SALAHUDDIN PANHWAR, J.---The appellants have assailed judgment dated 21st June, 2012 passed by Special Judge (CNS), Sukkur in Special Case No,69/2011 (Re: State v. Rehmatullah and others), whereby the appellant Rehmatullah was convicted for 5 years and 6 months with fine of Rs,25,000 in default to suffer SI for 5 months and 15 days, whereas appellant Ghulam Mustafa alias Mustoo was convicted and sentenced to RI for 4 years and 6 months with fine of Rs,20,000 in default SI for 5 months more.
2. Facts, as set out in the prosecution case are that on 9-12-2011. Inspector Shamsuddin Bhayo, the SHO Police Station 'B' Section, Sukkur lodged report wherein, he mentioned that on that date he along with HC Ghulam Mustafa Chachar, PC Qamaruddin Mirani, PC Ghulam Nabi and PC Mehar, Ali left Police Station at about 11-00 p.m. Under entry No,33, in the official vehicle driven by driver/PC Muhammad Nawaz Bhatti for patrolling in the area, when they reached near Excise Office chowk, Sukkur they noticed on the street light two persons coming from opposite side, out of whom one has a bag in his hand, who seeing the police mobile immediately turned towards Bhangi-para' and started running. The complainant party alighted from the vehicle and suspecting them commended to stop but they did not stop; hence they were chased. During their chase both the culprits climbed over the closed Railway Phatak/gate and jumped over the other side on which they fell down and sustained injuries. The complainant party, on reaching near them captured both the accused. It was about 12-30 a.m. (night) and due to non-availability of private persons complainant nominated HC Ghulam Mustafa and PC Qamaruddin as mashirs and enquired from the accused about their names and address to which the person having bag disclosed his name as Rehmatullah alias Pappu resident of Kumbhar Mohalla New Pind, Sukkur. On his bodily search a pistol without number containing six live bullets in its magazine was recovered from left fold of his shalwar while a cash of Rs,100 was secured from front pocket of his shirt. The bag took from him was found containing three packets of charas. The other person disclosed his name as Ghulam Mustafa alias Mustoo son of Muhammad Ayaz alias Muhammad Hayat by caste Gadani resident of Kumbhar mohalla New Pind Sukkur. On his bodily search two packets of charas from right fold of his shalwar was recovered while a cash of Rs,200 was secured from front pocket of his shirt. The packets of charas recovered from accused Rehmatullah were weighed and weight of each packet was found to be of 1(one) Kilogram making a total of 3 (three) Kilograms, 250 Grams from each packet, total 750 Grams, were segregated and sealed as samples while the remaining were sealed as the case property. The packets of charas recovered from the possession of accused Ghulam Mustafa were weighed and weight of each packet was found to be of 1 (one) Kilogram making a total of 2 (two) Kilograms, 250 Grams from each packet total 500 Grams were segregated and sealed as samples while the remaining were sealed as the case property. They were formally arrested and such mashirnama was prepared which was attested by the above named mashirs.
They were then taken to Police Station 'B' Section, Sukkur where the case was registered against them on behalf of the State.
3. That after lodgment of FIR, usual investigation was carried out; statements of the witnesses were recorded and the samples were sent to chemical laboratory and finally the challan was submitted before the Court for trial of arrested accused.
4. To substantiate charge, prosecution examined P.W.1 mashir HC Ghulam Mustafa at Exh.5, who produced mashirnama of arrest and recovery at Exh. 5-A. P.W.2 complainant Inspector Shamsuddin Bhayo at Exh.7, who produced extract of entries Nos. 33 and 37, copy of FIR, report of chemical examiner, criminal record of accused and 11 FIRs registered against the accused persons at Exhs.7-A to 7-Q; P.W.3 Medical Officer Dr. Muhammad Yaseen, who examined the accused and gave them treatment at Exh.9 produced referral letter of the accused as well as provisional and final medical certificates of the accused at Exhs.9-A to 9-E. Thereafter the side of the prosecution was closed.
5. Statement of accused persons were recorded under section 342, Cr.P.C. Wherein they denied the allegations and professed their innocence. They also examined themselves on Oath. Accused Rehmatullah produced a bunch of documents. They also examined D. Ws. Saeed Ahmed, Allah Bux, Mumtaz Ali and Mst. Maryam in their defence.
