WAQAR AHMAD SETH, J.---Convict - appellant Rashid was tried under section 9-C CNSA and on conclusion of trial, vide impugned judgment dated 26-10-2013 he was convicted and sentenced to rigorous imprisonment for life with a fine of Rs.1,00,000, or in default thereof to further undergo one year SI.
2. Briefly stated facts of the prosecution case are that on 22-7-2012, the local police of Police Station while on routine `gusht, laid nakabandi, stopped taxi Alto bearing No.U-5097 Karachi, which was checked and from beneath the rear seat found a plastic bag. The bag was opened and 12 full packets of charas weighing 14 kilograms wrapped in plastics were recovered.
3. After completion of investigation challan was put in court and trial commenced. Accused pleaded not guilty and claim trial. The prosecution examined six witnesses in order to prove its case. After close of prosecution evidence statement of accused was recorded under section 342, Cr.P.C. Who did not wish to be examined on Oath under section 340(2), Cr,P.C. Nor produced any evidence in defence.
4. At the conclusion of trial, after hearing the arguments of learned counsel for the parties with reference to the material on file, the learned trial Judge convicted and sentenced the accused appellant, as noted above.
5. Arguments heard and record perused.
6. PW-1 in his cross-examination stated that it is a case of routine `gasht. There was no prior information regarding the trafficking of narcotics contraband. The place of occurrence is situated at a distance of 13/14 kilometers from the Police Station. The Police party laid nakabandi at 4.00 a.m. The police party had not checked any other vehicle nor came across the same while going to the spot from the Police Station. The nakabandi was laid at Phulkari road surrounded by 100/150 houses. It was darkness when the vehicle was coming from Parhana side. It is correct that the vehicle of the accused had lit fall lights. The bag was checked outside the vehicle on 'road and while checking it was morning prayer time. The witness, further stated that out of nine packets, he had taken only 5 grams from one slab out of 16 slabs. PW-2 contradicts PW-1 and stated that it was 3.20 a.m. When they left Police Station and reached the spot within 30/35 minutes and while coming from the Police Station they had searched 2/3 vehicles before reaching the place of nakabandi, -including vehicles as well as inmates of the said vehicles, who were milk sellers. To a question he said if it is affirmed by the SHO that he had no information about the occurrence it would be a false statement on his behalf. There was slight light at the spot and accused had not lit the lights of his vehicle. The bag was checked inside the vehicle. To a suggestion PW stated that SHO took 9 samples from each slab. Further stated if it is affirmed by the SHO that out of 16 slabs in one packet only 5 grams was taken from one slab it would be an incorrect statement on his behalf.
PW-1 stated that he used weights unit of one Kg, 200 grams, 100 and 500 grams whereas PW2 stated that SHO used one thousand, 100 and 50 grams weight units. PW-6 further made improvements by saying that while going to the spot they came across 8/10 vehicles, which were checked. The bag was taken out of the vehicle and was searched on the road side. The I.O. Used two weight bots of 500 grams one 1000 grams and the third of 5 grams. PW-1 stated that the place of nakabandi is at a distance of one kilometer from village Phulkari and the curves are at a height then the placed of nakabandi whereas PW-2 stated that nakabandi is towards Parhana side from village Phulkari. Further stated that it is incorrect to suggest that the place of nakabandi is at a height than village Phulkari. Statements of all the PWs improved at the trial are not worth reliance, rather such improvements creates serious doubts about their veracity and credibility, Reliance is placed on the case of Khadim Hussain v. The State reported as 2010 YLR 2919 wherein it was held as under:- "b) Ss. 302 (b), 324 & 337-F(ii) Qatl-i-amd, attempt to commit qatl-i-amd and causing of hurt -- Appreciation of evidence -Improvements made at trial-- Effect -- Statement of any witness is improved at the trial is not worth relying, rather such improvement creates serious doubts about its veracity and credibility". c) Ss.302(b), 324 & 337-F(ii).--Qatl-i-amd, attempt to commit qatl-t-amd and causing of hurt-- Appreciation of evidence -Benefit of doubt -- Shifting of venue of occurrence -- Whenever the venue of occurrence is shifted and there is no report of serologist to supplement the same, the benefit of such circumstance has to be resolved in favour of accused".
7. The contraband charas was allegedly recovered on 22-7-2012 and the sample was sent to and received by FSL on 26-7-2012 i.e. On the 5th day of the occurrence, which has not been explained by the prosecution. No witness from public was either associated to witness the recovery of chars or to cite as marginal witness to the recovery memo. There is unexplained delay of four days in sending the samples of contraband for analysis to the Laboratory for analysis, which has created serious doubt regarding the report of FSL Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001 , provides as under:-- "4. Dispatch of sample for test or analysis. (1)
(1) ............
(2) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure. The envelope should be sealed and marked "Secret Drug Sample/Test Memorandum".
8. In case, of Muhammad Akram v. The State reported as (2009 SCMR 23), it was held as under:- "Benefit of doubt--Principles--For giving the benefit of doubt it is not necessary that there should be many, circumstances creating doubts--Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right".
9. It appears that local police has falsely involved the accused in the instant case and that without bringing substantive evidence on record. In the facts and circumstances of the case the prosecution has not been able to prove its case against appellant beyond any shadow of doubt and by extending such benefit the convict appellant deserves acquittal from the charge.
10. Consequently, this appeal is allowed, the conviction and sentence recorded by learned Additional Sessions Judge-II/Judge Special Court, Mansehra on 26-10-2013 stand set-aside and he is acquitted of the charge. He be set free forthwith if not required in any other case.