' IRFAN SAADAT KHAN, J.--- This Criminal Appeal has been directed against the judgment dated 15- 8-2006, passed by the learned Special Judge, CNS, Hyderabad, in Special Case No.30 of 2005, in respect of Crime No.08 of 2005, under section 9(c) of Control of Narcotic Substances Act, 1997, registered at Police Station Excise Divisional Special Squad Hyderabad, whereby the appellant was convicted and sentenced to suffer rigorous imprisonment for 05 years and to pay fine of Rs.50,000, in default whereof, the appellant to undergo further imprisonment for 6 months. The benefit of section 382-B, Cr.P.C. Was however extended to the appellant.
2. Briefly, the facts of the prosecution case are that on 5-4-2005, Excise Inspector Muhammad Aqif Khan Ghaznavi of Divisional Special Squad Hyderabad lodged FIR bearing Crime No.08/2008, stating therein that on receiving spy information he along with his subordinate staff went towards pointed place and when reached at Laloo Lashari graveyard at about 1000 hours, they saw one person standing outside the graveyard, who, on seeing the Excise Police party tried to run away, but Excise Police encircled and apprehended him. On interrogation, the apprehended person disclosed his name as Shafqat Mehmood son of Kabeer Khan resident of House No.248, Village Laloo Lashari Kali Mori, Hyderabad. Thereafter, Excise Police conducted personal search and from the front fold of his shalwar recovered two juice packets. On further search, Rs.165 were also recovered. On opening the said juice packets, charas was found, which was weighed and found to be 2 kilograms.
Thereafter, 10 grams of charas was taken from each juice packet and sealed for chemical examination, whereas remaining charas was also sealed separately. Thereafter, the accused and the recovered property were brought at police station, where FIR was registered.
3. After usual investigation, appellant was sent up to face trial. At trial, the prosecution has examined P.W-1 Excise E.D. Muhammad Khan and P.W-2 Excise Inspector Muhammad Aqif and closed its side. Thereafter, statement of the appellant was recorded under section 342, Cr.P.C. And after hearing the arguments, learned trial Court delivered the impugned judgment and convicted the appellant as. Mentioned above. Hence this appeal.
4. Syed Madad Ali Shah, learned counsel for the appellant after, reading the deposition led by the prosecution before the trial Court, has contended that in the first place P.W.1 Muhammad Khan has stated that 10/15 public persons gathered at the place of incident, whereas, as per examination-in- chief of P.W-2 Muhammad Aqif no public person was available at the time of incident, however, in his cross-examination this P.W. Has stated that 20 to 25 persons gathered at the place of incident.
Learned counsel states that this is a major contradiction. He further states that when admittedly number of private persons had gathered at the time of occurrence how no one was picked up to act as mashir of arrest or recovery. Learned counsel thereafter drew the attention of the Court to page-18 (mashirnama of arrest and recovery) of the paper book wherein there is gap in between the contents of the mashirnama and the signatures of the mashirs, which, according to learned counsel, creates doubt as it seems that first signatures of the mashirs were obtained and the mashirnama was written later on. He submits that there is 8 days' delay in sending the sample to the Chemical Examiner and no plausible explanation has been furnished in this regard. He further submits that the quantity of the charas sent to the Chemical Examiner does not tally with the statement made in this regard. He also submits that the deposition of P.W-2 is self contradictory, as in the examination-in-chief he stated that no public person was available at the spot, whereas in the cross-examination he stated that 20-25 private persons were available when the accused was arrested. He stated that in criminal case for creating doubt not many reasons are required, even if a single doubt is created the accused/appellant is entitled to be extended the benefit of such doubt. In support of his contentions, the learned counsel has relied upon the cases of Muhammad Aslam v. State (2011 SCMR 820), Munawar Ali Jatoi v. State (2012 MLD 1763 [Sindh] Nazeer Ahmed v.
