RASHEED AHMED SOOMRO J.---Through this appeal, appellant Samano son of Allahdino Kanrani has challenged the judgment dated 14.05.2019. passed by the learned 1st Additional Sessions Judge/Model Criminal Trial Court, Jacobabad, in CNS Case No.28 of 2017 re-State v. Samano Kanrani, being outcome of Crime No.63/2017, registered at Police Station A/C Section, Thul, District Jacobabad, whereby the appellant was convicted for offence under Section 9(c), Control of Narcotic Substances Act, 1997 and sentenced to suffer rigorous imprisonment for 01 year and 09 months and also to pay fine of Rs.9,000/- (Rupees nine thousand only), in case of default in payment of fine to undergo simple imprisonment for 04 months and 15 days more, with benefit of Section 382-B, Cr .P.C.
2. The facts of the prosecution case are that on 04.05.2017, at 1230 hours. complainant SIP/SHO Shamsuddin Khokhar lodged FIR at Police Station A/C-Section, Thul, stating therein that on 04.05.2017 he along with his subordinate staff left PS for patrolling and during-patrolling when at about 1130 hours they reached at Ali Shah bridge situated in Deh Sher Wah, Taluka Thul, District Jacobabad, where they saw two persons standing and waiting for conveyance. One of those persons was holding a black colour Thelhi, who on seeing police mobile tried to run. The complainant party got stopped the vehicle and tried to apprehend both persons, but they run towards northern side. The complainant party followed them and at the distance of 100 paces they apprehended one person having 'Thelhi' in his hand, while the other person made his escape good . The complainant took 'Thelhi' from apprehended person in his custody and on enquiry said person disclosed his name as Samano son of Allahdino Kanrani, resident of Village Balouchan Kanrani, Taluka Thul and for the person who fled away from the scene of offence the apprehended person disclosed his name as Noor Hassan alias Nooro son of Ahmed Kanrani.
The complainant opened 'Thelhi' and found 27 pieces/rods and other in shape of broken condition of charas. The complainant weighed the recovered charas, which became 1200 grams. The complainant secured and sealed the recovered charas at the spot and prepared such memo of arrest and recovery in presence of mashirs PC Mukhtiar Ahmed and PC Jalaluddin at the spot and then they brought the arrested accused and recovered property at PS C/Section. Thul, where complainant lodged such FIR against the accused on behalf of State.
3. The charge against the accused/appell ant was framed at Ex.7. to which he pleaded 'not guilty' and claimed to be tried vide his plea at Ex.7/A.
4. To prove the charge against the appellant/accused, prosecution examined PW-1 mashir PC Mukhtiar Ahmed at Ex.8, who produced mashirnama of arrest and recovery at Ex.8/A. Then PW-2 complainant SIP Shamsuddin Khokhar was examined at Ex.10. who produced FIR, roznamcha entries and chemi cal examiner's report at Ex.10-A to 10-C and then prosecution side was closed at Ex.1 1.
5. In his statement under Section 342. Cr.P.C (Ex.12). the appellant/accused denied the prosecution allegations, professed his innocence and-claimed to have been falsely implicated in this case by the police at the instance of local zamindar Raja Khan Kanrani on account of dispute over harap transaction. However , neither did he examine himself on oath under Section 340(2), Cr .P.C. nor examined any witness in his defence.
6. After formulating the points for determination, recording evidence of the prosec ution witnesses and hearing the parties, the learned trial Court convicted and sentenced the appellant vide impugned judgment, as stated above, which has been challenged by the appellant through instant appeal.
7. Learned Counsel for the appellant, inter alia, contended that the appellant is innocent and the charas has been foisted upon him by the police at the instance of local zamindar , namely , Raja Khan Kanrani, with whom the appellant had dispute over harap transaction; that though the alleged recovery was made in daytime at a busy public place, but even no independent person was cited as witness; that the mashir of recovery is subordinate to the complainant, therefore, he is highly interested witness; that complainant himself acted as investigating officer of the case; that the sample though recovered on 04.5.2017 was sent to the chemical examiner on 09.05.2017 i.e. with the delay of 05 days; that neither incharge 'Malkhana', in whose custody the sample was allegedly lying, was examined at trig nor any entry to that effect was produced at trial. Lastly , learn ed Counsel submitted that the complainant and mashir in their evidence have contradicted each other on material aspects, therefore, the prosecution case is highly doubtful. He, therefore, prayed that the appellant/ accused may be acquitted by extending benefit of doubt. In support of his contentions, learned Counsel has relied upon the cases reported as Abdul Ghani v. The State (2019 SCMR 608), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ) and Ikramullah and others v . The State (2015 SCMR 1002 ).
8. Contrarily , learned DPG supported the impugned judgment and contended that the PWs examined during trial have fully supported the prosecution case. He next submitted that no mala fide is shown by the appellant against the police officials to implicate him falsely . He lastly contended that the learned trial Court has rightly convicted the appellant, therefore, impugned judgment may be maintained.
