SYED SHAHBAZ ALI RIZVI, J.--Through the instant criminal appeal, Muhammad Imran (appellant/convict) has assailed the judgment dated 31.01.2015 passed by learned Addl. Sessions Judge, Rawalpindi in case FIR No.574 dated 11.12.2013 offence under Section 9(c) of Control of Narcotic Substances Act, 1997, registered at Police Station Rata Amral, Rawalpindi whereby the appellant was convicted under Section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to rigorous imprisonment for six years with fine of Rs.30,000/- and in default thereof to further undergo simple imprisonment for six months. The benefit of Section 382-B of the Code of Criminal Procedure, 1898 was also extended to the appellant.
2. The prosecution story as per narration of complaint (Exh-PC) is that Muhammad Imran (appellant) during investigation of case FIR No.573 dated 11.12.2013, offence under Section 9(b) of the Control of Narcotic Substances Act, 1997, made a disclosure and got recovered 1145-grams heroin from the Bait hak situated in the upper storey of his house. Out of said 1145-grams heroin, 5- gram was separated for chemical analysis and both were rendered into separate parcels and taken into possession vide recovery memo Exh-PB.
3. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898, was submitted before learned trial court. Formal charge against the appellant under Section 9(c) of Control of Narcotic Substances Act, 1997, was framed on 11.01.2014 to which he pleaded not guilty and opted to face trial.
4. Muhammad Nawaz, SI (PW-4) is the investigation officer of the case whereas, Qamar Sultan, ASI (PW-3) is the witness of recovery of heroin allegedly recovered at the instance of the appellant whereas, rest of the witnesses are formal in nature.
5. Statement of appellant under Section 342 of the Code of Criminal Procedure, 1898 was recorded on 19.01.2015, wherein he refuted the allegations levelled against him and claimed innocence. While answering to a question that "why the instant case has been registered against you?" the appellant replied as under:-- "In the year 2007, in FIR No.621 dated 26-08-2007 was chalked out at Police Station Gunj Mandi Rawalpindi informing murder of my uncle namely Qayyum Khan by local police officials of the same police station, I used to pursue the said case against local police officials, due to this grudge, local police of P.S. Gunj Mandi registered so many false FIRs with identical allegation of contraband dealing, subsequently, the area was devolved in the jurisdiction of P.S. Rata Amral, thereafter, series of false FIRs against me was resumed by P.S. Rata Amra, instant case is piece and parcel of same maligning campaign of malicious prosecution, prior to that prosecution has not produced evidence in any of the cases mentioned in the Chalan, I am languishing in Jail in absence of any guilt merely due to grudge of FIR No.621 which was registered against local police official of P.,3 Gunj Mandi."
' In reply to another question that "Why the PWs have deposed against you?, the appellant replied as under: - "All PWs are police officials of P.S. Rata Amral and they have been previously posted at P.S. Ganj Mandi, due to grudge and malice with respect to FIR No.621/2007 which was instituted against murder of my uncle namely Qayyum Khan by the then police officials of P.S. Gunj Mandi."
' The appellant did not opt to appear as his own witness to make statement on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898, however, he produced Zar Khan (DW-1), Mehmood Khan (DW-2) and Muhammad Yasin (DW-3) in his defence.
6. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case; that the recovery of heroin is fake and planted upon the appellant due to previous litigation of the appellant with the police officials; that the impugned judgment is against law and facts of the case; that while passing the impugned judgment, the learned trial court has not given proper weight to the evidence produced by the appellant in his defence; that the prosecution witnesses being police official and subordinate to the complainant have deposed falsely at his instance; that though the report of Chemical Examiner is positive yet very meagre quantity was sent for chemical analysis which does not cater requirement of law and that the prosecution evidence is full of discrepancies and contradictions which make the case of prosecution doubtful and benefit of even a slightest doubt should be extended to the appellant. Finally craves for acquittal of the appellant by accepting the instant appeal.