State (PLD 2009 Karachi 191), Umer Rehman v. State (PLD 2009 Karachi 284), Zahid lqbal v. State (2008 YLR 985 (Lahore) and Niamatullah Khan v. State (2012 YLR 251 [Sindh]).
5. The learned D.P.G. On the other hand, stated that Charas was recovered from the possession of the appellant and Chemical report is in positive. He therefore, supports the impugned judgment.
6. We have heard the learned counsel for the appellant, learned D.P.G. Appearing for the State and perused the record as well as case-law, referred to above.
7. Perusal of the record reveals that major contradiction is evident from the deposition of the prosecution witnesses, as P.W-1 in his cross-examination has stated that 10-15 public persons were available at the spot, whereas P.W-2 in his examination-in-chief has stated that "due to non- availability of public persons, I nominated ED Muhammad Khan and EC Manzoor Ali as mashirs and took the personal search of accused in their presence", however, this P.W. In his cross-examination has stated that "20 to 25 persons had gathered at the place of incident, when accused was arrested". This major contradiction creates a dent in the prosecution case, however, If the cross- examination of both prosecution witnesses is taken together then there is no plausible explanation appears to be furnished that in spite of the admitted position that many private persons were available at the time of occurrence why no private person was picked up to act as mashir of arrest as well as recovery. We are fully conscious of the fact that in C.N.S. Cases public witness is not necessary and police officials are as good witnesses as others, but in the instant case the contradiction is evident if deposition of both prosecution witnesses is compared with the cross- examination of the very witness. The learned D.P.G. Could not also controvert the fact that there is 8 days' delay in sending the sample for chemical examination and no plausible explanation has been furnished as to where, before sending the sample to Chemical Examiner, it was lying, which, in our view, creates doubt. It is also an undeniable fact that weight of the narcotic substance sent for chemical examination does not tally with the weight disclosed in the deposition of the P.Ws. It is also interesting to note that when admittedly 10-15 or 20-25 private persons had gathered at the spot how the police officials/P.Ws. Assumed the role of mashirs of arrest and recovery in the instant case, which has not been explained. It is a trite proposition of law that police officials are made witnesses when independent people were not present at all and/or not willing to act as such, whereas in the present case it has not been brought on the record that whether the private persons were asked to act as mashir, rather, it has been admitted by P.W-1 in his cross- examination that public persons, who had gathered at the spot, were not approached to act as mashir of arrest and recovery in the instant case, which also creates serious doubt about possessing the narcotic substances by the appellant. It is also a trite proposition of law that benefit of any doubt if created in the prosecution case, has to be extended to the appellant/accused. In one of the judgment, relied upon by the learned counsel for the appellant i.e. Niamatullah Khan (Supra) authored by one of us namely "Irfan Saadat Khan, J." after dealing with the matter in detail, it was observed as under:-- "It has been held in a number of decisions given by the superior courts that for giving benefit of doubt to accused person there need not be a number of circumstantial evidences to prove the innocence even a single evidence appearing to a prudent mind creating doubt is more than enough to acquit a person."
8. In view of the facts and circumstances as mentioned above, we are of the view that the case in hand is not free from contradictions and doubts. It is also noted that the learned D.P.G. Has neither controverted the fact that no attempt by the excise police party was made to take the public persons as mashir, specially, when admittedly 10-15 or 20-25 public persons gathered at the spot.
The D.P.G. Has also failed to dislodge the contentions made by the learned counsel for the appellant that there was an unexplained delay of 8 days in sending the sample for chemical examination, though under Rule 4(2) of the Control of Narcotic Substances (Government Analysts)
Rules, 2001, this exercise was required to be completed within seventy two hours of the recovery. He has also failed to controvert the fact that there has been a difference in the weight of the sample of the narcotic substances sent for the chemical examination; as mentioned above. The evidence of both prosecution witnesses, as discussed above, is unbelievable.
In view of whatever has been discussed above, we, while extending the benefit of doubt in favour of the appellant, allowed the appeal, set aside the impugned judgment and acquitted the appellant by our short order dated 28-2-2013 and above are the reasons of the same.