MUHAMMAD HASHIM KHAN KAKAR, ACJ. The appellant, Ghulam Hussain alias Guloo son of Muhammad Hashim was booked in Crime No.42/2023 registered with Police Station Uthal on 11.06.2023, in respect of offences under Section 9(1)/(3)/(c) of the Control of Narcotic Substances Act, 1997 ("CNS Act, 1997") and after regular trial he was convicted by learned Special Judge CNSA/Sessions Judge Lasbela at Uthal ("trial Court") under section 9 (1) (3) (c) of CNS Act, 1997 and sentenced for a period of 09 years R.I. with fine of Rs.50,000/- and in default thereof to suffer S.I. for one month, while extending benefit of section 382-B Cr.P.C. in his favour.
2. We have heard Ms. Noreen Fatima, Advocate learned counsel for the pauper appellant, Mr. Muhammad Younas Mengal, learned Additional Prosecutor General (APG) and also perused the available record with their valuable assistance.
3. It is by now settled that stringent punishments require very strong and confidence-inspiring evidence to prove the case against the accused. This principle is a cornerstone of criminal justice that value fairness, justice and protection of human rights. The requirement for strong evidence aims to minimize wrongful convictions.
4. After considering. the prosecution evidence in the light of, above principle, we have straightaway observed that the prosecution has failed to prove its case against the pauper appellant for a number of reasons:
(i) Firstly, as per contents of FIR, Ghulam Hussain alias Gullo, was apprehended from B and R Chowk and 1085 grams of hashish (charas) was recovered as a result of body search; in murasila, 1185 grams whereas as per statement of PW-4 Muhammad Zahid, who happened to be Investigating Officer of the case 185 grams charas was recovered from the appellant which creates serious doubt in the prosecution case;
(ii) According to prosecution case, the appellant was apprehended on prior spy information by the police party during patrolling from hub of the city i.e. B and R Chowk, being a thickly populated area, when he was selling hashish, but the complainant did not associate any person to act as musheer and witness to the recovery proceedings. He also did not try to associate private person to witness the alleged recovery at the time of receiving spy information, We are conscious of the fact that the provisions of section 103, Cr.P.C are not attracted to the cases of personal search of accused, however, in case of prior information, failure to secure independent witnesses, particularly, in case of a recovery, cannot be brushed aside lightly by the Court.
(iii) We are conscious of the fact, as stated above, that section 25 of the Act exclude the applicability of section 103 of the Code of Criminal Procedure, 1898 which requires two or more respectable inhabitants of the locality to be associated when search is made, however, we fail to understand why the complainant or any other member of the raiding party did not photograph or made a video recording during the whole episode of alleged recovery within the purview of section 164 of the Qanoon-e-Shahadat Order, 1984.
(iv) There is another material aspect of the case, which has been over sighted by the learned trial Court i.e. selling charas by the appellant. The appellant was allegedly selling charas but no purchaser was present at the alleged time of sale of charas because no statement of the purchaser seems to have been recorded and sale money has also not been recovered from the appellant at the time of arrest by the investigation officer, as such the allegation seems to be fallacious.
5. For the aforesaid discussion, it is evident that there are serious doubts to the case of prosecution.
It is settled law that even a single doubt in the prosecution story is disastrous for the prosecution case and its benefit must go to the accused.
6. Under the circumstances, the case of the prosecution appeared not to be free from doubt.
Consequently, the instant appeal was allowed vide our short order dated 20.03.2024 and the appellant was acquitted from the charge by setting aside the impugned judgment and the appellant was ordered to be released forthwith if not required in any other case.
Above are the reasons for our short order dated 20.03.2024.