sample was sent on 26-10-2004 nor could he tell the name of the constable through whom sample was sent to the Chemical Examiner. By going through the list of witnesses he replied that the name of said constable is not mentioned in it.
10. The appellant in his 342, Cr.P.C. Statement denied recovery of narcotic substance from his possession; for witnesses he termed them as interested and pleaded that he was innocent and was taken from Bus Stand Dadu by H.C. Mushtaque Ahmed on his way to Uris of Hazrat Qalander Shahbaz and was involved in this false case by foisting the property upon him. The appellant neither examined himself on oath nor opted for any evidence in defence.
11. Heard learned counsel for appellant and learned DPG for State.
12. It is argued for the appellant that the case is false; that appellant is innocent; that there are material and major contradictions between evidence of first two witnesses regarding route adopted after leaving the police station and the mode of transport used; that appellant was not arrested at the spot; that sample was sent to Chemical Examiner late by 25 days without plausible explanation; that private persons despite availability were not associated as mashirs of the seizure memo; that despite sending of one piece for chemical examination out of five pieces recovered, still five pieces are produced in court as case property instead of four pieces; that sequence of time regarding departure, arrival, duration of presence at Johi More and lodging of the F.I.R. Is given in such a way that renders it nearly improbable for a prosecution witnesses to have done it in such quick manner. It is further contended that parcel label of sample received in the office of Chemical Examiner bore the signature of A.S.-I. Police Station Dadu in his capacity as I.O., while as per P.W Nazar Muhammad he investigated the case after registration of the crime and recorded the 161, Cr.P.C. Statements as well as sent the sample to Chemical Examiner, thus it is urged that prosecution case is not free from the reasonable doubt, benefit whereof should have been given to the appellant as a matter of right. Finally, setting aside of the impugned judgment and acquittal of the appellant is prayed. In support authorities 2012 SCM R 577; 2011 SCM R 820 and 2007 M LD 825 are relied upon.
13. Conversely learned State counsel submitted that prosecution case of recovery of the 180 grams charas is proved through evidence of trustworthy prosecution witnesses, who though police personnel are at par with private persons until ill will, enmity and mala fides against them are proved. For late dispatch of the sample, no serious prejudices is stated to have been caused to the appellant and for pointed out contradictions, these are regarded as minor not effecting the proof of the prosecution case beyond reasonable doubt. About timings of departure, arrival and registration of crime within short span, same is defended as quite possible. For availability of 5 pieces as case property despite sending of one to the Chemical Examiner no convincing explanation is given. However maintaining of the conviction and sentence is pleaded.
14. On this score the observation of the trial Judge are:- ' ... Engagement of private person to act as mashir or witness the recovery in narcotic cases is not necessary in view of the provisions of section 25 of the Control of the Narcotic Substances Act, 1997.
Not only this but complainant has clearly explained in his F.I.R. That no private person was ready to act as mashir. The complainant has got no enmity with accused to involve him falsely in such a heinous offence. The chemical report is in positive. All the prosecution witnesses have supported the prosecution case on each and every point and not a single contradiction in the deposition of complainant and mashir has been pointed out by the learned counsel, which creates doubt regarding genuineness of the prosecution case. I have therefore come to the conclusion that prosecution has proved its case against accused Ghulam Akbar Solangi beyond any reasonable shadow of doubt
15. In the light of submission made by the learned counsel for the appellant, we have carefully gone through the case record as well as the impugned judgment and seen that evidence of the prosecution is lacking quality as well as reliability about the recovery of the narcotics from the possession of the appellant.
16. In the first place there are major contradictions within the evidence of two prosecution witnesses, the complainant Ali Asghar and mashir Mushtaque Ahmed, who were members of the police party and are professional police personnel having experience of search and seizure and the requirement of law. Both are poles apart in their evidence regarding their approach to the place of incident as one has stated to have gone on foot via station road while other has deposed to have adopted route of S.P More and Bus Stand in police mobile wheeled by complainant himself.
17. Secondly, alleged narcotic is not weighed in presence of the complainant as according to complainant it was sent through HC Mushtaque Ahmed for the purpose from the nearby shop and complainant had not gone with him, who returned within 2 minutes disclosing its weight to be 180 grams. As per complainant, out of 5 pieces one weighing 10 grams was separated for sample and sealed, which according to contents of the chemical report Ex-8/A was found as charas, yet same 5 pieces at the time of recording of the evidence of the complainant were found as case property present in the court. This raises two fold questions; whether more than 5 pieces of chars were secured and which one was sent for chemical analysis, and whether already separated quantity of 10 grams represents the remaining quantity as narcotics when no sample was drawn from those remaining 5 pieces..
