' GHULAM sARWAR KORAI, J.---Through captioned appeals, appellants, have assailed Judgments dated 13-2-2013, in special Cases Nos.97 of 2012 and 108 of 2012 passed by the Court of learned special Judge Narcotics, shikarpur, whereby appellants were convicted for the offence punishable under section 9(c), Control of Narcotic substances Act, 1997 and sentenced to suffer penal servitude for eight years and pay fine of Rs. One lac in default of payment of fine to undergo s.I. For six months more. However benefit of section 382-B, Cr.P.C., was extended.
2. Case of the prosecution is that on 20-2-2012 sIP Hajan shah, sHO Police station Garhi Yasin along with his staff left on patrolling, when they reached at main road near village Khahi, received a spy information about two persons namely Nazeer (the present appellant) and Ghulam Murtaza having contraband substance of narcotics are available at link road. At 1000 hours, they reached at pointed place, where found two persons coming towards them. They tried to slip away but Police party encircled and detained them as suspects. On enquiry they disclosed their names as Nazeer and Ghulam Murtaza Jatoi. Their personal search was conducted in presence of AsI Nisar Ahmed and HC Ghulam Asghar and thus recovery of 1100 and 1200 grams of charas, respectively was effected from the fold of their shalwar, containing in Polythene bags. Recovered narcotics substances/charas was sealed separately; consequently two separate F.I.Rs. Being Nos.18 and 19 of 2012 were lodged; after completing investigation, they were sent up for trial.
3. At the proceedings, before trial court, copies were supplied to the accused persons, formal charge was framed to which they pleaded not guilty and claimed for trial.
4. To substantiate charge, prosecution examined sIP Hajan shah examined as Exh.5, who produced memo of arrest and recovery as Exh.5/A, F.I.R. As Exh.5/B, copies of Extract of entries as Exhs.5-C and D, report of Chemical Examiner as Exh.4/E, AsI Nisar Ahmed was examined as Exh.6, and then side of the prosecution was closed vide statement as Exh.7.
5. Statements under section 342, Cr.P.C., of appellant Nazir and Ghulam Murtaza were recorded at Exhs.8 and 10 respectively. Appellant Ghulam Murtaza examined himself on oath under section 340(2), Cr.P.C. And defence witness Manthar.
6. Learned counsel for the appellant contended that the appellants have been implicated falsely.
The appellant and accused Ghulam Murtaza were arrested by sIP Iqtidar Hussain Jatoi, Ex. s.H.O Police station Khanpur with whom the appellant and accused Ghulam Murtaza had enmity; at his instance F.I.R. Was registered. He also contended that on the day of alleged incident viz: 20-2-2012 (offence day) an application under section 491, Cr.P.C., with regard to illegal detention of appellants was moved before learned sessions Judge, shikarpur, which is sufficient proof that they were already arrested, and alleged recovery was foisted upon them, while passing impugned judgment, defence evidence was not placed in juxtaposition. He lastly contended that property was not de-sealed in the court; mushirnama of arrest regarding both F.I.Rs. Is joint; sufficient contradictions was brought on record, for benefit of doubt single infirmity is sufficient as held as of Tariq Bashir; Case was investigated by complainant himself and mashirs of the recovery are police officials and subordinates to the complainant, in spite of that they were having information of the crime.
7. Ms. Rahat Ahsan, learned DPG for the state, while refuting the above contentions, argued that the appellants were arrested by the police on spy information. Charas was recovered from their possession. Prosecution succeeded to prove its case beyond reasonable doubt, therefore impugned judgment is in accordance with law. Appeals are devoid of merits.
8. After careful consideration of the contentions rose by parties, and meticulous examination of the available record. Suffice to say that it has come on record that alleged charas was weighed from a different place, but prosecution has not brought any evidence on record, to corroborate the same.
It is matter of record that date of instant crime and application under section 491, Cr.P.C., preferred before the Court of learned sessions Judge, shikarpur about detention of the appellant by sIP Iqtidar Hussain Jatoi is same; whereas time of recovery is 1 noon near Garhi Yaseen Taluka of District shikarpur, and F.I.R. Was lodged on Police station Garhi Yaseen hence it is not believable to a prudent mind that a villager residing in the far-flung area, got knowledge of appellants' arrest thereafter in a short while they engaged counsel and filed such application before sessions Judge shikarpur.
9. Besides, it is patent on record that chemical examination report, is delayed about two days, in sending the samples for chemical examination, and same is not plausibly explained by the prosecution that when it was sent on 21-2-2012 and reached at laboratory on 23-2-2012, then during this period where it was kept, when it is matter of fact that Chemical Examination Laboratory is situated in adjoining District, where the recovery was effected and first information report was registered. It is also not disputed that all the witnesses are police officials, however they cannot be termed as unreliable witnesses but when it has come on record, through the evidence of P.W. Nisar Ahmed at Exh.6, that "Local persons were available at Khahi road. I do not know whether sHO has called any person", that private persons were available at the site, and police party was having prior information, regarding the crime in spite of that they had not taken efforts to join the private witnesses; therefore, the manner of recovery as narrated through evidence recorded by police officials has lost its sanctity.
10. It is settled proposition of law that a single dent in prosecution case is sufficient to acquit the accused and it is wise, saying that 'for all reason it is true to say "that miscarriage of justice may arise from acquittal of the guilty, no less from conviction of the innocent", reference can be made to the case of Muhammad Aslam v. The state reported in 2011 SCM R 820.
11. For foregoing reasons, instant appeals were allowed by our short order dated 29-1-2014; whereby impugned judgment was set aside and appellants were acquitted.