ABDUL MAALIK GADDI, J.---We intend to decide the above captioned appeals through this common judgment having similar facts. Through thesecriminal appeals, judgment dated 16.9.2013, passed by learned Special Judge for C.N.S., Jacobabad in Special Narcotics Case No.02/2012, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, has ben challenged by the appellants, whereby the appellants have been convicted and sentenced to suffer imprisonment for life With fine of Rs.50,000/- each and in case of default of payment of fine it was ordered that they shall undergo simple imprisonment for 06 months more. Benefit of Section 382-B, Cr.P.C. Was also awarded to them.
2. The relevant facts of the above case are that on 03.1.2012 at 1400 hours, complainant SIP Manzoor Ahmed Khoso alongwith his subordinate staff, namely, AS! Nabi Dad Rind, HC Rajab Ali, HC Lal Muhammad, HC Aijaz Ali, HC Akbar Ali, PC Muhammad Jam, PC Gulsher Ahmed, PC Manab Ali left their CIA Office, Jacobabad under roznamcha entry No.08, at 1400 hours, for patrolling in mobile vehicle, when at 1430 hours they reached near Jamali Wah (Canal) near bypa'ss, they started checking of vehicles, then at 1500 hours they saw a Mehran car of silver colour bearing No.AEF-293 which was stopped on the signal of the complainant party wherein two persons were found sitting, one on driving seat and other on front seat to whom, they suspected and on enquiry the person sitting on driving seat disclosed his name as Abdul Hameed alias Majeed s/o Moula Bux Zaheri Brohi and the person sitting on front seat disclosed his name Khan Bux son of Kareem Bux by caste Bugti, in the meantime one other 2-Dcar came from the direction of Jhatpat, wherein they saw five persons were sitting, who on seeing Police party, reversed the car and went back towards Jhatpat side. Thereafter, the complainant party saw one gunny plastic bag (bachka) lying at the mid of rear seat, which was opened by the complainant party, wherein they found 37 packets, which they have opened and found each packet containing two slabs of charas, which was got weighed through ASI Nabi Dad Rind and each packet weighed to be 1000/1000 grams. The complainant party then separated 200 grams from each slab and sealed for chemical examination, so also, the remaining charas was also sealed in the said gunny plastic bag (Bachka). The accused further disclosed that in the 2-D car their friend, namely, Agha Muhammad Pathan, Asghar, Bakhtiar and two unknown persons were following them and they further disclosed that they brought the charas for selling the same in Shikarpur. The accused failed to produce the documents of the above said car, as such, both the accused were arrested under section 9(c) CNS Act and on personal search the complainant party recovered two currency notes of Rs.500/- from the side pocket of accused Abdul Hameed alias Majeed and five currency notes of Rs.100/- from the side pocket of accused Khan Bux. Thereafter, the accused and property were brought at Police Station Saddar Jacobabad where the complainant lodged FIR.
3. A formal charge against the appellants was framed at Ex.2, to which they pleaded 'not guilty' and claimed their trial vide pleas Ex.02-A and 02-B and in order to prove the charge against the present accused, the prosecution examined mashir PC Nabi Dad at Ex.06, he produced mashirnama of arrest and recovery at Ex.06-A, while evidence of co-mashir HCRajib Ali was given up vide statement at Ex.07, complainant Inspector Manzoor Ahmed at Ex.08, he produced FIR, roznamcha entries, letter No,08 dated 03.01.2012 at Ex.08-A to 08-D respectively, 10/SIP Nisar Ahmed Farooqui at Ex.09, he produced letter No.LB 54 dated 05.01.2013 issued by SSP Jacobabad to Chemical Examiner at Ex.09-A, chemical report at Ex.09-B, entry No.51 dated 03.01.2012 at Ex.09-C and then prosecution closed its side vide statement at Ex.10.
4. The statements of accused/ appellants were recorded at Ex.11 and Ex.12, wherein they denied the prosecution allegations by pleading innocence. Accused Abdul Hameed produced application dated 26.4.2012 submitted by him before the then Sessions Judge, Jacobabad with registration documents of vehicle at Ex.11-A and enquiry report on his application made by SSP Jacobabad vide letter No.1530 dated 12.7.2012 alongh his statement at Ex.11-B. Accused Abdul Hameed alias Majeed also examined himself on oath under section 340(2), Cr.P.C. At Ex.13 and in his defence he examined Baaz Khan at Ex.14 and then his counsel vide statement at Ex.15 closed his side.
5. It is argued by the learned Counsel for the appellants that the prosecution has miserably failed to prove accusation against the accused persons and the evidence led by the prosecution is tainted and it is settled principle of law that no conviction can be awarded on the basis of tainted piece of evidence and the accused are entitled for their acquittal even on the basis of slightest doubt arising out of prosecution case. During the course of arguments, they have drawn our attention upon the contents of information report, mashirnama of arrest and recovery and so also chemicalexaminer's report. It is agitated that as per contents of information report 37 packets of contraband charas were allegedly recovered. Each packet contains 02 slabs weighing 1000 grams, total weight of 37 packets would be 37 kilograms and from each slab, 200 grams were taken as sample and separately sealed for chemical analysis. According to the Counsel for the appellants it is suffice to say that as per prosecution case each sample parcel contains 02 pieces of charas, each piece weighing 200 grams. The net weight of each parcel would be 400 grams. The learned Counsel attempted upon the genuineness of chemical examiner's report and submit that the parcel samples prepared at the spot and received with Chemical Examiner are not in conformity as each sample parcel received with Chemical Examiner slab was of 200 grams only as per Chemical Examiner's report which creates serious doubt in the prosecution case as such they have prayed for acquittal of the appellants on this ground and also submit that false implication of the appellants, in this case which is only based on the evidence of police officials, which too is contradictory, cannot be relied upon.
