NAIMATULLAH PHULPOTO, J.---Appellant Shakeel alias Hakla was tried by learned Judge, Special Court-II (C.N.S.), Karachi. After full dressed trial, appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to five (5) years and six (6) months RI and to pay fine of Rs,25,000/-, in case of default in payment of the fine, he was ordered to suffer S.I. for five (5) months and fifteen (15) days more. Appellant was extended benefit of section 382-B, Cr.P.C.
2. Brief facts of the prosecution case as discussed in the FIR are that SIP Amanat Ali of P.S. New Karachi left police station for patrolling duty on 21.10.2013 along with his subordinate staff, namely, ASI Rafiq, PC Faisal and HC Khalid Jalil. When police patty reached near Meat and Vegetable Market at 0550 hours, where it is alleged that SIP Amanat Ali received spy information that two persons were sitting there in suspicious manner. Police proceeded to the pointed place where it is alleged that 'accused while seeing the police started firing, the police party also fired in self defence. Police apprehended one accused, on inquiry he disclosed his name as Shakeel alias Hakla son of Nafees Ahmed. He disclosed the name of other accused who ran away as Faisal alias Muna by caste Qureshi. Due to non-availability of private persons it is alleged that ASI Rafiq Ahmed and PC Faisal were made as mashir and personal search of the accused was conducted. During search of above named accused, one .12 bore repeater with 5 live rounds were recovered from his possession so also a shopper. It was opened, it contained 225 rods of charas/hashish weighing about 2980 grams wrapped in blue plastic. Further personal search of accused was conducted and cash of Rs,220/- was recovered. Charas in the shape of 225 rods was sealed at spot separately and mashirnama of arrest and recovered was prepared in presence of mashirs ASI Rafiq Ahmad and PC Faisal. Thereafter accused and case property were brought to the police station where three FIRs were registered against accused (i) FIR No,352/2013 under sections 353, 324, 34, P.P.C., (ii) FIR No,53/2013 under section 6/9(c) of the Control of Narcotic Substances Act, 1997, and (iii) FIR No,354/2014 under section 23(1)(a) of the Sindh Arms Act, 2013.
2. Investigation of FIR No,353/2013 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 was entrusted to SIP Malik Muhammad Afzal on 21.10.2013. Custody of accused and case property was also handed over to him. I.O. visited the place of wardat on the pointation of complainant in presence of mashirs ASI Rafiq Ahmed and HC Faisal and prepared such mashirnama. I.O. recorded 161, Cr.P.C. statements of the prosecution witnesses. On 25.10.2013 IO had sent case property to the chemical examiner for analysis and received positive report from the chemical examiner on 01.11.2013. On the conclusion of usual investigation, challan was submitted against the accused under section 9(c) of the Control of Narcotic Substances Act, 1997.
3. Learned Judge, Special Court-H (CNS), Karachi framed charge against the accused Shakeel alias Hakla under section 9(c) of the Control of Narcotic Substances Act, 1997. Accused pleaded not guilty and claimed to be tried.
4. At trial, Examination-in-Chief of. PW-1 ASI Amanat Ali, PW-2 ASI Muhammad Rafiq and PW-3 ASI Malik Muhammad Afzal (LO.). Thereafter, prosecution side was closed at Ex.7.
5. Statement of accused was recorded under section 342, Cr.P.C. at Ex.8, accused claimed false implication in this case and denied the prosecution allegations. Accused has stated he has no concern with the positive report of chemical examiner. However, plea has been raised by the accused that PWs are police officials and interested and they had falsely implicated him in this case. Accused had declined to examine him on oath and did not lead any evidence in disproof of prosecution allegation. However, he stated that he was arrested from the house.
6. After hearing the learned counsel for the parties and assessment of evidence, by judgment dated 30.01.2015 trial court convicted and sentenced the appellant as stated above.
7. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the judgment dated 31.01.2015 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
8. Mr. Abdul Razzak, learned advocate for the appellant mainly contended that it was the case of spy information but SIP Amanat Ali failed to associate with him independent and respectable persons of the locality to witness the recovery proceedings. He has further argued that there was no evidence regarding the safe custody of the charas. It is also argued that evidence of the complainant and mashirs is material contracted on the point of the presence of private witnesses at the time of arrest and recovery of the accused. It is further contended that the appellant has been acquitted in the police encounter case by learned Sessions Judge concerned while disbelieving the evidence of the police officials. Lastly, it is argued that prosecution case is highly doubtful. In support of his contentions, he has relied upon cases of Ikramullah and others v. The State (2015 SCM R 1002) and Tariq Parvez v. The State (1995 SCM R 1345).
9. Mr. Muhammad Iqbal Awan, learned D.P.G. argued that evidence of the police officials was trustworthy, there was no lacuna in the evidence. He has further submitted that evidence of the police officials has been corroborated by the report of the chemical examiner in positive. However, learned D.P.G. admitted that there was no evidence that the charas was kept in safe custody from time when it was recovered until the time when it was sent for chemical examination. Learned D.P.G. prayed for disposal of the appeal.
