TARIQ SALEEM SHEIKH, J.---Through this judgment we intend to decide Crl. Appeal No,251618/2018 and Crl.
Revision No,256241/2018 as both arise from judgment dated 27.10.2018 passed by the learned Additional Sessions Judge/Special Judge (CNS), Depalpur , District Okara, in case FIR No,268/2017 dated 14.8.2017 registered at Police Station Mandi Ahmadabad, District Okara.
2. Brief facts of the case are that on 14-8-2017 at about 11:05 a.m. Shahadat Ali/Inspector (PW-2) along with other police officials was on patrol duty when he received a secret information that a person named Muhammad Yahya (the Appellant) was selling charas in front of his house situated at Rana Colony , Mandi Ahmadabad, and that he could be apprehended if appropriate action was taken. The Complainant conduct ed a raid, nabbed the Appellant and recovered 2300 grams charas and Wattak money in the sum of Rs, 480/- from him. He separated 115 grams from the recovered substance and prepared a sealed sample parcel for chemical analysis and secured the remaining charas P-1 by way of a distinct parcel and took both of them into his possession along with the Wattak money P-2 vide Recovery Memo Exh.P A. Then he drafted complaint Exh.PB and sent it to the police station through Ghulam Mustafa 411/C on the basis of which Abdul Razzaq/ASI (PW-4) registered FIR No,268/2017 Exh.PC.
3. The investigation of the case was entrusted to Muhammad Zubair/SI (PW-5) who went to the place of recovery where Shahadat Ali/Inspector (PW-2) handed over the aforementioned two parcels of the recovered charas and custody of the Appellant to him. Muhammad Zubair/SI interrogated the Appellant, prepared rough site plan Exh.PD and recorded the statements of the witnesses under Section 161, Cr.P.C. On his way back to the police station he handed over the case property to Ghulam Mohy-ud-Din 800/HC (PW-1) for safe custody . On the conclusion! of investigation the Appellant was challaned.
4. On 17.10.2017, the learned Additional Sessions Judge/Special Judge indicted the Appellant who did not plead guilty and claimed trial. The prosecution produced five witnesses in all. Shah adat Ali/Inspector (PW-2) and Muhammad Ali/ASI (PW-3) testified about the recovery of contraband charas from the Appellant. Shahadat Ali/Inspector (PW-2) also deposed that he delivered the sample parcel to the Punjab Forensic Science Agency (PFSA). Abdul Razzaq/ASI (PW-4) chalked out FIR No, 268/2017 Exh.PC. Ghulam Mohy-ud-Din 800/HC (PW-1) proved safe custody of the case property . The Investigating Officer, Muhammad Zubair/SI (PW-5), gave details of the investigation that he carried out in this case. On 5.9.2018 the learned prosecutor gave up PW Muhammad Yahya 697/C being unnecessary and closed the prosecution evidence after adducing report of the PFSA Exh.PE.
5. After the completion of the prosecution evidence the learned trial Court recorded statement of the Appellant under Section 342, Cr.P.C. He denied the allegations and professed innocence. When he was asked as to why this case was registered and why the PWs had deposed against him, he replied as under: "All the PWs are inter-se related. No independent PW deposed against me. Actually Muhammad Amin ASI posted at P.S. Mandi Ahmadabad was murdered by some unknown persons but case of his murder was registered against my brother Aurangzeb and he was challaned. Now he has been acquitted in that murder case. DPO, ASP and SHO Mandi Ahmadabad threatened us and made raids upon our house after the murder of Muhammad Amin ASI. My mother and I filed petitions before the Hon'ble Lahore High Court, Lahore, to stop them from causing illegal harassment and owing to this grudge the SHO Mandi Ahmadabad arrested me, planted a fake recovery and got lodged three different cases under section 9(c) of the CNSA. In one case I have been acquitted from the Court of Sheikh Abid Mukarram, the then learned ASJ Depalpur . The SHO Mandi Ahma dabad got lodged second FIR against me and I have been released on bail from that case. On the order of the DPO he lodged this FIR against me by planting a fake recovery . I am unable to walk and work due to paralysis. I am innocent."
6. The Appellant neither got his statement recorded on oath under Section 340(2), Cr.P.C. nor examined any witness in his defence but tendered in evidence copy of judgment dated 23.7.2018 in case FIR No,181/2013 (Exh.DA) and photocopy' of judgment dated 21.6.2017 passed in case FIR No,319/2016 (Mark-A).
