' ABDUL MAALIK GADDI, J.---Through this criminal appeal, judgment dated 14-2-2012, passed by learned Special Judge for CNS, Dadu, in special narcotic Case No,470/2011, re State v. Muhammad Salah Gadehi has been challenged by the appellant, whereby the appellant has been convicted and sentenced to suffer imprisonment for three years R.I and to pay fine of Rs,20,000, and in case of default of payment of fine, it was ordered that he shall undergo R.I for one month more.
2. Brief facts of the prosecution case are that the appellant has been sent up for trial in FIR bearing Crime No,277/2011 of P.S K.N. Shah, under Section 9 (b) of the Control of Narcotic Substances Act, 1997, lodged by ASI Muhammad Saleh Pitafi for having arrested the appellant on 14-7-2011, at 1030 hours from Mir Hassan Mori Road for being in possession of 350 puries of heroin powder, total weighing 260 grams, and also recovered the cash of Rs,150 in shape of three currency notes of Rs,50 each in presence of P.0 Abdul Hameed and P.0 Moula Bakhsh.
3. After registration of FIR, its copy was supplied to Ghulam Mustafa, Investigating Officer for investigation purpose. During investigation, 161, Cr.P.C. Statements of prosecution witnesses were recorded. Sample of only 01 gram heroin powder was sent to- chemical examiner on 21-9-2011 for analysis. Positive report was received. After usual investigation challan was submitted against appellant under Section 9(b) of the Control of Narcotic Substances Act, 1997.
4. A formal charge against the appellant was framed at Exh.2 by the trial Court. Appellant met the charge with denial with his plea at Exh.3. At the trial prosecution examined Muhammad Saleh Pitafi at Exh.4, he produced the copy of roznamcha entry, under which the police party left police station at Exh.5. Memo of arrest of accused and recovery at Exh.6. He also produced FIR and report of Chemical Examiner at Exh.7 & Exh.8, respectively. Prosecution has also examined Mashir P.C. Abdul Hameed at Exh.9 and so also examined Ghulam Mustafa, investigating officer of the case at Exh.10.
Side of prosecution was closed vide statement at Exh.11.
5. Thereafter, statement of accused/ appellant was recorded by trial Court under section 342, Cr.P.C. Accused/appellant claimed his false implication in this case and denied the prosecution allegations. Appellant declined to examine himself on oath and also declined to lead any evidence in disproof of prosecution allegations.
6. After hearing the learned counsel for the parties, learned Special Judge for CNS, Dadu, come to the conclusion that case has been proved against appellant; he convicted and sentenced the appellant as stated above.
7. Mr. Lal Shah, Advocate for the appellant contended that the case against appellant is false.
Nothing was recovered from his possession. Per learned counsel that alleged incident took place on 14-7-2011, at 1030 hours (day-time) and alleged recovery was effected from Mir Hassan Mori Road which is admittedly a populated area, despite of this fact no independent person of the locality was invited to act as mashir to witness the event as such according to him false implication of the appellant in this case on the basis of evidence of prosecution witnesses, who are police officials and their evidence too is contradictory cannot be relied upon. He has also argued that evidence of complainant who has lodged FIR himself, is not trustworthy, as the same is contradictory with the evidence of Mashir on so many material points. Learned defence counsel- referred to the major contradictions in the evidence of complainant and mashir with regard that who was duty officer at police station on 14-7-2011. Reference has also been made to other contradiction to the effect that complainant says in his examination-in-chief that mashirnama of arrest and recovery was prepared by him, whereas mashir Abdul Hameed in his cross-examination says that mashirnama was written by P.C. Ghulam Shabir. It has also been argued that there was delay of two months and seven days in sending the sample of heroin powder to chemical examiner and prosecution has failed to examine ASI Allah Ditto, who had taken the sample to chemical laboratory. It is also argued that prosecution has failed to prove its case against appellant, but the trial Court did not appreciate the evidence properly, and passed impugned judgment without assigning any good and convincing reasons, which is liable to be set aside.
8. Conversely, learned A.P.G. Argued that prosecution evidence is trustworthy; contradictions are minor in nature; delay in sending heroin powder to chemical examiner would not be fatal for the prosecution; prosecution has proved its case against appellant and prayed for dismissal of the appeal.
9. We have carefully considered the arguments advanced by the learned counsel for the parties and scanned the evidence and documents produced by the prosecution in evidence.