10.After hearing the learned counsel for the parties, we have carefully perused the evidence available on record. We have several reasons to disbelieve the evidence of the police officials for the reasons that PW-1 SIP Amanat Ali has deposed that he had left police along with his subordinate staff for patrolling on 21.10.2013. When police party reached near Meat Market, received spy information that two persons were present in suspicious manner. Police, party tried to catch hold of them but accused started firing. One accused succeeded in running away, however, accused Shakeel alias Hakla was caught hold by the police. PW-1 has deposed that due to non- cooperation of the private witnesses he made ASI Rafiq and PC Faisal as mashir and recovered one .12 bore repeater along with 5 live rounds and one shopper containing 225 rods of chars/hashish weighing about 2980 grams, which were separately sealed. Empties were collected and the accused and case property were brought to the police station and lodged FIR against accused under section 9(c). Two separate FIRs, one of police encounter under sections 353, 323, 34, P.P.C. and other under section 23(1)(d) of Sindh Arms Act, 2013 for recovery of .12 bore repeater and 5 live rounds were registered against the accused. He has further deposed that he handed over the narcotics to the Head Moharar of the police station. In the cross-examination it has been admitted that there is no mention of departure entry in the FIR. It has also been admitted that place of arrest of accused was a thickly populated area. It has also been admitted that accused has been acquitted by learned Sessions Judge Karachi Central on 31.05.2014 in the police encounter case registered under sections 353, 324, 34, P.P.C. Most significant fact is that it has been admitted by the above named witnesses that charas was lying in the street near accused Shakeel alias Hakla.
He A has also admitted that charas was recovered from the house of co-accused Faisal alias Muna Qureshi. PW-1 has produced entry Ex.4/A, there is overwriting in the date viz. 20.10.2015. There is also overwriting in the mashirnama of arrest and recovery with regard to the grams of the charas, such overwriting is very clear.
11.PW-2 Muhammad Rafiq has acted as mashir. He gave episode of the incident. He clearly admitted that due to non-availability of the private witnesses he was made as mashir by SIP Amanat Ali. PW-3 SIP/I0 Malik Muhammad Afzal during his cross-examination deposed that he has received charas on 21.10.2013 and he sent it on 24.10.2013 to the chemical examiner for analysis but property was not received by the chemical examiner and objection was raised. After removal of the objection it was deposited on 25.10.2013. Chemical examiner's report Ex.6/c reflects that charas was sent to the chemical examiner as per letter No,Nill through SIP Malik Muhammad Afzal 12. We have carefully considered the contentions of the learned counsel for the parties and scanned the entire evidence as discussed above. We have come to the conclusion that prosecution has failed to prove its case against the accused for the reasons that it was the case of spy information. Place of arrest was thickly populated area. Presence of the private persons has also come on record, yet SIP made no efforts to associate any independent mashir which would have given more credibility to the evidence of the police officials. There were material contradictions in the evidence of the prosecution witnesses with regard to the availability of the private persons at the time of arrest and recovery. Most significantly there was no evidence that charas was kept in safe custody from the time when it was recovered until the time when it was sent for chemical examination. According to evidence charas was handed over the WHC of the police station but said WHC has not been examined at trial. There was also no evidence to show that recovered charas was deposited in Malkhana. No such entry has been produced. SIP Malik Muhammad Afzal had taken charas to the chemical examiner. He has also not deposed about safe custody of charas in Malkhana and safe transit to the chemical examiner. We have noticed overwriting in the entry Ex.4/A in the date and overwriting in the mashirnama of arrest and recovery with regard to the weight of the charas.
Prosecution has no reply to satisfy the court. Learned D.P.G. has admitted that there is no evidence regarding the safe custody of the charas at the police station so also its safe transit to the chemical examiner. Thus, in view of these circumstances, even if, the chemical report is proved positive it is of no assistance to the prosecution. In the case of Ikramullah and others v. The State (2015 SCM R 1002), the importance of keeping the recovered narcotic substance in safe custody and proving its safe transit to the chemical examiner was emphasized in the following terms:-- "5. In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution.
It is not disputed that the Investigating Officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the chemical Examiner without the same being tampered with or replaced while in transit."
13. It is settled law that it is not necessary that there should be many circumstances creating doubts. If there is a single 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 as held in the case of Tariq Pervez v. The State (1995 SCM R 1345), the Honourable Supreme Court has observed as follows:--
14. For the above stated reasons, we hold that prosecution has failed to prove its case against the appellant, therefore, while extending the benefit of doubt, appeal is allowed and the conviction and sentence recorded by the trial Court are set aside and appellant is acquitted of the charge. He is present on bail, his bail bond stands cancelled and surety discharged.