FAHIM AHMED SIDDIQUI, J.---The appellant, through the instant Criminal Appeal has assailed the conviction judgment dated 10.10.2018, passed by learned Sessions/Special Judge [CNS], Hyderabad in Special Case No.55 of 2018 emanating from Crime No.37/2018 for the offence punishable under section 9(c) CNS Act, 1997, registered at Police Station Market, Hyderabad. The impugned judgment was pronounced after finding the appellant, guilty for an offence under Section 9(c) CNS Act, 1997 and convicted him to undergo R.I. for a term of three years with fine of Rs.50,000/- and in default, he will undergo simple imprisonment for two months more. The trial Court also extended the benefit of Section 382-B of Cr .P.C. to the appellant.
2. The factual matrix of the case is that on 11.03.2018, the appellant was appreh ended by SIP Waseem Khan of Police Station Market and recovered 2120 grams opium and cash amount of Rs.600/- from his possession in presence of mashirs P .C. Muhammad Sharif and P .C. Muzzafar Hussain.
3. After usual investigation, the police submitted the final report before the concerned Judicial Magistrate, who took cognizance of the offence. The learned trial Court framed the charge against the accused, who pleaded of guilty and claimed trial.
4. In order to establish their case, the prosecution examined PW-01 complainant SIP Waseem Khan [Exhibit-05], who produced roznamcha entries, mashirnama of arrest and recovery and FIR [Exhibits-05/A to 05/C respectively], PW-02 mashir P.C. Muhammad Sharif [Exhibit-06], who produced mashirnama of wardat [Exhibit-06/A] and PW-03 Investigating Officer SIP Inspector Rao Muhammad Shahid [Exhibit-07], who produced copies of roznamcha entries, letter to Laboratory and chemical report [Exhibits-07/ A to 07/E]. After closure of the side of the prosecution under the statement of DDPP/SPP for the State (Exhibit-08), the statement of the accused was recorded under Section 342, Cr.P.C. (Exhibit-09). In his statement, the accused denied all the allegations leveled against him by the prosecution and claimed his innocence.
5. Learned counsel for the appellant contends that the appellant is an innocent and he has been falsely implicated in the instant case. He points out that the police had prior information regarding availability of appellant at place of incident i.e. near Ladies Club, Hirabad, Hyderabad but despite this, neither from place of information nor from place of incident private person was associated to witness the recovery though both the places are situated in the heart of population while there are contradictions between the prosecution witnesse s. He submits that there is no previous criminal record of the appellant showing involvement of the appellant in such type of cases. He also points out that the recovered property was sent to the Chemical Examiner after delay of 03 days but the carrier of the case property towards Laboratory has not been examined to show as to whether the same was safely transmitted or not. He prays for acquittal of the appellant.
6. On the other hand, learned A.P.G. though supported the impugned judgment but could be able to justify on certain discrepancies and deficiencies in the impugned judgment.
7. We have heard the arguments advanced and have scanned the relevant record available or produced before us.
According to FIR, the complainant party during patrolling when going from Jail Road reached at Hirabad, they received spy information about the appellant standing near Ladies Club to have opium for selling but the complainant did not associate private person to see the recovery proceedings even the complainant did not associate private person to witness the recovery proceedings at the time of alleged recovery . Even the complainant during cross examination has admitted the presence of public persons at the place of incident. Though it is settled standard that judicial approach must to be conscious in dealing with the cases in which testimony rotates upon the evidence of police officials alone but we are also conscious of the fact that provis ions of Section 103, Cr.P.C. are not attracted to the cases of personal search of accused. However , where alleged recovery was made after prior information, even there is presence of private persons, hence, failure to secure independent mashirs, particularly , in case of a recovery , cannot be brushed aside lightly by the Court. Main object of Section 103, Cr.P.C. is to ensure transparency and fairness on the part of the police during course of recovery restrain false implication and diminish scope of foisting fake recoveries upon accused and the complainant only relied upon his subordinate police constables but did not associate private person to witness recovery proceedings. As far as, non-association of independent witness in the recovery proceedings is concerned, we are fortified with the cases of 'Nazir Ahmed v.
The State' [PLD 2009 Karachi 191] and 'Muhammad Khalid v. The State' [1998 PCr.LJ 808]. The prosecution has also not brought any previous criminal record of the appellant showing his involvement in such type of offences.
8. It is worth noting that during. meticulou s examination of the record and proceedings of the trial Court, we found that the Investigating Officer of the case namely SIP Rao Muhammad Shahid produced a roznamcha Entry No.49 [Exhibiti-07/C] under which the case property was sent for chemical analysis through P.C. Feroz Ahmed whereas, interestingly Chemical Report [Exhibit-07 /E] produced by Investigating Officer, shows that the case property was received by the Chemical Laboratory through P.C. Abdul Wahid, hence, the prosecution failed to explain as to. how the Carrier of the case property under roznamcha entry P.C. Feroz Ahmed was substituted to P.C. Abdul Wahid according to Chemical Report. However , both the police constables Feroz Ahmed and Abdul Wahid were not examined by the prosecution to establish as to who carried the case property at Chemical Laboratory as well as safe transmission of the same and non-examination of the bearer[s] of the recovered property from police station to the Chemical Examiner created a serious doubt regarding prosecution case. Whenever , doub t is created, its benefit goes in favour of the accused not as a concession but as his right. As per a case of Hon'ble Supreme Court reported as "Tariq Pervaiz v. The State' (1995 SCMR 1345 ), it is settled legal position that it is not necessary that there should be many circumstances to create doub t about the guilt of accused. 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 and the same is sufficient to warrant the acquittal of the accused.
9. We, in the existing position of affairs, are clear in our mind that the prosecution could not prove the case against the appellant. Consequently , the instant appeal is allowed. Appellant is acquitted of the charge by setting aside the impugned judgment. He shall be released forthwith if not required in any other custody case. Office to issue such release order .
10. In the end, we would like to point out that in the instant case while convicting and sentencing the appellant, the learned Sessions / Special Judge [CNS], Hyderabad has sentenced to the appellant i.e, imprisonment for 3 years and fine of Rs.50,000.00 or in default imprisonment for 2 months in respect of recovery of narcotic [2120 grams of opium], which is contrary to the sentencing policy i.e. R.I. for 5 years and fine of Rs.9000.00 or in default S.I. for five months, as prescribed in the case of 'Murtaza and another v. The State' [PLD 2009 Lahore 362] and same was affirmed by the Hon'ble apex Court in the case of 'Amer Zaib v. The State' [PLD 2012 SC 380]. No doubt as per provision of a case of the Hon'ble Supreme Court as State v. Mujahid Naseem Lodhi [PLD 2017 SC 671], for departure to sentencing policy is allowed but for the same purpose, reasons are required to be given in the judgment. We have noted that in the impugned judgment, no reason was given for departure to the sentencing policy , which cannot be expected from a Senior Judicial Officer. The learned Presiding Officers of the trial Courts are required to be careful in future in this respect while pronouncing conviction in the narcotic cases.
Criminal Jail Appeal stands allowed.