FAHIM AHMED SIDDIQUI, J.---The appellant, by filing instant appeal, impugns the judgment dated 20.12.2013, passed by the learned Additional Sessions Judge-II/Special Judge (Narcotics), Hyderabad, in Special Case No, 70/2010, whereby the appellant has been held guilty of the offence under Section 9 (c) of the Control of Narcotics Substance Act, 1997 and sentenced him to undergo penal servitude for a period of five years and six months and to pay a fine of Rs, 25,000/- and in default of payment of fine to undergo further simple imprisonment for five months and fifteen days.
2. The factual matrix of the case is that, the police party of PS Hali Road, Hyderabad, headed by SIP Gulsher Sario, was on routine patrolling in the area, when they reached at Maa Jee Hospital, they spotted a rickshaw coming from Latifabad; they motioned the rickshaw to stop; ASI Saifullah Gill identified the driver as Rajab Ali alias Babu son of Muhammad Ramzan Mallah (appellant), resident of Baban Shah Colony, Hyderabad; rickshaw driver, after leaving the rickshaw in front of Maa Jee Hospital, ran away in the adjoining street. ASI Saifullah and one PC ran after him and while running, a black colour packet was fallen down from the apparel of the accused who however succeeded in escaping., Both the policemen, returned back after picking the said packet, which was opened wherein double patty hashish (charas) was recovered. A similar packet was also found concealed in the spare wheel of rickshaw, which was taken into police custody from where also double patty of hashish was recovered. The recovered quantity of hashish was weighed and found 2 kg and 30 grams, from which a sample of 10 grams was separated for chemical analysis and the sample as well as case property were sealed on the spot. After returning at the police station, proper FIR was lodged against the appellant by complainant SI Gulsher Sario on behalf of the State.
3. After completing investigation, the police submitted a Final Report against the absconding accused (appellant) under Section 512, Cr.P.C. Meanwhile, the appellant succeeded in getting pre- arrest bail from the trial Court and joined trial proceedings. The charge was subsequently framed against him to which he pleaded not guilty and claimed trial.
4. To substantiate the charge, prosecution examined complainant SIP Gulsher Sario (PW-1), the witness of 'memo. or recovery' ASI Saifullah Gill (PW-2) and investigation officer Mushtaq Ahmed Almani (PW-3). The statement of accused (appellant) was recorded under Section 342, Cr.P.C. in which he denied all the allegations of prosecution and claimed that ASI Saifullah had enmity towards him.
5. The learned counsel for the appellant has assailed the impugned judgment from different corners, but mainly his point of disagreement rests on the animosity of ASI Saifullah Gill with the appellant. Moreover, he submits that rickshaw was neither made case property nor investigation officer could produce anything before the trial Court regarding the ownership of rickshaw. He has also pointed out certain discrepancies and contradictions in the prosecution evidence.
6. On the other hand, the learned APG supports the prosecution case. His contention is that the prosecution witnesses supported the case of prosecution and the case against the appellant is proved.
7. We have scanned the entire material with the able assistance, provided by the learned counsel for the appellant and learned A.P.G.
8. The prosecution case is that the accused (appellant) was seen by the star prosecution witness (ASI Saifullah) while he was driving a rickshaw and he not only identified him, but also chased him up to some distance, but the accused succeeded in escaping from the scene of offence while leaving narcotics behind him. It is worth mentioning that ASI Saifullah not only claimed to have identified the appellant by his name but by his parentage as well as residential address, but surprisingly the Final Report was submitted against the appellant in section 512, Cr.P.C. without describing any effort of arrest of the accused (appellant) which attitude on part of the police is quite strange and even is against the implied duties.