18. Thirdly why private persons despite presence were not associated with search and recovery in gross violation of the provisions of section 103, Cr.P.C., which is meant for maintaining transparency and sanctity to the process of investigation. No doubt section 25 of the C.N.S.A. 1997 is an exception to the general rule under extra ordinary circumstances, yet necessity of employing private persons as mashirs cannot be overlooked wherever same is possible. Admittedly co-travellers of the appellant were present in the Suzuki Pick-Up besides availability of the shop-keeper at 50 feet away, who allegedly facilitated weighment of the narcotics within 2 minutes. Even section 161, Cr.P.C. Statement of that shop-keeper is not recorded to the effect that recovered narcotic was weighed by him and it consisted 5 or 6 pieces and one piece was separately weighed as 10 grams.
19. Fourthly, there is delay of about 22 days in sending of the sample as per contents of the chemical report as the property seized on 4-10-2004 was received by Chemical Examiner on 27-10- 2004 and there is absolutely no explanation as to why it was dispatched late, when not only statements of the witnesses under section 161, Cr.P.C. Were recorded on same day of the lodging of the F.I.R. besides visiting of the crime scene by I.O. In the circumstances only it was the report of the Chemical Examiner awaited for completion of the investigation and for submission of the challan, yet same was delayed for no reasons.
20. Fifthly, time sequence of departure at 2300 hours, apprehension of the appellant and preparation of the memo of arrest and recovery at 2330 hours, returning to police station at 0030 on 5-10-2004 vide Entry No. 50 and lodging of the F.I.R. At same time, again departure for same place vide Entry No. 51 at 0035 hours, is argued by learned counsel for the appellant as nearly impossible amounting to manipulation. It will be seen that the entire process of departure from police station by foot or by police mobile away from the place of incident by two kilometers and return and again going back to same place was completed within span of 1 hour 35 minutes, which included both sides travel, checking of the vehicles including alleged Suzuki Pick-Up, weighing of the recovered narcotics, preparation of the mashirnama at spot, lodging of the F.I.R. And recording of the 161, Cr.P.C. Statements of the witnesses on 4-10-2004, when F.I.R. Was registered on 5-10- 2004. There appears extra swiftness in completion of the above process in unusual way and leads us to the conclusion that quality of unimpeachable evidence free from all reasonable doubts is lacking for recording of the judgment of the conviction and sentence.
21. Referring to the case-law 2012 B SCMR 577, it reveals that apex court set aside conviction and sentence where sanctity of the report of the laboratory was found eroded by evidence of officials who could not correctly reply as to where samples remained between the dates when those were allegedly taken into possession from the car and the date when those were received by Forensic Science Laboratory, nor official witness could even tell the date as to when samples were sent for examination and which official had taken samples to the Laboratory.
22. In an authority 2011 SCM R 820, the accused was acquitted on benefit of doubt, where delay of more than seven days in sending the samples of narcotics to Chemical Examiner for analyses was not explained by the prosecution.
23. In last authority cited by defence 2007 M LD 825 contradictions being major and material in prosecution evidence were held not reconcilable, more particularly when prosecution witnesses were literate and experienced professional police officials quite often appearing as prosecution witnesses in court and benefit of doubt was extended to accused by acquitting him.
24. Reverting to the reasons, finding favour with the trial Court for awarding the conviction and sentence that complainant has got no enmity with the accused to involve him falsely in such a heinous crime, it is suffice to observe that in hierarchy of the criminal administration of justice, the prosecution has to prove its case free from all reasonable doubts and that too through trustworthy evidence by standing upon its legs irrespective of the weakness of the defence evidence. The absence of evidence of enmity of the complainant with accused is not the deciding factor and cannot be resolved in favour of the prosecution, when other material evidence is full of contradictions throwing doubt upon the veracity of the entire case of the prosecution.
25. It is by now a settled law that a single infirmity in prosecution case is sufficient for creating doubt within the mind of prudent man, for which multiple factors are not required, the benefit whereof must go to the accused.
26. There are major contradictions in prosecution evidence about manner and mode and the route adopted for reaching at the place of recovery; sample sent is by delay of more than 22 days with no explanation; arrest of the appellant and the recovery is not witnessed by the members of public despite their availability; the number of pieces secured whether 5 or 6 are uncertain; sample of one piece of 10 grams sent for chemical analyses does not represent the entire quantity, prosecution evidence is full of doubts, therefore while allowing the appeal the appellant is acquitted by extending him benefit of doubt and impugned judgment is set aside. The surety bonds executed for suspension of the sentence are discharged.