' RASHEED AHMED SOOMRO, J.---This criminal appeal has been directed against the judgment dated 30.06.2011, passed by the learned Special Judge CNS, Larkana, whereby the appellant was convicted for offences punishable under section 9(b) of Control of Narcotic Substances Act, 1997, and sentenced to suffer R.I. For one year and to pay fine of Rs,20,000/- or in default thereof to suffer S.I. For three months more with benefit of section 382-B, Cr.P.C.
2. The facts necessary for the disposal of the case are that on 12.01.2010 a Police Party headed by SIP Saifullah during patrolling noticed a person at about 2.00 p.m. Near Koban No,11, who on seeing them tried to slip away, who was apprehended and on inquiry, disclosed his name as Muhammad Panah alias Jhangi. On his personal search one shopping bag containing charas was recovered from the side pocket of his shirt. The same was weighed and became 1100 grams, out of which 400 grams were separated and sealed as sample, whereas remaining charas was sealed separately.
The accused was arrested under Mashirnama attested by ASI Muhammad Rafique and PC Muhammad Sajan and he was then taken to police station, where case was registered against him.
3. The appellant denied the charge and claimed his trial.
4. The prosecution examined three witnesses, i,e. PW/Mashir ASI Muhammad Rafique at Ex.6, who produced mashirnama of arrest/recovery of Ex.6-A, PW-2 SIP Saifullah at Ex.7, who produced roznamcha entry at Ex.7-A and FIR at Ex.7-B, and P.W-3/I.O. Of the case Inspector Khan Muhammad at Ex.8, who produced report of Chemical Examiner of Ex.8-A.
5. In statement under section 342, Cr.P.C., appellant denied the allegations by pleading his innocence. He, neither examined himself under section 340(2), Cr.P.C. On oath, nor examined anybody else in support of his defence. On conclusion of the trial the appellant was convicted and sentenced as stated above.
6. We have heard learned counsel for the appellant and learned A.P.G. And have gone through the entire evidence and the record.
7. Learned counsel for the appellant contended that, the trial Court has failed to appreciate evidence, brought on record within the scales of criminal administration of justice; that admittedly the place of incident was situated at thickly populated area and complainant admitted in his cross-examination that vehicles were passing during the proceedings, even then nobody from the scene of incident was examined by the prosecution to prove the recovery; that the samples were received by the Chemical Laboratory after eight days of its recovery as such it .Is shrouded in mystery, therefore, tampering with the same may not be brushed aside; that there are many contradictions in depositions of the prosecution witnesses which create doubt in their truthfulness and that the appellant was falsely implicated by the police. Learned counsel further submitted that the prosecution has miserably failed to establish charge against the appellant and the appellant has succeeded to create doubt in the prosecution case, thus its benefit to be extended in favour of appellant.
8. On the other hand learned A.P.G. Submitted that the impugned judgment is well in law and well- reasoned; he supported the impugned judgment.
9. We, with the assistance of learned counsel for the parties have gone through the evidence adduced at the trial and scrutinized the record. Admittedly, both the witnesses are police officials, however they cannot be termed as unreliable witnesses, but when it has come on record that the place of incident was busy road and it has also come .On record through evidence of complainant SIP Saifullah that vehicles were passing through such road, in spite of that they had not taken efforts to join independent witnesses, therefore, the manner of recovery as narrated through evidence recorded by police officials has lost its sanctity. Furthermore, as per examination-in-chief of I.O. Inspector Khan Muhammad the recovered charas was in shape of two pieces, however, as per evidence of complainant there was one piece from which 400 grams were separated as sample.
10. Record reveals that alleged recovery was effected on 12.01.2010 and it was sent to Laboratory through H.C. Ali Muhammad, which received by the Chemical Laboratory on 20.01.2010 with delay of about eight days and such delay has not been explained. It has also not been brought on record that it was in safe custody of the Investigating officer of the case and there was no chance of tampering and the prosecution has also failed to examine H.C. Ali Muhammad, who had taken the sample to the Chemical Examiner, so that he could have been cross-examined on this point as to in whose custody the sealed parcel of sample of charas was lying during the intervening period of eight days. As per Rule 4(2) of the Control of Narcotic Substances (Government Analysis) Rules, 2001, this exercise was required to be completed within seventy-two hours of the recovery, and for this purpose, even there is no plausible explanation brought on record by the prosecution as to why such inordinate delay was caused in the completion of this exercise by the Investigating Officer.
11. It is not out of context to mention here that for extending benefit of doubt, it is not necessary that there should be many circumstances creating doubt and if there is single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then he will be entitled to its benefit, not as a matter of grace and concession but as a matter of right. Reference is made to the case of Tariq Pervez v. The State (1995 SCM R 1345).
12. For the foregoing reasons, the conviction recorded by the learned trial Court is not sustainable.
Consequently, the appeal was allowed and the appellant was acquitted by short order dated 28.07.2016 and these are the reasons for the above said order.