ZULFIQAR AHMAD KHAN, J.---Appellants namely Areeb Ahmed son of Jamal and Abdul Jaleel son of Ghulam Muhammad were tried by the learned Sessions Judge, Malir, Karachi, in case No,628/2016 in Crime No,207/2016 under Section 9(b) of Control of Narcotic Substances Act, 1997 along with Zahid son of Natha who died during the trial.
2. Through impugned Judgment dated 16.10.2017, the accused persons were convicted under Section 9(b) of CNS Act, 1997 and sentenced to undergo RI for one year and to pay fine of Rs,9,000/- each or in case of default in payment of fine, the defaulter was ordered to undergo S.I. for 15 days more. Benefit of Section 382-B, Cr.P.C. was extended in favour of the accused. Being aggrieved by the said outcome, the instant criminal appeal was preferred.
3. Brief facts of the prosecution case as disclosed in FIR are that on 03.8.2016 ASI M. Shafiq of PS Quaidabad, Karachi accompanied with officials namely HCs Gul Nawaz, Afrasiyab, PCs Rehmatullah, Abdullah and Driver PC Aziz were patrolling through their official mobile, when they reached Star Ground near Swati Muhalla, Landhi, Karachi at about 1530 hours, they found three persons in suspicious condition going on motorcycle bearing Registration No,KGE-2948, who were stopped with the help of the accompanied officials. On enquiry, they disclosed their names as Zahid, Areeb and Abdul Jaleel. Due to non-presence of private witnesses, personal search of these persons were conducted by making HC Gul Nawaz and HC Afrasiyab as Mashir, which resulted in a white plastic shopper being held in the right hand of Zahid containing Charas which weighed 300 grams. On conducting personal search of Areeb, a white plastic shopper held in his right hand containing Charas was also recovered, which weighed 310 grams and search of Abdul Jaleel also resulted in a white plastic shopper thrust in his fold containing Charas weighing 340 grams.
Documents of the motorcycle were demanded from the accused persons, which were not produced by them. The accused were arrested under Sections 6/9(b) CNS Act and the recovered Charas was sealed up separately for chemical analysis and the recovered motorcycle was taken into possession under a memo. The accused and the case property were brought at PS where above mentioned case was against them under 9(b) of CNS Act, 1997. During investigation, statements of PWs were recorded under Section 161, Cr.P.C., samples were sent for chemical examination for analysis, which reached to chemical examiner on 05.8.2016 as per exhibit '9-C'.
Positive chemical report was received. On the conclusion of investigation, final report was submitted against all three accused persons for offence under Section 9(b) of CNS Act, 1997.Trial Court framed charge against the accused persons under Section 9(b) as per Exhibit-2, to which they pleaded not guilty and claimed to be tried.
4. Prosecution in order to substantiate the charge against the accused examined PW-1 complainant ASI M. Shafiq at Exhibit-4, who produced memo. of arrest and recovery, FIR departure and arrival entries and memo. of inspection of wardat at Exhibit 4-A to 4-E. PW-2 HC Afrasiyab was examined at Exhibit-5. During trial accused Zahid expired, such statement of process server/ ASI Iftikhar Ali was recorded as Exhibit-6 and proceedings against him were abated vide Order dated 07.02.2017.PW-3 SIP M. Bashir was examined at Exhibit-9, who produced departure and arrival entries and report of chemical examiner at Exhibits 9-A to 9-C. Thereafter, learned prosecution closed side vide Exhibit-10.
5. The statements of accused Areeb and Abdul Jalil under Section 342, Cr.P.C. were recorded as Exhibits-11 and 12 respectively, to which they, denied the prosecution's ,allegations, claimed their innocence and stated that Rangers arrested them from their houses four days prior to the shown incident and handed over their custody to Police. Nothing was recovered from their possession, but police foisted Charas upon them and managed this false case. They prayed for justice. However, neither the accused opted to examine themselves on oath in disproof of prosecution allegations, nor led any evidence in their defence.