6. Learned counsel for the appellants inter alia contended that the appellants are innocent and have been implicated falsely, due to enmity, allegedly they were arrested on 9-12-2011 but chemical examiner's report reflects that samples for chemical examination were sent by letter No,RC 220 dated 9-11-2011 one month before, which is sufficient to say that the alleged property was foisted upon the appellant; prosecution has failed to examine P.W. Aijaz Ali as such samples were in his possession and he deposited the same in the chemical laboratory; all the witnesses are police officials, enmity is admitted therefore on their evidence conviction negates settled principles of criminal administration of justice and it is an admitted position that police caused injuries to the appellants and they were examined by medical officer and he has relied upon Amjad Ali v. The State (2012 SCMR 577), Muhammad Aslam v. The State (2011 SCMR 820) and Trinity Private School and another v. Mumtaz H. Hidayatullah and others (1997 SCMR 494).
7. Conversely, learned APG for the State while refuting the contention of appellants' counsel maintained that impugned judgment is according to law, narcotics substances were recovered from both of them; the injuries on the body of accused persons are very much explained in FIR and it is clerical mistake as instead of 9-12-2011 mistakenly 9-11-2011 has been written, such mistake is human error and cannot be based on acquittal and he has relied upon Tariq Mahmood v. The State through Deputy Attorney General Peshawar (PLD 2009 SC 39).
8. Heard the learned counsel for the parties and perused the record.
9. From meticulous, examination of the record, it is manifest that witnesses are police officials but their status as police officials is not sufficient to disbelieve their evidence but insist upon to examine such evidence with great care and caution. Keeping in view the said principle, we have examined the evidence of Ghulam Mustafa and Shamsuddin Bhayo and documents produced by them. It is an admitted position that both the persons received various injuries on their body; they were examined by medical officer and in that regard prosecution has taken plea that while they were trying to escape they jumped over the railway Phatak and fell down on earth, therefore they received injuries. To substantiate this plea prosecution examined medical officer, who has answered that:- "It is correct to suggest that commonly a person may be received this type of injuries by falling from the height of about 8/10 feet", whereas witnesses in their cross-examination have stated that the height of Phatak was 4/5 feet".
The evidence of eye-witnesses does not find support from medical evidence and even it does not stand to logic and reason that both accused persons received same nature of injuries while jumping over a hedge/wall of 4/5 feet.
10. Be that as it may, since it is alleged that Narcotic Substances were recovered from the appellants but counsel for appellants has taken plea that same has been foisted upon them while referring to chemical report which reflects that samples were sent through letter No,RC 220 dated 9-11-2011 whereas they were arrested on 9-12-2011. Before touching this aspect of the matter, we would like to say that cases of narcotics could rest only if it is established that articles recovered were, in fact, contraband articles and not otherwise. The status of the recovery, in narcotics matters, could only be determined through chemical examination and not on mere words of the prosecution, therefore, we conclusively can say that where chemical report is negative or is doubtful no conviction could legally sustain in narcotics cases. Having said so, now we would examine the point raised by learned counsel for the appellants while keeping in view the plea of State Counsel that it is a clerical error. In that context we have examined the evidence of both the witnesses and it is important to refer the relevant portion of the cross-examination of P.W.
Shamsuddin Bhayo. He deposed that: "It is correct to suggest that I have not written the date of seizes, place of recovery and type over a parcels. It is correct to suggest that I had not put numbers over the parcels".
Further he has stated that: "Samples were sent to chemical laboratory on 9-11-2011 but I have not produced such letter before this Court. The samples were sent through PC Aijaz. It is correct to suggest that the case was registered against me in the year 1999 for implicating the accused persons in false case."
After appraisal of this evidence, it cannot be said that mistaken date is typographical and every possibility is there that property might have been foisted upon the appellants, thus this aspect creates reasonable doubt to the prudent mind and shatter credibility of witnesses therefore it is a settled proposition of law that single dent in the prosecution case is sufficient to extend benefit of such dent in prosecution case in favour of accused persons. Thus impugned Judgment is not maintainable under the law and same is liable to be set aside.
11. Regarding the plea of State that the appellant Rehmatullah was involved in various cases of Narcotics therefore he is habitual offender and inference can be drawn against him that the instant case is also based on real facts. In that regard it is suffice to say that C mere registration of criminal cases is not sufficient to hold one as guilty because it is not the FIR which declares one to be culprit but it is the verdict of the Court of law only which could declare one as culprit/guilty because the basic principle of Administration of Criminal Justice is that accused is to be presumed innocent until found guilty. Moreover the appellant has taken plea that all cases were false based on enmity and he was acquitted by the competent Court, thus such plea has no legal force and conviction cannot be based on that plea alone because every case has its own facts and circumstances and is to be tried in its independent capacity.
12. Above are the detailed reasons by short order dated 7th March, 2013 whereby instant appeal was allowed.