' SHAUKAT ALI MEMON, J.---The Court of Special Judge (C.N.S.)/Sessions Judge, Badin convicted the appellant in Special Case No.191 of 2003 under section 9(b) of Control of Narcotic Substances Act, 1997 and sentenced him to suffer R.I. For four years and to pay fine of Rs.25,000 or in default in payment of fine, to suffer R.I. For three months. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. Instant jail appeal written in Sindhi language is directed against the above conviction and sentence with the pleas that appellant is labourer and was taken away from his house by Pangrio police and for his release an amount of Rs.20,000 was demanded, which the appellant could not pay, thus was involved and challaned in false and fabricated case after one month of detention. It is stated that police personnel Tayyab and Shahid in plain clothes used to misbehave with villagers, to which nekmards of the village admonished them, whereafter, both turned hostile against the appellant and ultimately arrested him at 10-00 p.m. From his house. The appellant has further challenged the findings of the trial Court based upon incorrect appreciation of the evidence regarding alleged escape from the bus stop in presence of police mobile and his arrest on same day from the hotel only upon identification of two police constables Shahid and Tayyab. The non citing of the private witnesses present at bus stop and relying upon the evidence of police personnel for the purpose of holding him guilty is also challenged.
3. The case of the prosecution is that complainant ASI Muhammad Umer of Police Station Pangrio with' his staff PC Shahid Hussain, PC Muhammad Tayyab and driver HC Muhammad Siddique in official mobile was on patrol duty in the area, when near bus stop they spotted a person to be present accused, who on seeing police started running towards village and during efforts to apprehend him, he threw down one shopper and made his escape-good. The shopper was found containing 240 grams of Charas, which was secured through seizure memo prepared in presence of mashirs PC Shahid Hussain and PC Muhammad Tayyab after separating 10 grams of sample for chemical examination. The police party in pursuit of the culprit then went towards village, who was found sitting at the hotel with few persons of Chandio tribe, who resisted his arrest and those persons after giving lathi blows to police party escaped with the appellant. The police party then returned to police station where Crime No.20 of 2003 on 8-5-2003 at 9-00 a.m. Was registered under section 9(b) of Control of Narcotic Substances Act, 1997, The challan was submitted later on in absence of the appellant, who was arrested subsequently and was admitted to bail by the trial Court.
4. At trial, prosecution examined complainant Muhammad Umer, PC Shahid Hussain and through them mashirnama of the seizure of the charas, F.I.R. And the chemical report were exhibited. The accused in his 342, Cr.P.C. Statement denied possession of -the seized charas and for chemical report stated that it was arranged one and for deposition of the P.Ws., he stated that they are interested witnesses. He pleaded his false involvement and claimed innocence, however, neither he owned the case property nor opted for his examination on oath or for leading any evidence in defence.
5. The trial Court found the prosecution evidence trustworthy and recorded the conviction and sentence, mentioned above.
6. Heard learned counsel for appellant and learned DPG for State and scrutinized the record.
7. It is argued by learned counsel for the appellant that case is false; that appellant is innocent; that there are material contradictions between evidence of two witnesses regarding quantity of property seized; that appellant was not arrested at the spot; that sample was sent to Chemical Examiner with an unexplained delay of 7 months; that private persons despite availability were not associated as mashirs of the seizure memo and that conviction recorded is not in appreciation of the recognized principles of the criminal administration of justice. Lastly, setting aside of the conviction and sentence is urged.
8. Conversely, learned D.P.G. Submitted that recovery of the narcotics is established through evidence of reliable prosecution witnesses, who though police personnel, are as good as private witnesses until mala fide and against them is alleged and proved. For late dispatch of the sample to the Chemical Examiner, it is submitted that delay in sending the sample is not always fatal to the prosecution until serious prejudice is caused to the accused, in the end, maintaining of the conviction and sentence is prayed.
9. Reading of the impugned judgment shows that trial Court has not discussed the evidence of the prosecution witnesses given by them in cross-examination but has drawn the conclusion that questions put to them are formal in nature, thus, their evidence is uniform and consistent on material particulars of the case and it stands unshattered. For late sending of the sample to the Chemical Examiner it is observed that it was of no significance, as no question is put in cross- examination regarding case property either having been tampered with or sample thereof having not been sent for analysis.
10. According to Article 132 of Qanun-e-Shahadat Order 1984, the evidence includes examination- in-chief, cross-examination as well as re-examination and it appears that while delivering the impugned judgment entire evidence is not taken into consideration by the trial Court. In the first place only two prosecution witnesses are examined, which do not include the I.O. Of the case and the side of prosecution is closed vide statement Exh.9. Neither any of the examined witnesses has stated about the sending of the sample to the Chemical Examiner, which may have necessitated the defence to have put any question about delay in sending the sample. Simply chemical report is produced at Exh.7, which carries the date of dispatch and receipt of the sample in the office of Chemical Examiner. As per this report sample was delivered by hand through PC Anwar Ali vide letter dated 20-11-2003 and it was received in the office of the Chemical Examiner on 2-12-2003. It is prosecution version that property was seized and sealed on 8-5-2003 at 7-00 a.m. Vide mashirnama Exh.5, thus, there is extra ordinary and abnormal delay of almost 7 months in delivery of the sample. Even the sample was dispatched vide letter dated 20-11-2003 by hand yet was delivered on C 2-12-2003 again late by 12 days, which reflects gross negligence and inaction on part of the I.O. It is not known as to why sample was kept at police station for such long time and for 12 days by PC Anwar Ali, thus, in given circumstances no sanctity can be attached to originality of the sample so preserve. In case of Muhammad Aslam reported as 2011 SCM R 820, delay of more than 7 days in sending the samples of Narcotic without explanation, whatsoever from the side of prosecution, was viewed as distinguishing feature and benefit of doubt was extended while allowing the appeal upon consideration of other prosecution evidence.
11. There is yet another disturbing aspect of the prosecution case. P.W. Muhammad Umer in his evidence has stated that charas seized was weighed as 110 grams, of which 10 grams were separated for chemical examination and separately sealed, while on this score P.W. Shahid Hussain has stated that it was 250 grams. This is a major contradiction and goes to the very root and merits of the prosecution case and should not have formed the basis of proof of the guilt of the appellant.
12. It is by now a settled law that multiple factors and infirmities are not necessary for creating doubt and dent in the prosecution case. A single infirmity is sufficient for such doubt and the benefit whereof must be extended to accused. In these circumstances, we are of the view that there are major contradictions in quantity of the seized narcotic; sample is sent by delay of about 7 months without any plausible explanation; arrest of the appellant is not from the spot and 'on the day of the alleged incident; escape of the appellant on foot in presence of police mobile at the disposal and command of the P. Ws. In morning light of the day appears unconvincing, therefore, conviction and sentence by trial Court cannot be maintained.
12(sic.) Above are the reasons of our short order dated 12-9-2013, whereby we while allowing the appeal and setting aside the impugned judgment, acquitted the appellant of the charge by extending him benefit of doubt. The appellant was present on bail, his bail was cancelled and surety stands discharged.