AMER RAZA NAQVI, J.---On 18.02.2015, through a short order this appeal was allowed and the judgment dated 30.06.2009, whereby appellant was convicted was set aside and appellant was acquitted of the charge; following are the reasons for said order.
2. Brief facts of the case are that an FIR was registered at Police Station Darn, Larkana, bearing No,120/2006, under section 9(b) of Control of Narcotic Substances Act, 1997. The appellant was challaned in such FIR and he was tried by Special Judge for CNS Larkana, and conviction was awarded; he was sentenced to suffer imprisonment for three years and to pay fine of Rs,20,000, and in the default of payment of fine he had to undergo simple imprisonment for three months more. The punishment was awarded under section 9(b) of Control of Narcotic Substances Act, 1997. Such judgment was challenged in the present appeal.
3. The charge, which was framed against the appellant, was to the effect that on 10.12.2006, at about 1400 hours one kilogram charas was recovered from the possession of the appellant when police raided his Otaq situated in Khalique Colony, Larkana.
4. Learned counsel for the appellant submitted that another case under section 13(d) of Arms Ordinance was also registered against the appellant, as one .30-bore pistol and 30 bullets were also allegedly recovered from the appellant. He submitted that appellant has been acquitted by the trial Court, where he was tried under section 13(d) of Arms Ordinance. Learned counsel further submitted that on the same set of evidence the present FIR was registered separately. He further submitted that there are material contradictions in the two prosecution stories; one presented before the court during trial in the case under Arms Ordinance and the other produced before trial Court who has convicted the appellant through impugned judgment. Per learned counsel this fact itself creates doubts about genuineness of the present case. He further submitted that with regard to the recovery of articles also there are number of contradictions; there are different versions in respect of pieces of charas allegedly recovered from the appellant. He submitted that there is no private mashir in the case, although it was admitted by the witnesses that the place of incident is thickly populated area and there is also a police chowki near the place of incident.
5. The learned D.P.G. On the other hand has submitted that section 103, Cr.P.C. Is not applicable in this case, being the case registered under Control of Narcotic Substances Act, 1997. He submitted that both the prosecution witnesses examined in the case supported the case of the prosecution; therefore, appellant was rightly convicted by the trial Court.
6. We have heard both the learned counsel and examined the record with their assistance. We have noted that P.W.2. Muhammad Juman was Recovery Officer, Complainant and Investigating Officer of the case at the same time P.W.1 has stated in his statement while he was being cross- examined by the defence counsel that his statement was recorded by SHO Sardar Khan Chandio; he however denied the suggestion that the appellant was arrested by SHO Sardar Khan Chandio from Bakrani but stop and took out Rs,20,000 from the appellant. P.W.2, complainant/I.O. Of the case has deposed that after investigation he handed over the papers to SHO for submission of challan, it therefore, appears that I.O. Did not himself submit the challan before the trial Court.
7. There are different versions with regard to the pieces of charas allegedly recovered. In the report of chemical examiner it is mentioned that parcel contained three black brown pieces kept in plastic bag. The statement of PW1 was recorded on two different dates. In its statement, which was recorded on 7th October, 2008, his version was that the recovered charas was in one piece and 250 grams was separated for dispatching the same to the chemical examiner and thus after such separation there were two packets, otherwise he had stated that police party found one person sitting in the Otaq and one packet (box) was lying in front of him. On 12.3.2009, he stated that charas was in three pieces 'while seeing the property in Court PW-1 stated that at Article-A his signatures are there but on Article-B there are no signatures of such witness. On seeing Article-A he also stated that there are three pieces of charas lying therein. About the process of sending the articles recovered to the chemical examiner also his statement is not consistent and confidence inspiring. In the examination-inchief of P.W.2 it is mentioned that 250 grams was separated from one packet of charas, to be sent to chemical examiner. In cross-examination however he stated that it was in shape of one piece. We have also noted that date of incident in this case is 10.12.2006, whereas the sample of property was sent to the chemical examiner on 21.12.2006, and according to chemical examiner's report one sealed parcel was received containing three black brown pieces.
8. Learned counsel for appellant has filed the evidence of trial of the case under Arms Ordinance and pointed out various contradictions. He has submitted that in such case Investigating Officer and the complainant in the present case, who was also complainant in the case under Arms Ordinance had deposed that he had not sealed the property nor it was in sealed condition when the same was produced before the trial Court in that case. He has also pointed out portion of examination-inchief in such case, in which complainant had stated that he had handed over the case to Investigation Branch for investigation. The prosecution is not clear with regard to the process of investigation in the present case and it appears that complainant himself was Investigating Officer. The learned D.P.G. Has correctly stated that separate trials are to be decided on their own merits although in respect of the same incident, but in the present case itself there are contradictions and inconsistencies, which are material and learned counsel for appellant appears to be correct that the evidence is not confidence inspiring.
9. In 2013 PCr.LJ 1185, it was held that when in respect. Of the same incident there are two conflicting opinions of two courts in respect of same document, a doubt is created.
10. It is settled law that slightest doubt in the prosecution case is sufficient to entitle the accused to be acquitted of the charge. We have further found that even if the trial and judgment in the other case is completely ignored even then the case of the prosecution in the present case is doubtful.
We, therefore, came to the conclusion that appellant is entitled to 'the benefit of doubt and as such this appeal was allowed and he was acquitted of the charge vide short order 18.02.2015; above are reasons for allowing ID the appeal.