ABDUL MAALIK GADDI, J.---By this criminal appeal, appellant Ali Akbar has assailed the legality and propriety of the judgment dated 22.06.2017 passed by learned 1st. Additional Sessions/Special Judge (Narcotic), Dadu, in Special Case No.248 of 2016, arising out of Crime No. DO40201916/2016, registered at Police Station ANF Hyderabad, under section 9(c) of Control of Narcotic Substances Act, 1997 (CNSA), whereby he has been convicted under section 9(c) CNSA, 1997 for possessing 08 kilograms of charas and sentenced to suffer RI for 09 years and to pay fine of Rs.13,500/- and in default whereof to suffer simple imprisonment for 07 months more. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
2. The facts of the case as narrated in the FIR are that on 17.05.2016 complain ant Inspector/SHO Muhammad Naseer of Police Station Anti-Narcotics Force Hyderabad lodged FIR on behalf of State, alleging therein that on that day when he was present at P.S. he received spy information that a person namely Ali Akbar was coming at Sindh Lines Coach Stop Mehar By-Pass between 1200 to 1400 hours with a huge quantity of Narcotics in order to give the same to his client and he further informed that in case of rapid action his arrest and recovery is sure. On receipt of such information and under the directions of superiors a team for raid comprising over complainant, Naib Sobedar Asghar Ali, HC Abdul Razzaque, HC Raheem Bux, PC Shoukat, PC Kashan, Sep Irshad, Sep Mohsin, drivers HC Ghulam Rasool and Sep Imdad Ali was constituted and they left with official arms and ammunitions in two vehicles under entry No.4 at 0900 hours and at 1300 hours reached at the pointed place, where saw a person standing having a cloth bag of off white colour in his right hand and on the indication of spy, the person was apprehended along with bag. The persons who were present were asked to become witness but they apologized, hence HC Abdul Razzaque and PC Shoukat were made mashirs. On enquiry, accused disclosed his name as Akbar Ali son of Qurban Ali Solangi, his bag was taken into possession which was checked and same was containing eight multi-coloured foil pack packets of contraband Charas. All the packets were checked and each packet containing two slabs of Charas. All the packets weighed and each packet became 01 KG and gross weight of the Charas became 08 KGs, which was sealed in the bag for chemical examination. On personal search, original CNIC of accused, one Nokia-108 mobile phone and cash Rs.950/- were recovered from his right side pocked and the accused was arrested. Such mashirnama was prepared and read over to the mashirs, who put their signatures on it and sealed parcel. Then accused and case property were brought at police station where FIR was lodged by the complainant on behalf of the State under section 9(c) CNSA.
3. It appears from the record that on conclusion of the investigation, challan was submitted against the accused for offence under section 9(c) CNSA.
4. Thereafter, trial court framed charge against accused at Ex.3, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.4. At trial prosecution examined PW-1 complainant Inspector Muhammad Naseer Afridi at Ex.5, who produced mashirnama of arrest and recovery, FIR, departure and arrival entries Nos.4 and 7, letter regarding criminal record of accused, letter issued by the complainant to chemical examiner and chemical examiner's report at Exs.5/A to 5/F, respectively; then P.W-2 eye-witness/mashir HC Abdul Razzaq was examined at Ex.6; and, thereafter , prosecution closed its side at Ex.7.
5. Statement of accused was recorded under section 342, Cr.P.C. at Ex.8; wherein he denied the prosecution allegations alleged against him and professed his innocence. In his said statement, the accused also stated that due to filing petition against police the witnesses have deposed against him being inimical. He also stated that he has been implicated by ANF at the instance of police, as they are colleagues. He produced certified copy of C.P. No.351/2016, filed before this Court at. Circuit Court Larkana. However, neither he examined himself on oath nor led any defence evidence in order to disprove the prosecution case.
6. Learned Special Judge after hearing the learned parties' counsel and examining the evidence available on record convicted and sentenced the appellant as stated above through impugned judgment. Hence this appeal.
7. Learned trial court in the impugned judgment has already discussed the facts of the case as well as the evidence in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.