6. Learned Assistant Prosecutor General though tried to support the judgment impugned but frankly conceded that the parcel samples prepared at the spot as per contents of information report and mashirnama of seizure are not in conformity with the parcel sample received with Chemical Examiner's laboratory on weight.
7. We have heard the learned Counsel for the appellants, learned Assistant Prosecutor General on behalf of State and perused the evidence and documents on record.
8. As per contents of informationreport and memo of arrest and recovery it reveals that 37 packets of contraband charas were allegedly recovered from appellants. Each packet contains 02 slabs, weighing 1000 grams, total weight of 37 kilograms and from each slab, 200 grams charas were taken as sample and separately sealed for chemical analysis. It is suffice to say that as per prosecution case sample parcel contains 02 pieces of charas, each piece weighing 200 grams, total weight would be 400 grams. The total number of sample parcel are 37 but the samples received with Chemical Examiner are though 37 in number but each contains pieea net weight 200 grams which apparently are not in conformity with the weight as enshrined in the information report and memo of seizure. This discrepancy in evidence is enough for extending benefit of doubt to the accused/appellants.
9. We have also noted that in this case complainant has failed to associate private person to act as mashir of arrest and recovery although there were some houses near the place of recovery and arrest, which is admitted by PW mashir ASI Nabi Dad in his deposition. 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. Besides complainant SIP Manzoor Ahmed Khoso in his deposition has stated that ASI Nabi Dad was deputed by him to get weighed the charas from scale available with push part owner standing at the distance of 15 paces, but the complainant has failed to mention his name or particulars or associate him as mashir and I.0 has also failed to examine said independent person or record his statement to know the truth. PW mashir ASI Nabi Dad in his cross-examination says that the same cart pusher of the purchasing of old scrapes (Teen Daba) was residing near the place of incident, yet he was notexamined by the I.O. No doubt the evidence of police official is as good as other witnesses but in the given circumstances of the present case when the availability of private persons are not denied from the place of incident and same withheld then it is presumed that the party has some sinister motive behind it in not producing the said evidence on this point. We are supported with the case of Iltaf Hussain v. The State, reported as 1996 SCMR 167 and case of Ghous Bux v. The State, reported as PLD 2004 Karachi 201 and the case of Attaullah alias Qasim v. The State, reported as PLD 2006 Karachi 206.
10. In case of Ghous Bux v. The State (supra), it has been observed as under:-- "10. It is well-settled principle of law that if a best piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some sinister motives behind it in not producing the said evidenced. Even otherwise, a presumption under illustration (g) to Article 129 of Qanun-e-Shahadat Order can fairly be drawn in the matter.
11. In the present case, best pieceof evidence in the shape of P.W Muhammad Akram was available with the prosecution, but they did not examine him as such the prosecution had some sinister motive behind it in withholding thebest piece of evidence.Furthermore, a presumption under illustration (g) to Article 129 of Qanun-e-Shahadat Order can be raised that had the P.W Muhammad Akram been examinedin the case he would have not supported the prosecution case."
11. In the instant case, best, independent and natural piece of evidence in shape of cart pusher of the purchasing of old scraps (Teen Daba) was available, charas was weighed from his scale available to him, who was also residing near the place of incident, yet he was not examined by the prosecution. No reason has been assigned for non-examination of such important and best piece of evidence, which creates reasonable doubt in the prosecution case and it leads to the adverse inference to be drawn against the prosecution, meaning thereby if it was examined, it would have been unfavourable to the prosecution.
12. We have also perused the evidence of complainant Inspector Manzoor Ahmed and ASI Nabi Dad and found that the evidence of these two prosecution witnesses are contradicting on material points of the case. The complainant says that the bachka containing charas was lying on the rear seat of the car and whereas P.W/mashir ASI Nabi Dad says that the same bachka was lying at Paidan (footing place of back seat of the car). The complainant SIP Manzoor Ahmed in his examination in chief says that 37 packets were bearing black and gold packing covers and whereas ASI Nabi Dad says that 37 packets/slabs of charas were wrapped in silver and black coloured plastic packing.
13. Since there are many discrepancies creating doubt in the case of prosecution as highlighted above, in such circumstances its benefit must go in favour of the appellants. In this connection we are fortified with the case of Tariq Pervaiz v. The State reported as 1995 SCMR 1345, in this case law it has been observed as under : "For giving benefit of doubt to anaccused it is not necessary thatthere should be manycircumstances creating doubts---If a single circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
14. After considering the material available on record, we are of the considered view that prosecution has failed to prove the case against the appellants beyond any reasonable doubt, therefore, the appellants are entitled to the benefit of doubt which was accordingly given to them at the time of passing short order. Both appeals were allowed and impugned judgment of trial Court was set aside, resultantly appellants were acquitted from charge.
15. Above are the reasons of our short order dated 26.11.2014.