FAHIM AHMED SIDDIQUI, J.---This appeal has been filed by appellant Sarwar alias Ghulam Sarwar son of Sono Khan against the judgment and order dated 10.08.2004, passed by the learned Special Judge (Narcotics), Dadu, whereby the appellant has been held guilty of the offence under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to undergo imprisonment for a period of 04 years and to pay a fine of Rs.20,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months.
2. The facts as depicted in FIR are that SIP Muhammad Yaqoob Buriro (PW-2), who was SHO of PS Thariri Mohabbat, left the police station in an official vehicle along with his subordinate staff on 28.01.2003 at 17:10 hours after placing entry No.12 in daily-diary and proceeded towards Radhan Station. He picked from Police Post Radhan ASI Buxial Khan Mallah (PW-1) and his subordinate staff for an episode of controlling narcotics on a spy information. They reached the reported place at 17:45 hours i.e. link road leading from Radhan to Shah Panjo near Pir Muzaffar, where they saw a person under Khabber Tree with a plastic bag in his hand. The said person ran towards western side, but police party by chasing apprehended him. The police took possession of the plastic bag and found within it 18 pieces of hashish (charas) in different sizes. The arrested person disclosed his name as Sarwar, son of Sono Khan Machi (Appellant) resident of Kotai Machi, Mehar. On his personal search, police also recovered Rs.400 in shape of different denomination notes. The police weighed the recovered hashish (charas), which was found 1050 grams from which 10 grams was separated for chemical analysis. They formally arrested the accused and prepared such Memo of Arrest and Recovery (Ex.4-A) and brought him back to the police station with recovered narcotics where FIR No. 14/2003 (Ex.6) was lodged by the complainant on behalf of the state.
3. The prosecution produced two. witnesses; both of them are police officials i.e. complainant SIP Muhammad Yakoob Buriro (PW-2), who is also Investigating Officer and ASI Buxial Khan Mallah (PW-1). The appellant also recorded his statements under section 342 of the Criminal Procedure Code but did not produce any defence witnesses. On the basis of the evidence so recorded, the learned trial Court convicted the accused as mentioned above by finding him guilty of the offence.
4. The learned counsel for the appellant stated that in the instant case, the complainant and Investigating Officer are one and the same person as such investigation is biased and not proper.
According to him in the instant case, the evidence against the appellant is insufficient and not warranted for conviction. He submitted that the appellant is not involved in the instant case and the recovery is foisted on him. He pointed out some of the contradictions in the statements of the prosecution witnesses.
5. The learned D.D.P.P. supported the conviction and sentence by submitting that the trial Court has already taken a lenient view. According to him, as the appellants became absconders as such is not entitled to any relief.
6. We have considered the arguments rendered by learned counsel for the parties and have gone through the material available on the record and the evidence adduced by the prosecution.
Admittedly, SIP Muhammad Yakoob Buriro (PW-2) received spy information, after that he planned to proceed the reported place for the arrest of the appellant. It is mentioned in the FIR that he left the police station after placing entry No. 12 on 28.01.2003 in the daily diary of the police station and yet such document has not been produced before the trial Court. The said daily diary's entry is an important piece of evidence, which shows the movement of police party before arresting the accused. Although, in his deposition, the complainant stated during cross-examination that he could produce such entry of daily diary but the prosecution did not take the pain to produce the extract of the entry No. 12 of 28.01.2003 as such it has cut the root of the entire prosecution case.
7. We have also examined the evidence of complainant who has admitted in cross-examination that only a sample of 10 grams of hashish (charas) was sent to the chemical examiner. The complainant in his cross-examination also said that he did not know when the sample was sent to the chemical examiner as he was transferred from that police station Thariri Mohabbat. However, as per report of the chemical examiner, the sample containing 15 grams of substance received by him on 21-04-2003, through a letter of SHO dated 15-04-2003. The incident had allegedly taken place on 28-01-2004, and no explanation is given about the late sending of the sample, which also creates doubts about the safe and secure handling of the sample during such extended period.
8. It has also come on the record through deposition of marginal witness ASI Buxial Khan Mallah (PW-1) that the place of incident is a thickly populated area, but the SHO did not try to associate a private witness. This witness stated that he went with the SHO after the arrest of accused to the police station, where he stayed for half an hour and then returned to his Police Post. On the other hand, the complainant stated that he sent ASI Buxial Khan Mallah (witness) to his Police Post directly from the place of incident and he returned to the police station with accused and case property. These contradictions are not minor, but the same are serious disagreements of prosecution witnesses and creates doubt regarding the happening of the episode. 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 reported in (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.
9. 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.
10. These are the reasons of our short order dated 04.05.2017.