9. Be as it may, the complainant in his examination-in-chief identified the accused (appellant) present in the court as the same but in cross-examination, he admitted that that he did not know the accused prior to the incident and he did not see the accused sitting in the rickshaw and he had only seen him from his backside, while he was running. We are of the view that in such a situation identification by the complainant in the court is based on hearsay evidence and the same does not come under the definition of res-gestae also which requires direct evidence within meaning of Article 71 of the Qanun-e-Shahadat Order, 1984. The consequence of such evidence would be nothing but that such identification by the complainant is not reliable. The complainant also states in his examination-in-chief that only 10 grams of hashish was separated as 'sample' for sending to FSL for chemical analysis. Worth to add here that such sampling first requires recovery of narcotics from possession of the sent-up accused and only then a claim of conviction could be examined.
Reference may well be made to the case of Muhammad Noor and others v. The State 2010 SCM R 927 wherein it is held that:-- "The above section expressly cast a duty upon the Court to presume in a trial under the Act that the accused has committed the offence' under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such drugs.
Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. ..."
10.Keeping the said principle in mind, now will discuss the evidence of ASI Saifullah, who is not only the marginal witness of the Memo of Recovery but identification of the appellant is wholly claimed under him. It was he against whom the appellant came with specific plea of his false involvement therefore, evidence of this witness was always requiring to be examined with a little more care and caution. The perusal of 'the evidence of this witness shows that he claimed in his examination in chief that he identified the accused (appellant) while he was sitting in the rickshaw and he had also chased him with PC Mohammad Sabir. In cross-examination, ASI Saifullah admitted that he knows Allah Bux, who is running a brothel house and that the said Allah Bux had lodged FIR against the appellant and that after lodging of FIR by Allah Bux against the appellant, the wife of appellant lodged an FIR against him (SIP Saifullah) and Allah Bux. Such admissions of this witness prima facie were sufficient to conclude that he (the witness) had a motive reason to involve the appellant. Here, we would add that question of one falling within meaning of interested witness or otherwise would not rest on the relationship or friendship but would rest whether such a witness had a motive/reason to falsely involve one or otherwise?. Reference may be made to the case of Zulfiquar Ahmed and another v. State 2011 SCM R 492 wherein it is held as:-- "...It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of 'interested witness' was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCM R 1) and it was held that 'friendship or relationship with the deceased wilt not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused."
11. Further, there can be no denial to the legally established principle of law that evidence of an interested witness shall always be required to be examined with a little more caution and care. This witness (ASI Saifullah) during his cross-examination states that the packet, fallen from the apparel of the accused, was first collected by SIP Gulsher but SIP Gulsher in his evidence never claimed to have chased the accused hence question of picking such fallen packet does not arise at all. Thus, prima facie such claim of the witness ASI Saifullah was never supported by complainant nor even was ever included into prosecution story. Since, it already stood evident on face of the record that this witness has reason/motive to falsely name the appellant therefore, if defence plea is examined, particularly in view of the guidelines, provided for examining the defence plea by putting it injuxta-position in the case of Haji Inayat Ali v. Shahzada (2008 SCM R 1565), seems coherent and enunciated. It was observed in the case of Haji Inayat Ali as:-- "It was held by this Court in the case of Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 that all the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. is the plea / version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case. If the answer be in affirmative, then Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonable be true, even then the Court must accept his plea and acquit or convict him accordingly."
12. Further, there has been a specific allegation of animosity and ill-will is alleged by the accused against the police (PW ASI Saifullah) who also admitted to have been prosecuted on complaint of wife of the appellant, therefore, it was obligatory upon such a witness to have associated private witnesses for alleged recovery particularly when the alleged place of incident is thickly populated area. The admitted enmity/ annoyance between appellant and star PW ASI Saifullah; safe escaped of appellant from scene; falling of packet from apparel of appellant and recovery of another packet, concealed in spare wheel of rickshaw, are the circumstances which bring serious clouds over testimony of such .interested witness and makes recovery doubtful. In this respect, we would like to take reliance from the judgment of a Division Bench of this Court reported as Abdul Majeed v.