9. We have heard learned Counsel for the appellant as well as learned DPG for the State and have perused the material available on record.
10. It needs no reiteration that it is the primary obligation of the prosecution to prove its case beyond reasonable doubt and its burden is not shifted under the presumption contained in section 29 of the Control of Narcotic Substances Act. 1997. It only says that once the prosecution establishes recovery beyond shadow of doubt, it is then that the burden is shifted. Section 29 of the Control of Narcotic Substances Act, 1997 does not absolve the prosecution of its primary duty to prove its case beyond doubt. Reliance can be placed on the case of Saeed Muhammad Shah v . The State (1993 SCMR 550 )
11. In the present case, the recovery of contraband/charas as per prosecution case is 1200 grams from the appellant, which was made on 04.05.2019 at the Ali Shah Bridge and entire recovered charas weighing 1200 grams was sealed on the same date, but as per Chemical Examiner's report the same were dispatched on 08.05.2018 i.e. on the fourth day of recov ery, whereas the same were received in the Laboratory on 09.05.2018 i.e. on the fifth day of recovery . The compla inant in this context in cross-examination has stated that he kept the recovered charas in Malkhana through WHC of PS, but neither the incharge of Malkhana was examined at trial nor such entry of keeping the property in Malkhana was placed on record, which makes the recovery highly doubtful.
Even the official, namely , PC Faiz Mohammad, through whom the sample was sent to the laboratory was not examined during trial. The Hon'ble Supr eme Court in the case of Abdul Ghani (supra), relied upon by learned Counsel for the appellant, has been pleased to observe as under:- "2. There is hardly any occasion for discu ssing the merits of the case against the appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this case. Nisar Ahmed, S.I. /SHO complainant (PW-1) had stated before the trial Court that he had deposited the recovered substance at the Malkhana of the local Police Station but admittedly the Moharrir of the said Police Station had not been produced before the trial Court to depose about safe custody of the recovered substance. It is also not denied that Ali Sher, H. C. who had delivered the samples of the recovere d substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance. It has already been clarified by this Court in the cases of The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039 ). Ikramullah and others v. The State (2015 SCMR 1002 ) and Amjad Ali v. The State (2012 SCMR 577) that in a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through independent evidence there it cannot be concluded that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt."
12. Apart from the above, there are numerous material contradictions in the evidence of complainant SIP Shamsuddin Khokhar and mashir PC Mukhtiar Ahmed Nindwani. It is the case of prosecution that charas in shape of 27 rods and other pieces in broken condition were recovered from the accuse d/appellant, but the mashir PC Mukhtiar Ahmed in his examination-in-chief has only deposed about 27 pieces of charas and not about broken pieces thereof. Complainant in cross-examination has stated that: "Firstly we patrolled one village belonging to Soomra community and also patrolled at different curves nearby the villages but I do not remember the names of those villages and then went to the place of arrest and recovery . On the other hand, mashir PC Mukhtiar Ahmed in cross-examination has stated that: "After leaving PS we went towards village Juma Dakhan, then came at Ali Shah Bridge ." We have also noted overwriting in the time of preparation of memo of arrest and recovery . In this context, complainant in cross-examination also admitted that there is overwriting in the time mentioned as 1215 hours over the memo of arrest and recovery .
13. The above-noted contradictions clearly indicate that the complainant SIP Shamsuddin Khokhar and mashir PC Mukhtiar Ahmed Nindwani were not the true eye-witnesses of the incident and no such incident of arrest of accused and recovery of charas from the possession of appellant had occurred. Taking notice of the contradictions in the evidence of complai nant SIP Shamsuddin Khokhar and mashir PC Mukhtiar Ahmed, we are clear in our mind that the prosecution failed to prove its case against the appellan t beyond shadow of reasonable doubt and the recovery has not been satisfactorily proved. Both the witnesses contradicted each other on material aspects of the case. No implicit reliance can be placed in view of aforesaid contradictions on the evidence of prosecution witnesses. Reliance in this context is placed on the case of Muhammad Akram v. The State (2009 SCMR 230 ), wherein Hon'ble Supreme Court of Pakistan has held as under: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reaso nable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the bene fit of doubt not as a matter of grace and concession but as a matter of right."
14. After having analyzed the entire case, we are of the considered view that prosecution has failed to prove its case against the appellant beyond reasonable doubt, so we while extending the benefit of doubt to the appellant had accepted this appeal by a short order dated 29.05.2019, whereby the conviction and sentence recorded against the appellant vide impugned judgment dated 14.05.2019 passed in CNS Case No.28/2017 by the learned 1st Additional Sessions Judge/Model Criminal Trial Court Jacobabad, were set aside and appellant/accused Samano Kanrani was acquitted of the charge. Above are the detailed reasons of such short order .