Sadiq Mahmud Khurram, J.--The appellant namely Mansoor Haider Kiyani son of Haider Zaman was tried by the learned Sessions Judge/Judge Special Court (CNS) Rawalpindi along with Waqar Akhtar son of Kanwar Zulfiqar , the co-accused of the appellant (since acquitted) in case FIR No. 21 of 2019 dated 4.2.2019 registered at Police Station ANF RD North Rawalpindi, in respect of offences under Sections 9(c) and 15 of Control of Narcotic Substances Act, 1997 and the learned Sessions Judge/Judge Special Court (CNS) Rawalpindi vide judgment dated 19.03.2020 convicted Mansoor Haider Kiyani son of Haider Zaman (appellant) ) and sentenced him as infra: Mansoor Haider Kivani son of Haider Zaman: Rigorous Imprisonment for five years and six months under Section 9-(c) of Control of Narcotic Substances Act, 1997 and also burdened with fine of Rs. 25,000/-, in default thereof, was directed to further undergo simple imprisonment for five months and fifteen days.
The appellant was however , extended the benefit available under Section 382 B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.)".
Waqar Akhtar son of Kanwar Zulfiqar , the co-accused of the appellant was acquitted by the learned trial Court.
2.Feeling aggrieved, Mansoor Haider Kiyani son of Haider Zaman (convict) lodged the instant Criminal Appeal No. 200 of 2020 challenging the judgment dated 19.03.2020 passed by the learned Sessions Judge/Judge Special Court (CNS) Rawalpindi whereby the appellant was convicted and sentenced for an offence punishable under Section 9(c) of Control of Narcotic Substances. Act, 1997 (hereinafter referred to as "the Act") as mentioned above.
3. Precisely the facts necessary , as divulged in the statement Gohar Nabi Baig, Inspector ANF (PW-4) are as under; "It was on 03.02.2019 when 1 was present in police station where at about 11:00 pm I received secret information that Mansoor Haider and Waqar Akhtar the agents of one Mahmood will come to Mandra Chakwal road on car no.LX-717 for supplying huge quantity of narcotics. On this information raiding party comprised of Zakir Hussain HC, Mohammed Imran, Mohammed Riaz and Shahid constable besides drivers of official vehicles nos. RIG-1 177 and GAB-431 headed by me was constituted. We arrived at the relevant place and started checking. At about 01:00 am (midnight) of 4.2.2019 above-mentioned car came there. We gave a signal to stop it but the driver avoided however we were succeeded to restrain it. The person who was driving the car was Mansoor Haider whereas W aqar Akhtar was occupying front seat and both accused are present in Court today .
They disclosed about narcotics in secret cavity that was inside the place for spare tyre in the diggy of the car: I searched it and from that place I recovere d two packets wrapped with Khaki solution tape in polythene envelopes.
Every packet was having charas 1200-grams and as a whole it was 2400-grams charas. 10-grams from each packet were separated for chemical analysis. Recovered Charas (PI) and two samples were made into independent sealed parcels which along with car (P2) were taken into position vide a memo. Ex.PB.
On personal search of Mansoor Haider Rs. 11001- (P3), driving license (P4), ATM card (P5), registration book (P6) one license of30-bore (P7), CNIC (P8) and another arm license of Kalashnikov (P9) were taken into possession vide an inventory Ex-PC.
On personal search of Waqar Akhtar Rs. 900/- (P10) his CNIC (P11) and different visiting cards (P12) were also secured through another inventory Ex.PD.
All memos were signed by Mohammed Imran and Mohammad Niaz constables.
I drafted the complaint Ex-P A and sent it to police station through Irfan Mehmood driver for registration of FIR.
I sketched rough site plan Ex-PE. I recor ded statements of witnesses under Section 161, Cr.P.C. I arrested both accused in this case and completed the proceedings on recovery memos by providing particulars of FIR.
On return to police station I handed over entire case properties to Moharrar for further proceedings. I produced both accused in the Court of Area Magis trate with a request for physical remand but same was turned down and they were remanded to judicial custody .
On conclusion of investigation I got submitted report under Section 173 Cr .P. C."
4. On the above stated facts FIR No. 21 of 2019 dated 04.02.2019 was registered at Police Station ANF RD North Rawalpindi in respect of of fences under Sections 9(c) and 15 of Control of Narcotic Substances Act, 1997.
5. After the formal investigation of the case, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellant was sent to face trial. The learned trial Court framed the charge against the accused on 17.06.2019 under Section 9(c) of the Control of Narcotic Substances Act, 1997.
The appellant pleaded not guilty and claimed trial and the learned trial Court proceeded to examine the prosecution witnesses.