10. We have come to the conclusion that prosecution has failed to prove its case-against the appellant for several reasons. Admittedly, the alleged incident took place on 14-7-2011 at 1030 hours in day time from Mir Hassan Mori road, which is surrounded by houses as admitted by the complainant; yet the complainant did not call/arrange any independent person of the locality to act as mashir of the event. Record shows that complainant had sufficient time to call the private persons for making them as Mashir in this case; omission has not been explained by the prosecution to the satisfaction of the Court. No doubt, the evidence of police officials is as good, as other witnesses, yet where whole case of the prosecution depends upon evidence of the police officials; it requires independent corroboration through independent witnesses, which is lacking in this case.
11. The evidence of complainant is contradictory to the evidence of mashirs on so many material points. Complainant in his evidence has stated that after the arrest of appellant he prepared such mashirnama of arrest and recovery on spot in presence of mashirs PC Abdul Hameed and PC Moula Bux, but on this point Mashir PC Abdul Hameed in his cross-examination contradicted him and has stated that the mashirnama was written by PC Ghulam Shabir. Complainant ASI Muhammad Saleh Pitafi in his evidence has stated that he does not remember who was .Duty officer at P.S K.N. Shah when he came at police station for lodging the FIR, whereas PC Abdul Harneed in his cross-examination has stated that when they arrived at police station, ASI Ghulam Mustafa was duty officer. It is stated by the complainant that three notes of Rs,50 were also recovered from possession of the appellant but it is admitted in his cross-examination that serial numbers of three notes of Rs,50 each are not mentioned in the mashirnama. Perusal of record shows that the prosecution has produced entry No,4 dated 14-7-2011, with regard to leaving the police station but no entry of their arrival at P.S. K.N. Shah has been produced in evidence. Non- production of this vital document creates serious doubt in relation to the genuineness of prosecution story. In this regard, we are supported with the case of Fareed Ahmed Langra v. The State, reported in 1998 PCr.LJ 1368. As per prosecution case itself, 350 puries of heroin powder total weighing 260 grams were recovered from possession of the appellant, out of which only three puries weighing one gram were sent to chemical laboratory for examination and report; rest of 347 puries appears to have gone untouched. There is no explanation on record, why remaining heroin puries were not opened to see whether these puries containing heroin powder or otherwise. When the learned A.P.G. Was confronted with such material contradiction in the evidence as well lacunas in the prosecution case, no satisfactory explanation was furnished.
12. According to the prosecution case, out of 350 purees heroin powder only one gram was sent to the chemical laboratory on 21:9-2011, after the delay of two months and seven days. Delay in sending the heroin powder to the chemical examiner has not been explained. Even, for satisfaction of the Court it has not been brought on record that it was in the safe custody of the investigating officer of the case and there was no chance of tampering. Prosecution has also failed to examine ASI Allah Ditto who had taken sample to the chemical examiner, so that he could have been subjected to the cross-examination on the point as to in whose custody, the sealed parcel of sample of heroin powder was lying during intervening period of two months and seven days. The above circumstances in the light of evidence adduced by the prosecution clearly show that the evidence of the prosecution witnesses is highly unbelievable. The alleged sample of .Narcotic substance was sent to chemical examiner after two months and seven days, though as per Rule 4(2) of the Control of Narcotic Substances (Govt. Analysts) Rules, 2001, this exercise was required to be completed within 72 hours of the recovery, and for this purpose, even there is no plausible explanation furnished by the prosecution as to how such inordinate delay was caused in the completion of this exercise by the investigating officer. In this regard, we are supported with the case of Muhammad Aslam v. The State, reported in 2011 SCM R 820. In this case-law inordinate delay of sending parcel to chemical examiner along with other factors were considered and accused was acquitted.
13. Accused in his statement has claimed enmity with the police officials and stated that prosecution witnesses are interested. In the background of the enmity, as alleged by the accused this Court require some corroboration to the evidence of police officials, but as observed above the evidence of prosecution witnesses not only contradictory to each other but also not trustworthy in view of the scenario of the case. Besides, it is settled law that defence was not duty bound to disprove the case of prosecution, but burden of proof was always on prosecution to prove case beyond doubt.
14. For our above stated reasons, we have no hesitation to hold that prosecution failed to prove its case against the appellant. Learned trial Court did not appreciate the evidence properly. It is settled position of law that, if there is slightest apprehension regarding prosecution case being un- true, its benefit shall be extended to the accused. For the above stated reasons, we extend benefit of doubt to the appellant. Resultantly, appeal is allowed. The impugned judgment is set-aside and the appellant is acquitted of the charge. He is present on bail, his bail bond stands cancelled and surety is discharged.
15. This appeal was allowed by short Order dated 22-10-2014, and above are the reasons in support thereof.