6. We have carefully heard Mr. M. Hanif, advocate for appellants as well as Mr. M. Iqbal Awan, DPG.
Learned counsel for appellants argued that it was a case of. spy information. In broad daylight and the place of recovery was a public ground, where private persons were available, but complainant avoided to call them as Mashir in this case. Hammering on the delay of two days in dispatching Charas for Chemical Examination, safe custody of the same during this period was seriously questioned. It was next contended that according to ASI, he handed over Charas to SIP M. Bashir, but the latter has neither been shown as a witness nor has been examined before the trial Court to explain the custody of Charas and the delay occasioned in its dispatch. He reiterated the defence taken by the accused persons that they were picked up by Rangers from their homes and their custody was later handed over to Police, which foisted Charas on them and fixed them in this false case.
7. Learned DPG on the other hand argued that the police officials are as good witnesses as private persons. He further argued that no serious enmity had been showed against police officials and mere delay in sending samples to the examiner could not be fatal to the case of prosecution. He, therefore, supported the impugned Judgment passed by the learned trial Court.
8. We have carefully judged and scanned entire evidence available on the record. It is the case of the prosecution that ASI M. Shafiq was on patrol duty along with other police officials in police mobile and when they reached Star Ground near Swati Muhalla, Landhi at 1530 hours, they found three boys coming on a motorcycle in suspicious manner, Police party stopped them and from their possession Charas was recovered in the manner that Zahid was carrying 300 grams Charas, Areeb was carrying 310 grams Charas and Abdul Jaleel was carrying 340 grams Charas. It is worth noting that during this personal search neither NICs, mobile phones nor any currency notes were recovered from the pockets of the accused persons.
9. Most important aspect is that no evidence has been put forward as to how Charas was weighed to the .shown accuracy, neither it is mentioned that weighing scale was being carried by police nor it is suggested that the same was borrowed at the spot. This gives a serious jolt to the prosecution story as to the recovery of definite measure of Charas being carried by three individuals at the same time. Being a daytime incident taken place publically, the failure of prosecution to include private witnesses also tarnishes prosecution's narrative. According to prosecution, Charas was recovered on 03.8.2016 but sent to the examiner on 05.8.2016. Absolutely, there is no evidence on record that Charas was kept in safe custody during this period, coupled with the fact that police officer who was mandated to take samples for examination was neither included as a witness nor presented to the Court. Also pertinent to note is that while the trial Court has taken note of the fact that the accused persons have. claimed their innocence and stated that they were picked up from their homes four days prior to the incident and their custody were handed over to police, which got foisted Chars upon them and managed this false case. No findings have been recorded by the trial Court to this version of the accused persons, which shows lack of application of mind of the trial Court.
10. For the above mentioned reasons, we are of the firm view that the prosecution case is full of infirmities and lacunas, creating serious doubts in a prudent mind. It is a known principle of appreciation of evidence that the benefit of all favourable circumstances must go to the accused regardless of whether he has taken any such plea or not. Reliance is placed on the case of M.
Nawaz and others v. The State and others (PLD 2005 SC 40). Also it is principle of law that it is not when prosecution's case is found to be infested with infirmities then benefit should travel to the accused, rather if a single circumstance has emerged which creates reasonable doubt in a prudent mind about the guilt of the accused, that the accused should be entitled to such benefit not as a matter of grace or concession but as a matter of right as held in the case of Tariq Pervez v.
The State (1995 SCM R 1345).
11. Regarding safe custody of Charas from the date of recovery to the date of receipt of the same by the chemical examiner, guidance could be taken from 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."
12. For the above stated reasons, while respectfully relying upon the above cited authorities, we have no hesitation to hold that prosecution has failed to prove its case against the appellants beyond shadow of doubt. Benefit of doubt is extended to the appellants., Consequently, Appeal is allowed, conviction and sentence awarded by the learned Sessions Judge, Malir Karachi vide judgment dated 16.10.2017 are set aside. Appellants Areeb Ahmed son of Jamal and Abdul Jalil son of Ghulam Mohammad are acquitted of the charges. Appellants are present on bail, their bail bonds stand , cancelled and sureties are hereby discharged.