6. In order to prove the facts, the prosecution examined as many as five witness es. The prosecution got Gohar Nabi Baig, Inspector ANF (PW-4) and Muhammad Imran Constable ANF (PW-5) examined as witnesses to the recovery of "Charas " (Exh.P-1). Abdul Razzaq/HC (PW-2) stated that on 4.2.2019 he received two sealed parcels from Gohar Nabi Baig, Inspector ANF (PW-4) and on 6.2.2019, he handed over two sealed parcels to Muhammad Ijaz, Constable (PW-1) for their onward transmission to the office of National Institute of Health, Drugs Control and Traditional Medicines Division Islamabad, Shahid-ur-Rehman/HC (PW-3) recorded the formal FIR (Exh. PA/1) on 4.2.2019. Gohar Nabi Baig, Inspector ANF (PW-4) also investigated the case from 4.2.2019 till the submission of report under Section 173 of the Code of Criminal Procedure, 1898 and detailed the facts of the investigation in his statement before the learned trial Court.
7. On 6.3.2020, the learned SPP gave up prosecution witness Muhammad Niaz Constable as being unnecessary and closed the prosecution evidence after tendering in evidence reports of National Institute of Health, Drugs Control and Traditional Medicines Division Islamabad (Exh.PF and PG).
8. After closing of prosecution evidence the statement of the appellant was, recorded under Section 342 of Code of Criminal Procedure, 1898 and the appellant pleaded his innocence and in reply to as to why the prosecution witnesses had deposed against him, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution being subordinate to the Investigating Officer. The appellant further claimed that he had been substituted for the real offender . The appellant, however , opted not to appear in terms of Section 340(2) of the Code of Criminal Procedure, nor adduced any evidence in his defence.
9. After completion of evidence and hearing both the parties, the learned trial Court held the appellant guilty of offence and sentenced the appellant as referred to above.
10. Learned counsel for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant. Learned counsel further argued that there were glaring contradi ctions in the statements of the witnesses hitting at the very root of the prosecution case. Learned counsel also stated that nothing was recovered from the appellant and pleaded for acquittal of the appellant.
11. On the other hand, the learned Special Prosecutor , ANF appearing on behalf of the State submitted that the prosecution has proved the charge by producing admissible and relevant evidence. He further submitted that all the witnesses have corroborated each other . He requested that the appeal be dismissed.
12. We have heard the learned counsel for the appellant as well as the learned Special Prosecutor , ANF and perused the record.
13. We have very judiciously perused the statements of the witnesses produced by the prosecution. We find that there is more than one circumstance which points towards the false involvement of the appellant in this case. We have gone through the statements of both Gohar Nabi Baig, Inspector ANF (PW-4) and Muhammad Imran Constable ANF (PW-5), the witnesses who were produced by the prosecution to prove the recovery of "Charas "
(Exh.P-1) from the possession of the appellant. According to Gohar Nabi Baig, Inspector ANF (PW-4), it was him who had drafted the complaint (Exh. PA) and send the same to the police station for the registration of FIR through Irfan Mehmood, driver (not produced). Contrary to this Muhammad Iqbal, Constable ANF (PW-5) stated that it was him who had drafted the complaint (Exh. PA) and send the same to the police station for the registration of FIR through Irfan Mehmood, driver (not produ ced). This contradiction was apparent .however both the witnesses were not cross-examined or re-examined in this regard. It would be advantageous to re-produce the portions of the examination in chief recorded of both to Gohar Nabi Baig, Inspector ANF (PW-4) and Muhammad Iqbal, Constable ANF (PW-5) Gohar Nabi Baig, Inspector ANF (PW-4) in his statement before the learned trial Court stated as under: "I drafted the complaint Ex-P A and sent it to police station through Irfan Mehmood driver for registration of FIR."
Muhammad Iqbal, Constable ANF (PW -5) in his statement before the learned trial Court stated as under: "I drafted the complaint Ex-P A and sent it to police station through Irfan Mehmood driver for registration of FIR."
The above-noted contradictions in the statements of the witnesses are sufficient to smash the case of the prosecution into smitherings. Irreconcilab le obscurities have crept into the case of the prosecution with regard to the recovery of the Charas (P-1), which can be given the benefit of to the appella nt only. The prosecution case is silent in respect of these vital aspects of the case and in absence of this certainty we cannot believe the case of the prosecution as it is. We have also noted that Gohar Nabi Baig, Inspector ANF (PW-4) did not proceed to the police station after the arrest of the accused for getting the FIR recorded rather depu ted Irfan Mehmood, driver (not produced) to get the FIR registered. It is unexplainable as to why Gohar Nabi Baig, Inspector ANF (PW-4) himself did not proceed to the Police Station when he himself had arrested the accused and prepared the recovery memo.
