' Altaf Ibrahim Qureshi, J.--This appeal has been directed against the judgment dated 22.11.2010 passed by the learned Additional Sessions Judge; Khanpur, whereby the appellant-Khadim Hussain was found guilty of offence whereas his co-accused namely Abdul Majeed was acquitted from the charge. Accordingly, Khadim Hussain-appellant was convicted and sentenced under Section 9(c), Control of Narcotic Substances Act, 1997 to imprisonment for life along with fine of Rs.30,000/-, in default whereof to further undergo simple imprisonment for four months. He was allowed the benefit of Section 382-B, Cr.P.C. This judgment was rendered in case F.I.R. No. 285/2009, registered under Section 9(c), CNSA, 1997 with Police Station Saddar, Khanpur.
2. The appellant-Khadim Hussain has challenged his conviction & sentence through the instant Appeal.
3.The facts of the case as disclosed from FIR are that on 13.4.2009 at 08:15 p.m., Muhammad Younas Javaid, ASI, was present on patrolling duty in the area of Mauza Hakra along with other police officials where he received spy information that the present appellant and his co-accused Abdul Majeed being engaged in the business of narcotics are selling poast while sitting outside the house of Abdul Majeed whereupon said ASI sent a fake customer who purchased 50-kg.- poast from the said two accused for an amount of Rs. 10,000/- where-after raid was conducted. Present appellant, allegedly, was apprehended from the spot whereas his co-accused Abdul Majeed made his escape good on seeing the police party. It was alleged that on personal search of Khadim Hussain, Rs. 10,000/- as well as 'Wattack amount of Rs.5000/- was recovered. On his plantation, 75-sacks of poast were also recovered from the cattle-shed of house of Abdul Majeed and each sack contained 60-k.g. Weight. The total weight come to 112 maunds & 20-kilograms valuing Rs.15,00,000/-. One kilograms of recovered poast was separated for chemical analysis while the remaining poast and amount of Rs. 15000/- were taken into custody through recovery memo.
4. After registration of the First Information Report and completion of investigation, report in terms of Section 1.73, Cr.P.C. Was submitted before the Court of competent jurisdiction, where copies were supplied to the appellant and his co-accused Abdul Majeed 'charge was framed on 02.01.2010 to which the present appellant pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as five witnesses in all: PW-1 Faiz Ahmed, SI registered the case on written complaint Exh.PA. Khurram Nisar 281/C appeared as PW2 being witness of parcel.
Muhammad Akbar 1251/HC (PW-3) deposed regarding safe custody of poast in boundary of Police Station and transmission of parcel to the office of Chemical Examiner for analysis on 21.04.2009.
Muhammad Younas Javed, AST/complainant appeared as PW-4 and reiterated the contents of FIR.
Similarly, Muhammad Ibrahim, ASI appeared as PW-5 and deposed about recovery. The other recovery witness namely Muhammad Jameel 533/C-II was given-up being unnecessary. By tendering report of Chemical Examiner No. P-1369 dated 29.04.2009 Exh,PE, the prosecution evidence was closed.
5. Statements under Section 342, Cr.P.C. Of the appellant as well as his co-accused Abdul Majeed were recorded. All the allegations leveled against the appellant were denied. To the question, why this case against him and why the PWs had deposed against him, the appellant-Khadim Hussain replied as under:-- "I am qualified Hakeem and run a Dawakhana at Khanpur city. On 13.4.2009, at 12:noon, Muhammad Younas Javaid, ASI arrested me when I was present on my said Dawakhana. Muhammad Younas Javaid, ASI was inimical to me. Muhammad Younus Javaid, ASI prior to my arrest came to my Dawakhana for treatment. He obtained medicine from me without payment and on my demand he felt insult. Due to this grudge, he falsely involved me in this case. During investigation many persons of locality appeared before the authorities as well as before the LO. But the I.O. With mala fide intention did not record the statements of the respectables of localities. Many persons of locality submitted affidavits before the Justice of Peace, Khanpur inspire of direction issued by the Justice of Peace, Khanpur, the I.O. Did not attach the affidavits which were in my favour.
Muhammad Younus Javaid, ASI was not competent to investigate the case U/S. 9-C of CNSA, 1997.
He without authority got registered the case, arrested, challaned and me in the present case. I am respectable cititen. I am innocent. I neither sold the Poast and nothing recovered from my possession. I have no concern with the alleged place of recovery. The Sacks Ex.P.1/1-75 are not contained the Poast. Only the enhance gravity of offence is in the said sacks Ex.P.1/1-75, the (Choora of Sugarcahe) present."
