CH. ABDUL AZIZ, J.---Zeeshan Irshad (appellant) involved in case FIR No.569/2017 dated 28.11.2017 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "CNS Act, 1997 ") at Police Station Saddar Wah, was tried by learned Additional Sessions Judge, Taxila. The learned trial court vide judgment dated 29.03.2018 proceeded to convict and sentence the appellant in the following terms:- "Under section 9(c) of CNS Act, 1997 to suffer rigorous imprisonment for 03-years with fine of Rs.18000/- and in default whereof to further undergo SI for 04-months and 17-days. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.
Challenging his conviction and sentence, the appellant filed the instant appeal.
2. Briefly stated the facts of the prosecutio n case as unveiled by Mohsin Hayat SI (PW.3) in FIR (Exh.PB) are to the effect that on 28.11.2017 at about 11:45 p.m. he along with Nazakat Khan 5544/HC, Pervaiz 635/C, Salah 3916/C was present at Malakand stop in connection with patrolling and checking of suspects; that meanwhile Zeeshan Irshad (appellant) came from side of Pind Malhi Road and on seeing the police party turned back; that upon suspicion the police party apprehended Zeeshan Irshad (appellant) and from the right colour shopping bag in his right hand Charas weighing 1300 grams was recovered, out of which 65 grams were separated for chemical analysis. Thereafter he drafted complaint (Exit,l'A) and sent it to the police station through Nazakat Khan 5544/C for the registration of formal FIR.
3. Investigation of this case was conducted by Shafique ul Hussnain SI (PW.5), who prepared rough site plan of the place of recovery (Exh.PE), record ed the statements of witnesses under section 161, Cr.P.C. and after complying with legal formalities prepared report under section 173, Cr.P.C. Before the trial court, prosecution in order to prove its case against the appe llant produced five PWs, namely , Kaleem Akhtar 2104/HC (PW.1) who was serving as Moharrar/station clerk at the relevant time, Zulfiqar Hussain Shah SI (PW.2) who chalked out the formal FIR (Exh.PB), Mohsin Hayat SI (PW.3) and Pervaiz 635/C (PW.4), who are witnesses of recovery and Shafique ul Hussnain SI (PW.5) who conducted the investigation of this case. After the conclusion of prosecution evidence, the learned trial court also examined the appellant under section 342, Cr.P.C. during which he was asked the questions arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and involvement in the case. Though appellant made statement under section 340(2) of Cr.P.C., however , produced no other evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant appeal.
4. It is contended by learned counsel for the appellant that the prosecution case from the face of it appears to be dubious in nature; that though as per allegation, 1300 grams of Charas was recovered from the appellant, however , during trial prosecution miserably failed to prove such recovery; that though the alleged recovery of Charas was effected from a public place, however , none from the vicinity was produced as witness during trial; that the recovery witnesses contradicted each other on all material aspects which rendered their testimony unworthy of any credence; that though reasonable doubt emerges from the recital of prosecution evidence, however , its benefit was not extended to appellant. With these submissions, it is prayed that conviction awarded to the appellant be set- aside.
5. On the other hand, learned Deputy Prosecutor General strongly controverted the arguments advanced on behalf of the appellant and submitted that reasonable quantity of Charas was recovered from the appellant for which he failed to give any explanation; that there was no reason for the police officials to falsely plant such quantity of Charas on an innocent persons; that during trial the detail of recovery proceedings was successfully narrated by the prosecution witnesses; that despite lengthy cross-examination, the defence failed to get any benefit from the prosecution witnesses and that in the given circumstances, the conviction awarded to the appellant needs no interference.
6. Arguments heard. Record perused.
7. It unfolds from the examination of the record that on 28.11.2017 at about 11:45 p.m. Mohsin Hayat SI (PW.3) along with other police officials was present at Malakand Stop in connection with patrolling duty when Zeeshan Irshad (appellant) reached there and from the shopping bag in his right hand Charas weighing 1300 grams was recovered.
8. At the very outset, it is noticed that trial court while framing charge against the appellant mentioned the date of recovery of Charas from the appellant as 27.11.2017, whereas both the recovery witnesses i.e. Mohsin Hayat SI (PW.3) and Pervaiz 635/C (PW.4) when appeared before the trial court deposed that the recovery of Charas from the appellant was effected on 28.11.2017 . Likewise, during their cross-examination, both the recovery witnesses denied the suggestion that appellant was taken into custody on 27.11.2017 at about 11:45 p.m. The foregoing anomaly gains more importance when seen in the context that even in the crime report the recovery was stated to have been effected on 27.11.2017 at about 11:45 p.m. Though learned Prosecuto r attributed the afore-mentioned shortcoming to a mistake of witnesses made during trial but we are not swayed to accept such submission. Had the wrong date been outcome of inadvertenc e then the prosecution at least should have made some effort to get it rectified through some application under section 540, Cr.P.C. Admittedly , no such effort was made during trial, thus inevitably this lacuna regarding the date of occurrence has shattered the case of the present.
9. We have also noticed that both the recovery witnesses while appearing in the dock unanimously deposed that out of the recovered substance, 65 grams were separated for chemical analysis. However , according to the report of PFSA (Exh.PF), the weight of the sample parcel was 69.90 grams. From this anomaly , we feel no hesitation in holding that apparently the parcel sent for chemical analysis, was not the representative sample of the recovered Charas.
10. There is no cavil to the proposition that for securing conviction, the prosecu tion case must not suffer from infirmities and the guilt of accused is required to be proved beyond scintilla of doub t. If any doubt emerges from the prosecution case, there is no reason to withhold its benefit on the ground that the case is of heinous nature.
According to golden principles laid down for the appraisal of evidence, the benefit of every reasonable doubt is to be extended to the accused which can best be provided through the judgment of acquittal. As per saying of the Holy Prophet (P.B.U.H.), the mistake in releasing a criminal is better than punishing an innocent person. Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The State (PLD 2002 SC 1048 ), wherein, it was observed as under:- ".... 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 "mist ake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." In supra mentioned case of Ayub Masih, the Hon'ble Supreme Court was also pleased to observe as under:- "...The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence 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 person be convicted"..."
11. For the foregoing reasons, we accept Criminal Appeal No.499 of 2018 filed by Zeeshan (appellant); his conviction and sentence is set aside and he stands acquitted of the charge by- extending benefit of doubt in his favour . He is in custody; be released forthwith if not required to be detained in any other criminal case.