7. On the conclusion of the trial, vide judgment dated 27-10-2018, the learned Additional Sessions Judge/Special Judge convicted the Appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced him to rigorous imprisonment for two years and six months with fine of Rs,20,000/- and in default thereof to undergo simple imprisonment for a further period of one month. Benefit of Section 382-B, Cr.P.C. was, however , extended to him. Aggrieved, the Appellant filed Crl. Appeal No,251618/2018 before this Court.
8. On 27-11-2018, when Crl Appeal No,251618/2018 came up for hearing this Court observed that the sentence awarded by the learned Additional Sessions Judge to the Appellant was not in accordance with the sentencing guidelines laid down in the case of "Ghulam Murtaza and another v. The State " (PLD 2009 Lah. 362) and affirmed by the Hon'ble Supreme Court of Pakistan in the case of "Ameer Zeb v. The State " (PLD 2012 SC 380). Therefore, while admitting the appeal to regular hearing this Court issued notice to the Appellant for enhancement of his sentence in respect of which the of fice prepared a separate file and numbered it as Crl. Revision No,256241/2018.
9. The learned counsel for the Appellant contended that the prosecution had failed to prove its case. The learned trial Court had failed to appreciate evidence properly which had caused serious miscarriage of justice. He argued that the Appellant was innocent and the case against him was mala fide. The SHO , Mandi Ahmadabad, had foisted charas on him by the order of the DPO, Okara. He argued that on 14-8-2017 neither Shahadat Ali/Inspector (PW-2) was on patrol duty nor he arrested the Appellant from Rana Colony . He conducted the recovery proceedings while sitting at the police station and all the PWs except the Investigating Officer were subordinate to him. He further argued that there were material contradictions in the prosecution evidence which made the case against him extremely doubtful. He prayed that this appeal be accepted and the Appellant may be acquitted of the charge.
10. On the other hand, the learned Additional Prosecutor General controverted the above contentions and supported the impugned judgment. He argued that the Appellant was caught red-h anded with 2300 grams charas along with Wattak amount of Rs,480/-. The sample drawn from the recovered contraband was sent to the PFSA and its report Exh.PE was positive. He further argued that the Appellant had failed to establish that the prosecution witnesses had any malice against him. He prayed for dismissal of this appeal.
11. We have heard the learned counsel and examined the record with their able assistance.
12. Shahadat Ali/Inspector (PW-2) and Muhammad Ali/ASI (PW-3) deposed that the Appellant was apprehended from in front of his house in Rana Colony on 14-8-2017 at 11:05 a.m. PW Shahadat Ali/Inspector added that the investigation of this case was entrusted to Muhammad Zubair/SI (PW-5) and when he reached the spot he handed over the case property and custody of the Appellant to him. The latter admitted this fact and deposed that on his return to the police station he gave the case property to Moharrar Ghulam Mohy -ud-Din 800/HC (PW-1) for safe keeping and lodged the Appellant in the police lock-up. He further deposed that he produced him before the learned Area Magistrate next day. However , perusal of the record reveals that the Appellant was produced before Syed Jahanzaib Bukhari, Magistrate 1st Class, Depalpur , on 14.8.2017 who remanded him to judicial custody . Its contradiction dents the prosecution story .
13. The Appellant has alleged specific mala fides against the police and has adduced documentary evidence to show that the police are inimical to him. When the aforementioned contradictio n is examined in this context it makes the prosecution case extremely doubtful. It is a cardinal principle of criminal jurisprudence that there need not be many circumstances for making the prosecution case doubtful. A single circumstance which creates doubt in a prudent mind about the guilt of the accused would entitle him to acquittal. The Hon'ble Supreme Court recently reiterated this principle as under in " Muhammad Mansha v . The State " (2018 SCMR 772 ): "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted'. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State (2009 SCMR 230 ) and Muhammad Zaman v . The State (2014 SCMR 749 )."
14. For what has been discussed above, we accept Crl. Appeal No,251618/2018 and set aside the impugned judgment dated 27-10-2018. The Appellant is acquitted of the charge. He is in jail. He shall be released forthwith if not required to be detained in any other criminal case.
15. Inasmuch as we have accepted the Appellant's appeal, the notice for enhancement of his sentence is withdrawn, Crl. Revision No,256241 of 2018 stands dismissed.