AHMED ALI M. SHAIKH, J.---Through this Criminal Appeal appellant Ameer Hamza has challenged the Judgment dated 12-9-2013 passed by learned Judge, Special Court No.II (CNS), Karachi, in Special Case No.22 of 2013 (FIR No.731/2012 of PS Saeedabad, Karachi), whereby appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo RI for ten years and pay a fine of Rs.50,000 or in lieu thereof to suffer further RI for six months.
2. Brief facts of the case are that on 27-12-2012 at about 0030 hours the complainant SIP Shahnawaz Mehrani along with his team while on patrolling and near Murshid Hospital found one person going to Mowach Goth on Hub River Road, Karachi, in suspicious condition. On inquiry, he disclosed his name as Ameer Hamza son of Dil Murad and on search two packs/slabs of charas/hashish weighing 1800 grams and one TT of .30 bore with three live cartridges and cash amount of Rs.210 was recovered. On the spot memos were prepared, and recovered narcotic and weapon were sealed. Consequently, FIR No.731/2012 was registered. After completion of investigation police submitted challan.
3. Charge under sections 6/9(c) of C.N.S. Act vas framed to which the appellant pleaded not guilty and claimed trial. At the trial, prosecution produced three witnesses namely P.W.1 complainant SIP Shahnawaz Mehrani, Exhibit 4, who produced roznamcha entry of departure, Exhibit 4-A, memo. Of arrest and recovery Exhibit 4-B, roznamcha entry of arrival as Exhibit 4-C; FIR Exhibit 4-D and memo. Of site inspection as Exhibit 4-E; P.W.2 HC Syed Munir Shah, mashir of arrest and recovery, Exhibit 5; and P.W.3 SIP Shan Muhammad as Exhibit 6, I.O. Of the case, who produced roznamcha entries as Exhibits 6-A and 6-B, letter addressed to chemical examiner as Exhibit 6-C and chemical examiner's report dated 7-1-2013 as Exhibit 6-D. Thereafter vide Exhibit 7 prosecution closed its side.
4. There after, statement under section 342, Cr.P.C. Of appellant was recorded as Exhibit 8, in which he denied the prosecution story. He, however, did not opt to examine himself under section 340(2) of Cr.P.C. Whereafter his side was closed.
5. Consequently, the trial Court after hearing the arguments Of both the side and discussing the evidence brought on record, convicted and sentenced the appellant vide impugned Judgment.
6. Mr. Fazalur Rehman Awan, learned counsel for the appellant has contended that the trial Court has not properly appreciated the evidence brought on record; that the impugned judgment is based on surmises and conjectures and non-corroboration; that no material warranting conviction and sentence was available before the trial Court; that at the time of announcement of judgment of conviction, the appellant was not called, which shows that trial Court was predetermined to convict the appellant; and that there is no independent witness in the case and impugned conviction and sentence, based on evidence of interested witnesses, is liable to be set aside.
7. On the other hand, learned APG for State while supporting the impugned Judgment has argued that police-officials are as good. Witnesses as private persons and their evidence can be relied upon if the same remained un-shattered during cross-examination; and that there is no question of violation of section 103 of Cr.P.C. As the same by virtue of section 25 of the C.N.S. Act, 1997, is excluded.
8. Heard learned counsel and perused the record and proceedings produced before us. P.W.1 SIP Shahnawaz Mehrani, complainant, in his examination in chief has stated that he himself has written the memo. Of arrest and recovery on the spot in presence of HC Munir Shah and PC Muhammad Iqbal while P.W.2 HC Syed Munir Shah, mashir of memo. Of arrest and recovery, Exhibit 4-B, in his examination in chief has stated that the memo. Was reduced in writing by the Munshi on the dictation of complainant SIP Shahnawaz Mahrani.
9. In the FIR as well as in the examination in chief, P.W.1 SIP complainant Shahnawaz Mehrani has stated that two packets/slabs of charas in red foil packing weighing 1800 grams was recovered from the appellant and in the cross-examination he denied a suggestion that charas was recovered from the fold of shalwar and admitted that "it is incorrect to suggest that charas was recovered from the accused." On the other hand, P.W.2 HC Syed Munir Shah, mashir of arrest and recovery of Exhibit 4-B, stated in his examination in chief that four big pieces and two small pieces of charas of greenish black colour were recovered from the fold of shalwar in shape of patties wrapped in red plastic. However, in cross-examination P.W.2 has also admitted that "it is incorrect to suggest that charas was recovered from the accused." He further stated that "it is incorrect to suggest that four pieces of charas kept in the fold of shalwar."
10. Additionally, P.W.1 in his cross-examination has stated that "on the relevant day accused was light blue shalwar kameez" while P.W.2 in his cross-examination revealed that "accused was ' wearing shalwar kameez of light brown colour on the relevant day." Similarly, P.W.1 in his examination in chief has stated that "thereafter the arrested accused along with recovered contraband charas and weapons were brought at PS where I had sealed the recovered charas and weapons" but the P.W.2 in his examination in chief has stated that "the recovered charas was sealed at the spot."
11. There is yet another contradiction/loophole in the prosecution case. P.W.1 complainant SI Shahnawaz Mahrani in his examination in chief has produced the case property duly sealed with seal of chemical analyzer as Article A, which was de-sealed in open Court. As per note of the trial Court sealed contraband consists of "two packets of charas each packet containing 2/2 slabs of charas with mark of "Sher shah 2012" with golden Colour". However, the Chemical Examiner in his report 7-1-2013 under the heading "Description of articles contained in the parcel" has given the following description:- "Parcel containing one foil packet contains one plastic thaili which contains two greenish brown hard slabs with smell of chars each covered with plastic along with one plastic thaili which contains two greenish brown hard half slabs with smell of charas each covered with plastic."
Admittedly, the report of the Chemical Examiner is silent about mark of charas.
12. In view of our above discussion, material contradictions between the evidence of prosecution witnesses and admission of P.W.1 and P.W.2 in their cross-examination that "It is incorrect to suggest that charas was recovered from the accused", it is quite clear that prosecution has miserably failed to prove its case beyond any reasonable doubt and the impugned, conviction and sentence cannot be maintained. Even otherwise, it is settled law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. Reference can be made to the case of Tariq Pervez v. State reported in 1995 SCMR 1345.
For the foregoing reasons, we by our short order dated 14-5-2014 allowed this Appeal, set aside the impugned judgment, acquitted the appellant of the charge and ordered his release if not required in any other case.