FAHIM AHMED SIDDIQUI, J.---This single judgment will dispose of the aforementioned Criminal Appeals directing against the one and the same judgment dated 06.12.2016, whereby the appellants have been convicted and sentenced for life as well as to pay of fine of Rs.1,00,000/- each in Special Case No.93 of 2015, under Section 9(c) of CNS, Act. It has been observed in the impugned judgment that in case of failure to make payment of fine, the appellants have to undergo SI for six months. However, the benefit of Section 382, Cr.P.C. will be available to the appellants.
2. The allegations against the appellants, as per charge are that they along with absconding accused were found while transporting 90 kilogram hashish (charas) in a Mehran car by police party of CIA Centre Mirpurkhas headed by SIP Bulando Khan. The appellant Ghulam Nabi was arrested on the spot while rest of the nominated accused absconded away, amongst them appellant Ashique Ali was subsequently arrested in another case/crime.
3. The appellants denied all the allegations levelled against them in charge and pleaded not guilty, as such, the prosecution was directed to establish their case. The prosecution examined complainant Bulando Khan, marginal witnesses of memo of arrest and recovery, PC Muhammad Ramzan and SIP Kanwar Singh. All the relevant documents and articles of the case were produced by the prosecution through the witnesses during trial. The statements of appellants under Section 342, Cr.P.C. were recorded in which they once again denied all the allegations as well as declaring the prosecution story as false. Regarding report of chemical examiner, their specific contention is that the same is managed one. Nevertheless, the appellants did not examine themselves on oath and avoided to produce any evidence in their defence. However, appellant Ghulam Nabi Shah in his statement under Section 342, Cr.P.C. has specifically stated about animosity of matrimonial affairs with Rajpar community and contends that on their instance he is involved in the instant case.
4. After examining the prosecution witnesses and hearing the parties, the trial judge came to conclusion of conviction as described above.
5. While pressing the instant appeals, Mr. K.B. Lutif Ali Leghari, learned counsel for the appellant Ghulam Nabi Shah in Cr. Appeal No.D-132 of 2016, preferred his submissions at length. He points out contradictions in the depositions so recorded before the trial Court. According to him, the case against the appellants is not free from doubt as on the material points witnesses are in conflict to each other. He submits that the safe custody of the alleged narcotics is a question, which was overlooked by the learned trial Court. He submits that mode of recovery itself is not believable as five (05) persons, with two guinea bags of hashish (charas) cannot fit in a small car like Mehran. According to him, entire prosecution case is silent regarding car from which narcotics were allegedly recovered.
6. Mr. Mian Taj Muhammad Keerio, learned counsel for the appellant Ashique Ali in Cr. Jail Appeal No.D-137 of 2016, adopts the arguments advanced by learned counsel for the appellant Ghulam Nabi Shah of Criminal Appeal No.D-132 of 2016. In addition to the same, he submits that the delay in sending the recovered narcotics for chemical examiner is fatal to the prosecution case. There is contradiction in FIR as well as entry No.5 of daily diary regarding the police officials, who left the police station for patrolling. There is a spy information but no efforts were taken for associating any independent and private witness.
7. On the other hand, learned Assistant Prosecutor General supports the impugned judgment by submitting that the contradictions are minor and can be overlooked. According to her, the property / car was impounded under Section 550, Cr.P.C. and this fact is available on the record. However, she frankly admits that the car which was recovered was not made as a case property and it is not available on the record that what happened to the said car. She also admits that there is a question of safe custody as property must be available in malkana but no such entry is on the record.
8. In the light of the submissions made before us, we have scanned the entire material in the instant matter, as such, we have observed certain discrepancies and contradictions in the prosecution case. In the instant cases certain important points are required consideration. It is notable that in FIR the names of officials accompanied with the complainant are mentioned as PC Abdul Wahid, PC Muhammad Ramzan, PC Saeed Baig and PC Muhammad Abbas while departure entry of daily diary being entry No.5 indicates two additional names i.e. PC Abdul Wadood and PC Muhammad Ilyas. Nonetheless, the entry No.5 of daily diary is produced but due to contradictions between the FIR about the members of police party, a serious doubt is created in respect of the names of police party mentioned in the entry as it is the same police party which has conducted raid. It is worth mentioning that the raid was conducted on a tip off but no serious efforts was taken by the police party to associate any independent or private witness. It is also important to note that according to the PW-3 SIP Kanwar Singh, there were three (03) seals on the case property sent to chemical examiner but report of chemical examiner indicates that there were only two (02) seals.
9. The alleged incident was taken place on 12.12.2015 while the case property was sent to chemical examiner on 16.12.2015 and the same was received on 17.12.2015. It took about one day i.e. 24 hours in transporting narcotics from Mirpurkhas to Karachi, which itself is not believable. Besides, a serious question arises that from 12.12.2015 to 16.12.2015 where was the case property when the entire property was sent for chemical examiner. The statement of complainant does not disclose anything about the safe custody of the recovered narcotics. In the instant case, it is an admitted position that neither the roznamcha entry of malkhana was produced nor the Incharge of malkhana was examined before the trial Court. In absence of such evidence, the safe custody of case property remains questionable and creates serious doubt regarding the prosecution case and in this regard we are strengthened with the observations of Hon'ble Supreme Court of Pakistan made in the case of 'Ikramullah and others v. The State' [2015 SCMR 1002].
10. The last but not the least, dent is caused in the prosecution case due to silence in respect of the alleged un- registered / un-numbered car from which the alleged narcotics were recovered. Besides, it is also an astonishing fact that when the police party received spy-information and they approached to the reported place with intention to arrest and recover the narcotics then how four (04) accused persons, sitting in vehicle with gunnysacks, succeeded in escaping from the place of incident when the alleged incident was taken place at 03:00 pm. It is broad day time and the place of incident is populated area and police party must have been armed with sufficient weaponry, the escaping of such a huge numbers of accused persons itself unbelievable.
Besides, the car in which the narcotics was being transported neither made case property nor produced during trial.
11. We are of the view, that in the instant case, the contradictions between roznamcha entry and FIR regarding the names of members of police party, question of safe custody of the recovered property, non-production of recovered car as case property, etc. when considered in the backdrop of contradictions of prosecution case, the case against the appellants is engulfed under the thick clouds of doubts. It is settled legal position that the benefit of doubt shall always go in favour of the appellants. We, therefore, came to conclusion that since the prosecution case is not free from doubt, as such, appellants were acquitted from charge under a short order dated 13.11.2018, which is reproduced as under:-- "Parties' advocates have been heard. They have concluded their arguments. For the reasons to be recorded later on, both the appeals are allowed. Consequently, impugned judgment dated 06.12.2016 passed by learned Sessions/ Special Judge CNSA, Mirpurkhas stands set-aside. Appellant Ghulam Nabi Shah and Ashique Ali are in custody, they be released forthwith if not required in any other custody case".
12. The above are the reasons for our aforesaid short order, in terms of which both Appeals were allowed.