7. Per contra, learned Deputy District Public Prosecutor opposes the appeal on the grounds that no mala fide on the part of the complainant or other witnesses for false implication of the appellant has been pointed out by the defence; that the prosecution story does not suffer from any discrepancy; that the impugned judgment has been passed by the learned trial court after satisfying itself qua the fact that the prosecution remained successful in proving. Its case against the appellant beyond any shadow of doubt; that any minor flaws in the statements of prosecution witnesses may occur with the passage of time on account of fleeting memory of human being and the same cannot be used as a tool to extend any benefit to the accused; that report of Chemical Examiner confirms that the substance recovered from the possession of the appellant was heroin which can be used to cause intoxication and that the conviction ordered and sentence passed are in accordance with the evidence produced by the prosecution.
8. We have heard learned counsel for the parties and perused the record with their able assistance.
9. We have observed that the report of Chemical Examiner (Exh-PE) though contains the opinion of the Chemical Examiner that the packet sent for chemical analysis in this case contains heroin which can be used to cause intoxication yet the said report does not reflect the detail of the tests conducted by the Chemical Examiner, the result of which led him to conclude that the sample parcel was containing heroin as is evident from the report and the relevant portion which reflects the detail of tests is not legible i.e. Conducted and required to identify the contraband material, the absence of which renders this piece of evidence doubtful and that has brought the edifice of prosecution case to earth. In this regard guidance can be sought from the esteemed judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Ikramullah and others v. The State (2015 SCM R 1002). Mubashar Hussain Shah 1511/HC (PW-1), who transmitted the sample parcel to the office of Chemical Examiner, during his cross-examination, has maintained that the case property .Was handed over to him at 07.00 p.m. On 14.12.2013 which gives rise to a question that if it is so then how the said parcel was received in the concerned office on the same day at or after 07.00 p.m. As said office does not remain open till such time. Muhammad Nawaz, SI (PW-4), the investigation officer of this case has admitted that the room from where the contraband material was recovered at the pointation of the present appellant was not locked when he reached there along with the police party and the appellant to effect the recovery and he has also candidly maintained as under:-- "...The said room was not in locked condition. There is a possibility to enter any body else in the said room.. .The Almirah was not in locked condition..."
' This reproduced part of the statement of Muhammad Nawaz, SI (PW-4) reveals that the place of recovery was not in exclusive possession of the appellant as the room was not locked and also the almirah from which the heroin was allegedly recovered at the pointation of the appellant was accessible for other dwellers of the abode which creates doubts about the veracity of the recovery of contraband material at the instance of the appellant. When these observations are considered in conjunction with the evidence furnished by witnesses appearing in defence of the appellant i.e. Zar Khan (DW-1), Mehmood Khan (DW-2) and Muhammad Yasin (DW-3), the prosecution case becomes doubtful while the responsibility of proving its case squarely lies upon the shoulders of the prosecution and weaknesses of defence cannot absolve the prosecution of its responsibility to prove the case. In view of above, this court is of the firm opinion that the prosecution remained fail to prove its case against the appellant beyond any shadow of reasonable doubt. It is by now well settled law that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas, the instant case is replete with circumstances which have created serious doubts about the prosecution story. In the case of Tariq Pervez v. The State (1995 SCM R 1345), the ' Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-- "5. ...The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
In Ayub Masih v. The State (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under:- "...The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule. Occupies a pivotal place in the Islamic Law and is enforced rigorously in view of The saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of Muhammad Akram v. The State (2009 SCM R 230), at page 236, observed as under:-- .13. ...It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. 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."
10. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of any reasonable doubt, therefore, we accept Criminal Appeal No.38 of 2015 filed by Muhammad Imran (appellant), set aside his conviction and sentence recorded by the learned trial court and acquit him of the charge levelled against him by extending him the benefit of doubt. He is in custody, be released forthwith if not required in any other case.