8. Learned advocate for appellant has contended that the prosecution case is highly doubtful; that as per prosecution evidence this is a case of spy information and the place of incident was located at busy spot, yet, none from public was joined to attest the arrest and recovery; that there are material contradictions in prosecution evidence, hence it cannot be safely relied upon; that the alleged contraband item was recovered on 17.05.2016 at 01:00 p.m. but it was sent for chemical examination on 18.05.2016 with a delay of one day; that the contraband item was sent for test and report through PC Irshad, however, the said PC has not been examined by the prosecution to established the transportation of the alleged contraband item and its receipt for examination and report in the office of Examiner in a safe manner; therefore, the entire process of sending and delivering the said sample in the office of Chemical Examiner become doubtful and tampering with the case property during such period/process could not be ruled out especially when no evidence has been brought on record that the narcotic substance was in safe custody during that period; that though the Chemical report was in positive however , was without required certification of the Chemical Examiner . Lastly , he prays that appeal of the appellant be allowed and the impugned judgment be set aside.
9. Learned Special Prosecutor ANF fully supported the impugned judgment and in particular 'contended that the recovered contraband item had been in safe custody following its recovery until the time it was sent and received in the office of Chemical Analyzer for chemical examination, coupled with the report of Chemical Analyzer which is positive; that the prosecution has fully proved its case beyond any shadow of doubt; that the learned trial Court passed the impugned judgment after appreciating the evidence available on record in its true perspective; therefore, under these circumstances, he prays that the instant appeal may be dismissed. In support of his contentions, learned Special Prosecutor ANF relied upon the cases of Muhammad Sarfraz v. The State and others (2017 SCMR 1874 ), Ghulam Shabir Shar v. The State (2018 PCr.LJ 829), Abdul Rehman alias Juman v. The State (2018 PCr .LJ 1015) and Zafar v . The State (2008 SCMR 1254 ).
10. After having heard the learned parties counsel, scanned the entire evidence and considered the relevant law, we have come to the conclusion that prosecution has failed to establish its case for the reasons that as per the prosecution evidence the complainant after receiving spy information at Police Station, proceeded and reached at the pointed place along with his subordinates and arrested the appellant and recovered 08 kilograms of Charas from his possession; that as per prosecution case, after receiving advance/spy information by the complainant at police station and then crossing about 250 kilometers, they reached at the place of alleged incident i.e. Sindh Line Coach Stop Mehar, which apparently was a busy area, however, no serious efforts have been made to pick up an independent person of the locality to witness the arrest and recovery proceedings; that as per record there are material contradictions in prosecution evidence, hence it cannot be safely relied upon; that as per prosecution case the alleged contraband item was recovered on 17.05.2016 at 01:00 p.m. but it was sent for chemical examination on 18.05.2016 with a delay of one day; that as per I.O./complainant of the case the contraband item was handed over to PC Irshad for delivering the same in the office of Chemical Examiner for analysis, however, neither the said PC has been examined nor any entry with regard to keeping and sending the contraband item for examination and report in a safe I manner, has been brought on record by the prosecution to substantiate its case, therefore, the entire process of sending and delivering the said sample in the office of Chemical Examiner has become doubtful and tampering, with the case property during such period/process could not be ruled out especially when no evidence has been brought on record that the narcotic substance was in safe custody during that period; that though the Chemical report was in positive however, it was without required certification of the Chemical Examiner. Under these circumstances, the entire prosecution case has become doubtful. In short we are not satisfied on the evidence as produced by the prosecution that the recovered narcotic was kept in safe custody during the period when it was recovered, sent to Chemical Examiner and received in his office. During such period, the recovered narcotic could have been interfered/ tampered with. Since heavy sentences are handed down in narcotics cases it would be appropriate to consider the evidence in a stringent manner and in doing so we do not find that the prosecution has proved safe custody of the narcotics beyond a reasonable doubt; thus the prosecution case has become doubtful. In this regard we are fortified by the case of Ikramullah and others v. The State (2015 SCMR 1002), the relevant portion of which is reproduced hereunder:-- "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 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."
