' SHEHRAM SARWAR CH. J.---Through this appeal, the appellant Abrar Hussain has challenged his conviction and sentence awarded to him by the learned Additional Sessions Judge, Taunsa vide judgment dated 18.5.2009 in case FIR No,106 dated 11.4.2008, under section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station Taunsa, District D.G. Khan, whereby he was convicted and sentenced to 04-years and 06-months' R.I. And a fine of Rs,20,000/- or in default of payment of fine to further undergo 05-months' S.I. He was however given the benefit of section 382-B, of The Code of Criminal Procedure, 1898.
2. The prosecution version as contained in the Crime Report (Ex.PA/1), lodged on the complaint of Imdad Hussain, Sub-Inspector (PW.2) is that on 11.4.2008 at about 08.55 PM, when he along with other police officials was present at Bahai More for patrolling received a spy information that one Abrar Hussain who deals in narcotics is going to Sokar via bank of Chashma right canal along with huge quantity of narcotics, on the basis of this information a raid was conducted and the present appellant was apprehended. On his personal search, charas weighing two kilograms was recovered. Out of which 300-grams from each slab was separated for chemical analysis and remaining charas-P-1 was sealed and taken into possession vide memo (Ex.PB).
3. After observing all the codal and legal formalities report under section 173, of The Code of Criminal Procedure, 1898 was submitted in the learned trial Court. The learned trial Court, after taking cognizance of the case framed the charge to which appellant pleaded not guilty and claimed trial.
4. The prosecution has produced as many as three witnesses in support of its case. Imdad Hussain S.I./complainant/Investigating Officer appeared as P.W.2 and supported the prosecution version.
Mujahid Hussain 181/C, who is the witness of recovery, appeared as P.W.3. The remaining witness is formal in nature. The accused got recorded his statement under section,42 of The Code of Criminal Procedure, 1898. He though initially opted to produce evidence in defense but later on did not produce any evidence in defense. The appellant also did not make any statement on oath under section 340(2) of The Code of Criminal Procedure, 1898. In reply to the question "why this case was registered against you and why the PWs made statements to involve you" he deposed as under:- "a quarrel took place between me and a relative of Sardar Muhammad Akram Khan Malghani one day prior to registration of this case. I was in police lock up due to that quarrel. On 11.4.2008 police recovered a huge quantity of charas. Hot words were exchanged between me and police.
I was already in police lockup, therefore, the police with connivance of aforesaid Akram Khan and to oblige him involved in this false case. I am innocent and nothing was recovered from me.
There are many contradictions in the statements of PWs which declared me innocent."
5. After conclusion of the trial, the learned trial Court convicted the appellant vide judgment dated 18.05.2009 as described in the opening paragraph of the instant judgment, hence this appeal.
6. Learned counsel for the appellant has argued that, the prosecution's case is highly doubtful, the statements of PWs are full of contradictions and discrepancies. He has further argued that the impugned judgment passed by the learned trial Court is based on misreading and non-reading of evidence as it has not appreciated the material contradictions and has convicted the appellant on the basis of surmises and conjectures. He submitted that no private person has been associated to witness the recovery and as such recovery is false.' He further submitted that sufficient material is available on the record to justify that the appellant is innocent and his appeal is liable to be accepted.
7. On the other hand, learned Deputy Prosecutor General fully supported the impugned judgment, passed by the learned trial Court and opposed the grounds taken by the learned counsel for the appellant.
8. Arguments heard. Record perused.
9. After hearing the learned counsel for the appellant as well as learned Deputy Prosecutor General and minutely going through the record, it is observed that there are material contradictions in the evidence available on the record. Imdad Hussain S.I./complainant (P.W.2) during cross- examination submitted that he received advance information about the accused and they remained standing at Bahai More for half an hour before reaching the accused. On the other hand, Mujahid Hussain 181/C (P.W.3) deposed in cross-examination that Investigating Officer received information through telephone about Abrar Hussain appellant. After receiving the information, they approached the accused/appellant within 10/15 minutes. Complainant/Investigating Officer of the case is saying that he received information in advance and standing there for 30-minutes before reaching the accused/appellant while recovery witness is saying that Investigating Officer received information on telephone and they approached the accused/appellant within 10/15 minutes.
10. We have observed that the case property was not produced by the police before the Court, which shows that the police had some malice towards the appellant qua the recovery of contraband as it is the prime duty of the police to produce the same before the court in order to bring home guilt of the accused. The prosecution even failed to bring on record any valid justification to this effect. Non-production of case property creates serious dent in the prosecution case. Reference in this respect can be made to case titled as "Riasat Ali v. State" (2004 PCr.LJ 361) wherein it is held that:- "unless the recovered narcotics were produced in Court it could not be held that the appellant was carrying these on his person and these were recovered from him".
' Guidance in this respect can also be sought from cases titled as "Amjad Ali v. The State" (2012 SCM R 577) and "Agha Qais v. The State" (2009 PCr.LJ 1334). Therefore, it is very much clear that non- production of the case property in the Court is fatal to the prosecution's case and destroys its very foundation. Furthermore, there is delay of more than one month in sending the sample to the Chemical Examiner which also cast serious doubts with regard to the occurrence of this case.
11. It is well settled law that no one can be punished on the basis of shaken evidence and if any doubt would arise, the benefit of the same must be given to the accused as a matter of right and not as a grace and in granting such benefit, single infirmity is sufficient.
12. The up-shot of the above discussion is that the prosecution has failed to prove the charge against the accused/appellant through leading, tangible and confidence inspiring evidence.
Hence, keeping in view the discrepancies and contradictions in the statements of the PWs, benefit of doubt cannot be denied to the appellant in the present circumstances, therefore, this appeal is accepted and the conviction recorded and the sentence awarded to the appellant Abrar Hussain by the learned Additional Sessions Judge, Taunsa, vide judgment dated 18.05.2009, is set aside and he is acquitted of the charge. The appellant is already on bail. His surety stands discharged from his liability.