' MUHAMMAD ANWAR KHAN KASI, C.J.---This Criminal Appeal is directed against the Judgment dated 9-2-2013, passed by learned ASJ/JSC CNS Act, 1997, Islamabad, whereby the appellant [Muhammad Imran Sheikh] was convicted and sentenced to undergo 1-Year's R.I. With fine of Rs, 20,000, in default whereof, to further undergo SI for 1-Month, in case F.I.R. No,326, dated 15-7-2009, under section 9(c), C.N.S. Act, 1997, Police Station Shalimar, Islamabad. He was, however, extended the benefit of section 382-B, Cr.P.C.
2. Learned counsel for the appellant straightaway drew our attention towards the statements of recovery witnesses including the Investigating Officer. It was his stance that the evidence qua search and recovery of charas, from top to bottom, is tainted with material contradictions i,e, receipt of information, issuance of search warrants, manner of raid, place where alleged charas was lying and number of littars but the learned trial Court ignored all these discrepancies and passed the impugned Judgment on the basis of conjectures and surmises which is not sustainable in the eyes of law being hit by the settled principle that one single circumstance throwing doubt is sufficient to discard the prosecution case. It has further been argued that the exclusive possession of the appellant of the seized narcotics was not established by the prosecution and the material contradictions in the statements of prosecution witnesses had also discredited the alleged recovery from the appellant, who deserves outright acquittal. Learned counsel fortified his arguments by placing reliance upon case-laws cited as 2000 MLD PLD 2005 Karachi 218, 2000 PCr.LJ 760 and 2008 M LD 1333.
3. Learned Standing Counsel, on the other hand, resisted the above arguments by supporting the impugned Judgment. He submitted that the appellant was involved in nefarious activities of running a brothel house and was caught red-handed. A separate case under sections 371-A and B, P.P.C. And 3 and 4, Prohibition (EOH) Order, 1979 is pending adjudication. It cannot be said that the appellant had falsely been implicated or the narcotics was planted against him, therefore, minor discrepancies, if any, do not affect the veracity of the recovery witnesses, who are independent and truthful and without having allegation of malice or mala fide on their part, their evidence cannot be discarded because none of them had deposed that no charas was recovered from the possession of the appellant. Learned Standing Counsel prays for dismissal of this appeal.
4. Heard and record perused.
5. As per complaint, Exh.PC, on 15th of July, 2009, at about 2-00 a.m. [night time], Muhammad Hussain SI [P.W.7] of PS Shalimar Islamabad, along with other police officials including P.W.1 Zafar- Ullah HC and P.W.2 Abdul Qadir ASI Arshad Ali raided Guest House No,420, Sector F/1/-3, Main Double Road, after obtaining search warrant, from where present appellant was apprehended, who was found present on the counter of the Guest House. On search of the said counter, 1015-grams charas wrapped in polythene envelope was recovered, out of which ten grams was separated for chemical analysis and sealed into parcel. Remaining charas 1Y-1 was also sealed into parcel and both the parcels were taken into possession by the SI/I0 [P.W.7] vide recovery memo Exh.PA, duly attested by P.W.2 Abdul Qadir and Javed HC. Besides the said recovery, during the raid, four girls and contraband liquor were also recovered regarding which separate cases under section 371-A, P.P.C. And Articles 3 and 4, Hadd were registered.
6. In order to prove its case, the prosecution got examined 7 witnesses in all including the two recovery witnesses and the 10. After that, the appellant got recorded his statement wherein he denied the prosecution evidence and has taken the stance that he is innocent. He mentioned that local police used to charge `bhatta' from the guest' house owners and when he refused to satisfy their illegal demand, they involved him in this false case. However, the appellant opted not to make his statement on oath or to produce any evidence in defence. The learned trial Court, after hearing both the sides, convicted and sentenced the appellant as mentioned above hence, this appeal.
7. In order to see whether the discrepancies highlighted by the learned counsel and termed by the learned trial Court as minor are of such a calibre which can be easily ignored and overlooked by considering the same as slip of tongue or natural due to passage of long time.
8. Before doing the exercise, it is to be kept in mind that every criminal case is to be seen in the light of its own peculiar facts and circumstances and that while discharging the duty of safe administration of justice, the courts are under obligation to watch the interest of both the sides and not the prosecution side alone irrespective of the nature of offence. The evidence should be tested with utmost vigilance, care and caution especially in narcotic cases where stern sentences are provided for the offence charged.
9. In this case P.W.1 Zafar-Ullah, S.I., P.W.2 Abdul Qadir S.I. And P.W.7 Muhammad Hussain S.I. Had given the details of raid, apprehension of appellant and recovery of charas from the drawer of the counter, where the appellant was found standing. We have carefully gone through their statements, focusing only to the extent of recovery of charas, and found the same highly discrepant, which cannot be lightly ignored. For instance, according to P.W.1 [Zafar Ullah HC] he had seen the proceedings of recovery of charas which was wrapped in a polythene paper but he does not remember its colour, whether transparent or printed. He also does not know whether the charas was in the shape of slabs or otherwise. P.W.2 [Abdul Qadir ASI] admitted that he did not mention the colour of charas. Above all, P.W.7, the Investigating B Officer, in his statement admitted that he had not mentioned from which drawer, charas was recovered and that he had not mentioned the number of littars and also did not mention the colour of the shopping bag.
10. The above discrepancies, directly relate to the alleged recovery of charas, therefore, cannot be termed as minor rather the same make the prosecution case qua recovery of charas from the possession of the appellant as doubtful. It does not appeal to the reason that witnesses, who effected the recovery, had no knowledge about the colour of the charas, number of slabs or colour of wrapper. Therefore, the story of the prosecution respecting recovery of charas from the possession of the appellant is doubtful and cannot be believed.
11. It has also been held by the Hon'ble apex Court in case "Muhammad Imran v. The State" (2011 SCM R 1954) that stringent sentences have been provided under Control of Narcotic Substances Act, 1997 if offence charged against the accused is proved within any component of S.9 of Control of Narcotic Substances Act, 1997. For such reason, C.N.S.A. 1997 has to be construed strictly and relevant provision of law dealing with the procedure as well as furnishing proof like report of Expert etc. Are to be followed strictly in the interest of justice, otherwise it becomes impossible to hold that total commodity recovered from the possession of the accused was narcotics.
12. The rationale behind the dictums is that while dealing with such like cases special attention should be paid at the time of apprehension of the accused, his search, recovery proceedings and each and every detail should be brought on record so that it could be ascertained that entire proceedings conducted by the investigating agency are transparent and smacks truth. It is against the spirit of natural justice and in fact in contravention of the dictums laid down by the Hon'ble apex Court to convict the accused on the basis of such tainted evidence respecting recovery of charas.
13. In view of above discussion, we set aside the conviction and sentence inflicted upon the appellant Imran Sheikh, vide impugned Judgment dated 9-2-2013 and acquit him of the charge by giving benefit of doubt. He is discharged of his bail bonds.
14. . Appellant acquitted.