11. Apart from above, we have also gone through the entire record as made available before us with the able assistance of learned APG and come to the conclusion that the evidence so brought on record by the prosecution is contradictory on material particulars of the case. For example; as per contents of the FIR and the evidence recorded before the Court, complainant/Inspector Muhammad Naseer of Police Station ANF has received spy information that accused Ali Akbar was coming at Sindh Line Coach Stop Mehar, which is admittedly situated at a distance of about 250 kilometers away from the said P. S. and while proceeding towards the pointed place they stopped and got fueled their vehicles from Petrol Pump at Qasim Chowk and then went ahead; whereas P.W/mashir Abdul Razzaq in his evidence has stated that they did not make stay anywhere in the way while going towards the place of incident; that complainant in his evidence has also stated that he tried to pick up private persons as mashir of arrest and recovery, however, they sought apology on the ground that they were passengers; whereas P. W/mashir Abdul Razzaq has stated that complainant did not ask any person to actA as mashir; that complainant has stated that he has completed the entire proceedings at the place of incident within one hour, whereas P. W Abdul Razzaq has stated that they have completed the said proceedings within 30 minutes. Apart from this, it also appears from the record that registration number of the vehicles on which the complainant party was boarded at the time of incident, have not been mentioned in the FIR nor in the mashirnama or evidence of prosecution witnesses.
12. It is also pertinent to mention here that in this case the complainant/ Inspector Muhammad Naseer had himself conducted the investigation of the case. In our view the person who is complainant of the case in order to keep all fairness of thing cannot investigate the same case, which must be investigated by an independent officer but not by the complainant himself. The Hon' ble Supreme Court has observed similar view with a different angle in a case reported as State through Advocate General, Sindh v. Bashir and others (PLD 1997 Supreme Court 408) , wherein it is held as: "As observed above, Investigating Officer is as important witness for the defence also and in case the head of the police party also becomes the Investigating Officer, he may not be able to discharge his duties as required of him under the Police Rules".
Similarly, in a case reported as Ashiq alias Kaloo v. The State (1989 PCr.LJ 601), the Federal Shariat Court has observed that investigation by complainant while functioning as investigating officer is a biased investigation. In the case in hand, P.W-2 HC Abdul Razzaq was subordinate of the complainant no third party/independent person from or while going towards the place of incident was picked up to act as mashir of arrest and recovery; therefore, this is a case of insufficient evidence. In this context we are fortified by the case of Muhammad Altaf v.The State (1996 PCr.LJ 440), Qaloo v. The State (1996 PCr.LJ 496), Muhammad Khalid v. The State (1998 PCr.LJ 808) and Nazeer Ahmed v. The State (PLD 2009 Karachi 191).
13. In view of the above, coupled with the other above mentioned reasons we hold that in this case the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. There are so many defects and contradictions in the prosecution case/evidence; thus, the prosecution case appears to be doubtful and benefit of the same should be extended in favour of the appellant as of right as opposed to concession as was held in the case of Tariq Pervez v.The State (1995 SCMR 1345), wherein it was observed as under:-- It is settled law that it is not necessary that there should many circumstances creati ng 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."
14. During his arguments, the learned Special Prosecutor ANF has relied upon the case law as mentioned supra and submitted that in the said cases conviction to accused was maintained in the identical circumstances of the case. We have gone through the judgments cited by the learned Special Prosecutor and come to the conclusion that the facts of the said cited cases are altogether distinguishable from the facts of the case in hand on the ground that in the cited cases there is no mention of the case of Ikramullah and others v. The State reported in (2015 SCMR 1002), nor it is mentioned that this case was brought in the notice of the learned Bench, therefore, this ground is not helpful to the prosecution in this case.
15. For the above stated reasons, we hold that the prosecution has failed to prove its case against the appellant, therefore, while extending the benefit of doubt in favour of the appellant the instant appeal is allowed, the impugned judgment dated 22.06.2017 passed by the learned 1st. Additional Sessions/Special Judge (Narcotic), Dadu, in Special Case No.248/2016 is set aside and the appellant, who is in custody, is acquitted of the charge. He shall be released forthwith if not required in any other custody case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.