' The present appellant-Khadim Hussain opted to lead evidence in his defence and produced Muhammad Ghufran as DW-1 and Muhammad Tariq as DW-2. Both these witnesses stated that the appellant was arrested from his Dawakhana and no recovery was effected from him. The appellant tender in defence evidence affidavits of Farooq Ahmad Exh.DB, Muhammad Anees Abbasi Exh.DC, Riaz Ahmed Exh.DD, Muhammad Tariq Exh.DE, Khurshid Ahmad Abbasi Exh.DF, Muhammad Saleem Exh.DG, Ghulam Abbas Exh.DH, Muhammad Iqbal Exh.DI, Muhammad Rashid Exh.DJ, Muhammad Ismail Exh. DK, Hafiz Muhammad Afaaq Exh.DL, Ashfaq Ahmad Exh.DM, Adnan' Ahmad Exh.DN, Abdul Rahman Exh.DO, Muhammad Kamran Khan Exh.D.P, Muhammad Azam Exh.DQ and affidavit of Muhammad Ghufran as Exh.DR. After completing the trial, learned trial Court convicted and sentenced the appellant, as stated supra in para No. 1 ante.
6. Learned counsel for the appellant contends that case against the appellant is totally fake and planted one; that only one kilogram from one sack out of 75-sacks was obtained for chemical analysis and admittedly in this case, only one packet was sent to the office of Chemical Examiner same was received and report thereon is that the recovered material was Poast Learned counsel for the appellant while referring to the case of Ameer Zeb us. The Stats (PLD 2012 Supreme Court 380) contends that case against the appellant, if at all, stands proved only to the extent of one kilogram and the other material cannot be considered in conviction and sentence of the appellant It is further contended that on the basis of same evidence, co-accused of the appellant namely Abdul Majeed has been acquitted by the learned trial Court. It is also contended that the prosecution evidence is full of contradictions which made the testimony of the PWs unworthy of credit; that Muhammad Jameel 533/C-II, another recovery witness, was not produced in the witness-box, which makes the present case doubtful; that the learned trial Court failed to appreciate the evidence properly. It is further contended that the appellant has served-out more than thirteen years of his sentence. It is also contended that there are dishonest improvements in the statements of PW-4 & PW-5 and the defence side has created many doubts in the prosecution case, hence, the impugned conviction and sentence are liable to be set-aside and the appellant is entitled to acquittal.
7. On the other hand, learned Deputy Prosecutor General vehemently opposed this appeal and supported the judgment of the learned trial Court, inter alia, on the grounds that huge quantity of 112-maunds and 20-kilograms of poast cannot be planted, especially when no enmity or malice is proved; that the learned trial Court had rightly appreciated the law .& facts on record, therefore, the conviction & sentence are unexceptional.
8. We have heard the arguments advanced from both sides and gone through the judgment as well as perused the record minutely, with their able assistance.
9. According to the prosecution case itself, as narrated in the , First Information Report, which is a foundation stone of a criminal case, the appellant-Khadim Hussain and his co-accused Abdul Majeed were reported to be selling poast. Upon this information, the complainant/I.O. Namely Muhammad Younus Javaid, AK sent a decoy customer, who purchased Poast Weighing 50- Kilograms from Khadim Hussain and Abdul Majeed for Rs. 10,000/-. Admittedly, the narcotics material recovered from the house owned by Abdul Majeed, co-accused of the present appellant who was not apprehended by the police at the time of raid. Perusal of FIR further reveals that as per spy information, the appellant as well as his co-accused had kept huge quantity of poast consisting of 70/80 sacks in the house of Abdul Majeed Panwar. It is also revealed that Khadim Hussain runs a Dawakhana in the name and style of 'A.I Dawakhana'. It is not the case of the prosecution that Khadim Hussain-appellant is a tenant of Abdul Majeed from where poast was recovered. The prosecution from inception to tail failed to bring on record any oral or documentary proof regarding the place of recovery that the appellant occupied the house in question on rent from his co-accused Abdul Majeed. Exh.PC is recovery memo, which shows that the place of recovery is a cattle-shed (chhappar) of his house. Nowhere has it been mentioned that the present appellant occupied the said premises on rent. PW-4 Muhammad Younus Javaid in his cross-examination stated that, 'we tried to catch hold Abdul Majeed accused but he ran away from the spot'. If the premises in question were given on rent to the present appellant then presence of Abdul Majeed at the spot is doubtful especially in absence of particulars of his abode.
We find no evidence to the effect that who occupied the house from where poast was recovered inasmuch as the owner of the house was declared innocent by police during course of investigation, who as per prosecution story itself, was present at the time of raid and fled away seeing the police party. Said Abdul Majeed has been acquitted by the learned trial Court disbelieving the prosecution evidence to his extent holding that Abdul Majeed had rented out the house to Khadim Hussain-appellant. The appellant during trial, to us, succeeded to substantiate that the recovered poast was not in his exclusive possession, therefore, merely raising plea that the present appellant was a tenant of Abdul Majeed, in absence of any oral or documentary proof in the shape of rent deed or receipt, as stated in the lines supra, is sufficient to exonerate the appellant from the charge.