(Exh.PB) and also was the investigating officer of the case. Furthermore, the police station was at a distance of only 32 kilometers from the place of occur rence and there was nothing further to be done at the spot by Gohar Nabi Baig, Inspector ANF (PW-4) or indeed the other witnesses for them to have kept standing at the place of occurrence. Additionally the said Irfan Mehmood, driver , who took this complaint (Exh.P A) to the police station for the registration of FIR, was neither cited as a witness nor his statement under Section 161 Cr.P.C. was recorded nor he was examined as a witness during the trial of the case though he was also an eye witness of the occurrence. This aspect of the case has convinced our minds that the whole prosecution case is a figment of imagination of GoharNabi Baig, Inspector ANF (PW-4), the complainant and the Investigating Officer of the case.
The august Supreme Court of Pakistan in the case of Minhaj Khan vs. the State (2019 SCMR 326) has held as under:- "An unusual' facet of this case is that having apprehended and arrested the petitioner the PW-2 did not take him to police station Hazro to register the FIR and instead deputed Constable Jehanzeb Khan to take his written complaint, which he wrote out when the petitioner was apprehended, to Police Station Hazro Constable Jehanzeb Khan, "left place of occurrence on feet" [sic] to the police station which was at a distance of 15/16 kilometers and the FIR was registered on the basis of said written complaint. Constable Jehanzeb Khan was not produced as a prosecution witness. Since Police Station Hazro was at a distance of 15/16 kilometers from the place of occurrence it does not stand to reason that Constable Jehanzeb Khan was directed to go there on foot with the written complaint, whilst PW-2 (the complainant) himself could easily have driven there in the said car. Constable Jehanzeb Khan with the written complaint arrived at Police Station Hazro at 3:30 p.m. while PW-2 reached there much later, at 5:00p.m. No explanation was offered by PW-2 what he was doing in the intervening period. The manner in which this case was split up is inexplicable:. Constable Jehanzeb Khan was sent off with the written complaint to the police station on foot while the complainant with accused and the confiscated substance went there by car. Constable Jehanzeb Khan travelling by foot arrived at the police station an hour and a half earlier than the complainant PW -2.
9. The discrepancies in the testimonies of the two witnesses; the purported lack of knowledge about certain things which they ought to have remembered whilst having a photographic recollection of other insignificant things; not knowing those things which they should have; the fact that Constable Jehanzeb Khan reached the police station before the complainant PW-2; the non-pro duction of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity . The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that thy petitioner was involved in a false case for ulterior reasons."
14. We have also noted with grave concern that the recovery memo Exh. PB relating to the recovery of "Charas" from the possession of the appellant, bears the FIR number whereas the said recovery memo was prepared prior to the recording of the complaint (Exh.P A) which was prepared at 3.30 p.m., when at such time the FIR (Exh.P A/1) had not been registered and its number was not known as the FIR (Exh.P A/1) was recorded at 4.20 p.m. This also proves the manipulation of the recovery memo. (Exh.PB).
15. Keeping all these possibilities in mind and raising necessary inferences from the facts available, on the record we have arrived at a conclusion that a possibility cannot safely be ruled out of cons ideration regarding the appellant having been falsely implicated in the present criminal case and, thus, we have decided to extend the benefit of the doubt to him. We have noticed that there are serious discrepancies in the evidence of material witnesses which cannot be ignored though there is a slight difference by virtue of Narcotic Substances Act, 1997 in the manner and standard of proof in cases registered under the said Act but the prosecution is always bound to discharge the initial onus of proof. This is now a settled principle of law that in every case the burden to prove the guilt of the accused always lies on the prosecution. Even the slightest doubt results in failure of the case of the prosecution. The benefit of doubt is not to be granted as a concession but as of right. The prosecution by mishandling the case has badly failed to bring on record unimpeachable and cogent evidence to prove the culpability of the appellant. In light of the above noted infirmities, we are inclined to observe that prosecution has miserably failed to bring home the guilt of the accused. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in cases titled Ikramullah and others vs. The State (2015 SCMR 1002 ), Akhtar Iqhal vs. The State (2015 SCMR 291) and Muhammad Hussain vs. The State (2008 SCMR 345). The august Supreme Court of Pakistan in the case of Muhammad Mansha vs. The State (2018 SCMR 772 ) has enunciated the following principle: "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 )."
16. For what has been discussed above, we are persuaded to hold that the convi ction and sentence recorded by the learned Sessions Judge/Judge Special Court (CNS) Rawalpindi vide judgment dated 19.3.2020' in the circumstances, are not sustainable. We, thus while allowing the instant Criminal Appeal No. 200 of 2020 filed by Mansoor Haider Kiyani son of Haider Zaman (appellant), set-aside the judgment dated 19.3.2020 passed by the learned the learned Sessions Judge/Judge Special Court (CNS) Rawalpindi and acquit the appellant of the charge leveled against him. The appellant namel y Mansoor Haider Kiyani son of Haider Zaman is directed to be released forthwith if not required in any order case.
17. The case property shall be dealt with as directed by the learned trial Court. The record of the learned trial Court be sent down immediately .