MUHAMMAD TARIQ ABBASI, J.---Tariq Mehmood (hereinafter referred to as the appellan t), has challenged the judgment dated 25.09.2017, passed by the learned Sessions Judge/Judge CNS, Chakwal, whereby in case FIR No. 88, dated 22.04.2017, registered under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as the Act), at Police Station Saddar District Chakwal, he was convicted under section 9(c) of the Act and sentenced to R.I. for 06 years, along with fine of Rs.30,000 /-, in default whereof to further undergo S.I. for 06 months, with benefit of section 382-B, C r . P. C.
2. The appellant was challaned to the Court, with the precise charge of recovery of 1110 grams of Heroin from his possession. He had denied the charge and claimed the trial, hence the prosecution witnesses namely Muhammad Adeel Safdar ASI (PW-1), Muhammad Saleem Constable (PW-2), Muhammad Shafique H.C. (PW-3), Muhammad Husnain Shah S.I. (PW -4) and Gulzar Hussain S.I. (PW -5) were summoned and recorded.
3. On completion of the prosecution evidence and closure of the case, the appellant was examined under section 342, Cr.P.C., during which the questions arising out of the prosecution evidence, were put to him but he had denied almost all such questions, while pleading his innocence and false involvement, in the case with mala fide. He did not opt to lead any evidence in his defence or to make statement under section 340(2), Cr.P.C. Finally , the impugned judgment was passed, in the above mentioned terms. Consequently , the appeal in hand.
4. Arguments heard. Record perused.
5. The prosecution stance was that out of recovered narcotic weighing 1110 grams, Gulzar Hussain S.I. (PW-5) separated 60 grams as sample and while preparing two sealed parcels, one of the sample and other of the remaining quantity had taken the same into possession, through a recovery memo; PW-5 subsequently had handed over the above said parcels to Muhanimad Hasnain Shah S.I/I.0 (PW-4), who had deposited them with Muhammad Saleem Moharrar (PW -2).
6. Gulzar Hussain S.I/complainant during his statement as PW -5 deposed as under:- "I did not take shopping bag of white colour separately into possession. Volunteered, said Heroin was packed in said shopping bag, which remained pack ed in the shopping bag and we did not take Heroin out of it. Complaint Exh.P .4/1 is in my handwriting. It is corre ct that it is mentioned in complaint that "sample and remaining Charas were made into two separate parcels and were sealed with". V olunteered, mistakenly it is so written."
The above said deposition of the PW-5 means that his stance in the complaint Exh.P A/1, regarding preparation of two sealed parcels, one of the sample and the other of the remaining quantity was incorrect.
7. Muhammad Saleem Moharrar (PW-2) had admitted that in his previous statement under section 161, Cr.P.C.
(Exh.DA), it was not mentioned that two sealed parcels were delivered to him and that in the said statement the word "Heroin" was written after cutting the word "Charas" and that there was cutting of date from 22.04.2017 to 24.04.2017.
8. Muhammad Husnain Shah S.I/I.O. during statement before the learned trial Court as PW-4, had made the following admissions-- "It is correct that I was duty bound to record the statement of Morarrar regarding every article or parcel which I had handed over to him. It is correct that I have not mentioned in any statement that I handed over the parcel of remaining recovered Heroin to Moharrir ,"
9. The facts and circumstances highlighted above, lead to the conclusion that the prosecution case and the charge against the appellant could not be proved beyond shadow of all reasonable doubts. In such like situation an accused is always entitled for due benefit of acquittal not as a matter of grace or concession but as a right. In this regard, we are fortified by the dictum laid down by the august Supreme Court of Pakistan in cases titled Ayub Masih v. The State reported as (PLD 2002 Supreme Court 1048) and Tariq Pervez v. The State reported as 1995 SCMR 1345 , wherein it is held that if a simple circums tance creates reasonable doubt in a prudent mind about guilt of an accused, then he will be entitled to such benefit not as a matter of grace or concession, but as of right. In the case of Ayub Masih (Supra), while quoting a saying of the Holy Prophet (PBUH) 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent', and making reference to the maxim, 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the Hon'ble Supreme Court observed as under:- "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable' and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule, of prucence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent persons be convicted". In, simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h.) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
10. Resultantly , the instant appeal is accepted , the impugned judgment is set-aside and the appellant, namely , Tariq Mehmood is acquitted of the charge, while extending him the benefit of doubt. The appellant is in custody , hence be released forthwith, if not required to be detained in any other case. The disposal of the case property shall be as directed by the learned trial Court, in the impugned judgment. 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.