10. Precise defence plea of appellant recorded vide his statement under Section 342, Cr.P.C. Is: "I am qualified Hakeem and run a Dawakhana at Khanpur city. On 13.4.2009, at 12:noon, Muhammad Younas Javaid, ASI arrested me when I was present on my said Dawakhana. Muhammad Younas Javaid, ASI was inimical to me. Muhammad Younus Javaid, ASI prior to my arrest came to my Dawakhana for treatment. He obtained medicine from me without payment and on my demand he felt insult. Due to this grudge, he falsely involved me in this case."
' On the other hand, in his statement under Section 342, Cr.P.C., the co-accused of the appellant Abdul Majeed stated:-- "I am innocent. I have given a Constructed plot/building to Khadim Hussain accused on rent where he stocks the articles of PANSAR. The I.
0. Younus Javaid has personal grudge with Khadim Hussain accused who involved me in this false case falsely because I have given the above said building to Khadim Hussain accused on rent. No recovery has been affected from my house and the police has planted a fake recovery upon me.
' From this statement, one thing is manifest that Younus Javaid had personal grudge against the present appellant. On one hand, Abdul Majeed took the plea that he had given his house on rent to the present appellant but on the other hand he stated that no recovery has been affected from his house. In this scenario, the defence version that the recovered post had been foisted upon the appellant is found plausible for two reasons. Firstly, there is no rebuttal against oral evidence of DW-1 & DW-2 as well as documentary evidence in the shape of affidavits Exh.D.B to Exh.D.R, as according to them the appellant was apprehended from his shop/Dawakhana. This fact gets support from the fact that in presence of duly constituted police raiding party, having prior information as well as sending a fake customer, it was impossible for Abdul Majeed, co-accused of the appellant to make his escape good despite the fact that as per admission of PW-4 in the cross-examination that the house of Abdul Majeed/place of recovery has only one door and no other entrance exists there. Secondly, the other recovery witness namely Muhammad Jamil 533/C- II was not produced in the witness-box. In this view of the matter when prosecution evidence is not free from doubt then the defence version taken by the appellant in his statement under Section 342, Cr.P.C. Is to be believed in toto; hence, it can safely be inferred that the recovery of poast from exclusive possession of the appellant is inconsequential.
12. Admittedly, only one kilogram of poast from one sack was sent to the office of Chemical Examiner through Khurram Nisar 281/C but forwarded by Excise and Taxation Officer. Learned counsel far the appellant while relying on Muhammad Abbas vs. The State (2008 P.Cr.LJ. 26) contended that Excise and Taxation Officer does not figure having no authority to keep the sample of recovered narcotics with him. Besides, Muhammad Ibrahim, ASI (PW-5), stated in his cross- examination that Muhammad Younus ASI separated one kilogram of poast from one sack for chemical analysis and sealed. No other sample was obtained from another sack/remaining sacks.
13. In addition to the above; PW-4 admitted in his cross-examination with regard to purchase by a fake customer that, "I did not take into custody above mentioned 50-Kg POAST separately for the purpose of chemical examiner for analysis. I am not in position to separate 50-Kg POAST from the remaining POAST. Rs.
10,000/- P-2 were without my signatures, without any sign and also without any numbers handed over to fake customer."
' PW-5, Muhammad Ibrahim ASI, also stated in his cross-examination that he did not identify as 10,000/- Ex.P-2. In this view of the matter, Rs.10,000/- cannot be said to be the same amount which was given by PW-4 to a dummy purchaser.
14. Another important aspect of the case is that on the basis of same evidence, as stated above, co-accused of the appellant namely Abdul Majeed has been acquitted by the learned trial Court but the present appellant has been convicted. On a Court question, learned Deputy Prosecutor General submits that no appeal challenging acquittal of Abdul Majeed has ever been filed. It is well settled law that no one can be punished on the basis of such type of evidence and if any .Doubt would arise, the benefit of doubt must be given to the accused as a matter of right and not as a matter of grace and in granting such benefit, single circumstance is sufficient. Reliance is placed on Muhammad Akram vs. The State (2009 SCM R 230) wherein it was held: "It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
' We find this case of insufficient evidence as the complainant himself assumed the role of Investigating Officer against whom personal animosity has come on record by the appellant as well as his co-accused Abdul Majeed in their statements recorded under Section 342, Cr.P.C.
Therefore, we hold that prosecution has failed to prove its case beyond reasonable doubt. We give benefit of doubt to the appellant. Resultant, the criminal appeal is allowed; the conviction and sentence of the appellant are set-aside and he is acquitted of the charge. The appellant is in jail; he be released forthwith, if not required in any other case.