The State (2014 YLR 2050), wherein it is held as:-- "In the instant case, specific animosity and ill-will has been alleged against the police officials, therefore, it was incumbent upon the prosecution to prove its case by examining independent persons of the locality but neither the police examined any person of the locality nor accompanied any private person to witness the personal search and recovery of contraband narcotics"
12(sic) Further, the perusal of the record shows that the recovered quantity of hashish is shown as 2 kg and 30 grams, but only a small sample of the same was sent for chemical analysis. Prima facie, in the instant case, the process of sampling was not in accordance with law and the process, so insisted for sampling, in the case of Ameer Zeb v. The State PLD 2012 SC 380, wherein it is held as:-- "For the purposes of clarity and removal of confusion it is declared that where any narcotic substance is allegedly recovered while contained in different packets, wrappers or containers of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotic substance is to be considered against the accused person from which a sample was taken and tested with a positive result.
13. We would add that prosecution must always follow every step, the purpose whereof, is for clarity and removal of confusion because Criminal Administration of Justice always demands 'establishing of charge beyond any shadow of doubts'. The deliberation in using the phrase 'shadow of doubts' instead of 'doubt' should also be given due weight. If such illegality or least irregularity if is viewed in back-ground of admitted annoyance between PW ASI Saifullah and appellant, then it would not be safe to base conviction on evidence of such a witness particularly in a case where the accused was not physically arrested with recovered articles but is alleged to have escaped leaving the narcotics to be used against him. The overall conduct of the star-witness appears to be not consistent and probable hence no conviction could legally sustain on such testimony. Reference may be made to the case of Lal Khan v. The State 2006 SCM R 1846 wherein it is held as:-- ... The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not.
13(sic) Be as it may, we add that in such a situation it would be the evidence of the Investigating Officer because it is he (Investigating Officer) who is required to collect material or least verify the claimed manner of incident. The Investigation Officer SIO Mushtaque Ahmed in his cross- examination, admits that he has not tried to examine any private person of the locality at the time of the site inspection; did not prepare the Memo. of Site Inspection; did not try to locate the owner of rickshaw nor the said rickshaw was produced in court as case property. The incident was allegedly took place at 9 PM and the place of incident and recovery is situated within a populated area, but no independent witness has been associated. The evidence of the Investigating Officer is silent which could justify failure of the complainant party in not following the procedure and measures which were necessary for clarity; removal of confusion as well for establishing recovery of contraband articles. Further, it is also a matter of record that there has been delay of five days in sending the allegedly recovered properties (samples) to office of Chemical Examiner and prosecution brought nothing on record so as to ensure safe custody of such property during intervening period. Therefore, it would be quite safe to conclude that claimed manner of recovery of narcotics cannot be believed safely for convicting the appellant. Not only this, but it is also a matter of record that a part of recovery has been taken place from a rickshaw, allegedly driven by the appellant but the prosecution neither produce the said rickshaw before the trial Court as case property nor a certain the ownership of the said rickshaw. Although, it is mentioned by the prosecution witnesses that the rickshaw was taken to the police station, but nothing on the record was brought by the prosecution about the subsequent disposal of the said rickshaw during the course of investigation or afterward. We are of the view that this aspect of the case also casts thick clouds of doubt on the entire prosecution case. It is settled law that even a single doubt in the prosecution story is disastrous for the prosecution case and its benefit must go to the accused. In this respect, we would like to take reliance from a case of Apex Court reported as Tariq Pervez v.
The State (1995 SCM R 1345) wherein it is held as:-- "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 the present case, there are series of circumstances creating doubts, and under the settled principle of criminal justice, the benefit of the doubt goes to the present appellant.
14. The final and eventual outcome of the entire discussion is that we are unable to agree with the findings and conclusions reached at by the learned trial Court and the same are unsustainable which vitiate the impugned judgment. We, therefore, allow the instant appeal. Resultantly, the judgment of the learned trial Court is set aside, and the appellant is acquitted of the offences for which he has been charged vide our short order dated 07-08-2017 and these are the reasons for the same.