FAHIM AHMED SIDDIQUI, J.---The learned Sessions Judge / Special Judge (CNS), Jamshoro has convicted the appellant in Special Case No. 68/2016 (Re: The State v. Mir Shahabuddin Shah alias Mri Shah) by passing the impugned judgment dated 4th July, 2017. The operating part of the impugned judgment is as under:- "In view of my findings in foregoing point, I came to the conclusion that prosecution has been succeeded to bring charge at home against accused beyond any reasonable doubt, but there is nothing on record that accused was previous convict. Therefore, while considering the age of accused i.e. 70-years, as mentioned in his statement under section 342, Cr.P.C., so also taking lenient view being first offender, I convicted him under section 265-H(2), Cr.P.C. and sentence for the offence under section 9(c) of CNS Act, to suffer RI for Five years and also to pay a fine of Rs.
50,000/- (fifty thousand) are in default to suffer SI for six months more. The accused is produced in custody and remanded back to jail to serve out aforesaid sentence with the benefit of section 382-B, Cr.P.C."
2. We have heard the arguments and perused the record.
3. In the instant case, the appellant, was convicted because allegedly a considerable quantity of charas was recovered from his possession. As per 'prosecution case, the alleged recovered quantity of narcotics was found in the exclusive possession of the appellant. It is the case of the prosecution that they apprehended the appellant during routine patrolling, when they placed blockade (nakabandi) at Thatta Road, near Nagina Mill and started checking vehicles. The police party stopped a car bearing No BDL-369 in which they found the appellant and underneath the driving seat as well as from the folds of appellant / accused trouser, the recovered hashish (charas). Due to non-availability of private, witnesses, the official witnesses were appointed as the marginal witness of arrest and recovery. As per prosecution case, from the possession of the appellant 2600 grams charas was recovered in shape of pieces.
4. In the instant case, it is worth noting that the mode and style of arrest and recovery is highly doubtful, As per prosecution case, police the arrest and recover was taken place from a busy road but they did not try to associate a private person to witness the arrest and recovery from the accused/appellant. We are of the view that proprietary demands that certain arrangements should be made to associate private witnesses for arrest and recovery. In this respect, we would like to take reliance from the judgment of a Division Bench of this Court reported as Khalil Ahmed v.
The State (PLD 2008 Karachi 8), wherein, the bench has observed as: "As per prosecution case, the incident occurred and mere Blue line office, Ghinti crossing of Larkana, which is apparently situated in the midst of the city, being a thickly populated area.
However, no private person from the locality was associated as witness/mashir in the case."
5. The appellant / accused in his statement under section 342, Cr.P.C. has levelled specific allegation of highhandedness and victimisation against the police, in such a situation it is necessary that the police should arrange some private witness to establish the case against the appellant. In this respect, we would like to take reliance from the judgment of a Division Bench of this Court reported as Abdul Majeed v. The State (2014 YLR 2050), wherein it is held as: "In the instant case, specific animosity and has been alleged against the police officials, therefore, it was incumbent upon the prosecution to prove its case by examining independent persons of the locality but neither the police examined any person of the locality nor accompanied any private person to witness the personal search and recovery of contraband narcotics"
6. While going through the record, we observed that the Chemical Examiner Report the Date of sending the property is left blank while the letter through which the property was sent to the Chemical Examiner was not produced during trial. This aspect creates doubt and in this peculiar circumstances of the case, the sender of the property namely PC Zulfiquar should be examined by the prosecution to clarify whether the property was in safe custody during the said transitory period. In this respect reliance may be taken from the case of Riasat Ali v. The State (2004 PCr.LJ 361). Similar view is also taken in the case of Muhammad Saleh Mallah v. The State (2016 PCr.LJ 432).
7. From the above discussion, it is evident that there are serious doubts as to the case of prosecution. It is settled law fiat even a single doubt in the prosecution story is disastrous for the prosecution case and its benefit must go to the accused. In this respect, we would like to take reliance from a case of Apex Court reported as Tariq Pervez v. The State (1995 SCMR 1345) wherein it is held as: The concept of benefit of doubt to an accused person is deep rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a 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."
As per the above referred case-law only one doubt is sufficient to disbelieve the case of prosecution but in the present case, there are series of circumstances creating doubts and under the settled principle of criminal justice, the benefit of the doubt goes to the present appellant.
8. The ultimate and ensuing result of the entire discussion is that we are unable to agree with the verdict and decision reached at by the learned trial Court and the same cannot be maintained due to the above referred serious defects in the prosecution case. Resultantly, the judgment of the learned trial Court is set aside, and the appellant is acquitted of the offences for which he has been charged vide our short order dated 28-09-2017 and these are the reasons for the same.