ABDULLAH BALOCH, J. This judgment disposes of Criminal Appeal No. (t)14/2024 filed by the appellant (convict) Jameel son 'of Hassan, against the judgment dated 20th March 2024 ("the impugned judgment") passed by learned Special Judge, CNS/Additional Sessions Judge, Turbat ("the trial Court"), whereby the appellant was convicted under Section 9(3)(c) of Control of Narcotic Substances, Act, 1997 ("the CNS Act, 1997") and sentenced to suffer imprisonment for a period of Nine (09) years R.I. with fine of Rs.80,000/- or in default thereof to further suffer Three (03) months S.I., with the benefit of Section 382-B, Cr.P.C.
2. Facts of the case are that on 18th October 2023, the complainant Sher Jan, SI, lodged FIR No.281/2023 at Police Station City Turbat, District Keck, under Section 9(1)(3)(c) of Control of Narcotic Substances, 1997 (as Amended 2022), with the averments that on the day of occurrence he along with other police officials was on patrolling duty, at about 02:00 p.m. when they reached at Danuk Link road, where found a person in suspicious condition, who on seeing the police party tried to escape, but was Overpowered. On query, he disclosed his name as Jameel of Hassan. His search was conducted which resulted into recovery of backed Charas weighing 1000 grams from the belt of his trousers, while another piece of Charas weighing 178 gram recovered from the right side pocket of accused, thus out of which 5-grams were separated for chbmical analysis and sealed in parcel Nos.1 and 2, while the remaining contraband were sealed in parcel Nos.3 and 4.
3. After completion of investigation and on receipt of Challan, the trial Court indicted the charge to appellant, who denied the same and during trial the prosecution examined five (05) witnesses.
Whereafter, the appellant was examined under Section 342, Cr.P.C. He neither recorded his statement on oath under Section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the appellant was convicted and sentenced as mentioned above in Para No. 1. Whereafter, the appellant has filed the instant appeal.
4. Heard the learned counsel for parties and perused the available record. Perusal of record reveals that it is a case of no evidence at all and the learned trial Court while delivering the impugned judgment has reached to a wrong conclusion by awarding conviction and sentence to the appellant. Anyhow, the prosecution in order to establish the charge has produced the evidence of five witnesses, who have contradicted each other on material counts. PW- 1 Zakir Ali, ASI Head Moharar, who is the Incharge of Malkhana. He received the parcels and deposited the same in Malkhana and made entries whereof in the register No. 19; this witness not only made dishonest improvement to his earlier statement, but also contradicted the statements of rest of the witnesses. During the course of cross-examination he showed his ignorance with regard to obtaining the signatures of the Investigation Officer in Register No. 19, while the perusal of register No. 19 reflects that he did not obtain the signatures of I.O, this fact was also admitted by the PW-5 (Khatir Ali) in his cross-examination No.15 that his signatures are not available in the register No.19.
He also admitted that the signatures of PW-1 in the register No.19 does not contain the date. This witness has also failed to produce the Randhari of the messenger. PW-2 Munawar Ahmed, Constable is the recovery witness of contraband, who made dishonest improvements to his earlier statement as well as contradicted his own statement during the course of cross-examination. He deposed in reply of cross No.11 that the parcel Nos. 1 and 2 were prepared at 02:30 p.m. while contrary to the same in question No.15 he stated that recovery memo.was prepared at 02:20 p.m. inside the vehicle. He admitted in his cross-examination that after preparation of Murasila the same was sent to the Police Station through Driver Shafiq ur Rehman at 03:50 p.m. whereas the FIR has been lodged at 03:15 p.m. meaning thereby the FIR has already been lodged prior to the Murasila. This witness deposed that the Investigation Officer arrived at the place of occurrence at 03:40 hours accompanying police personnel namely Faraz Ahmed and Masood Ahmed, but he did not mention the, name of driver, while in rebuttal of the same deposition the PW-4 deposed that the I.O. came to the place of occurrence in the same vehicle through which the driver transmitted the Murasila to the Police Station, who accompanied the Gunmen Niamatullah. Thus such glaring contradictions and dishonest improvements created serious dents in the case of prosecution.
5. Now adverting to the statement of the witness of safe transmission i.e. PW-3 Abdul Ghani, ASI the special messenger, who deposited the parcels for analysis in the office of chemical expert, at Quetta. This witness neither produced the Randhari nor the receipt of Laboratory of collection of FSL report, which are mandatory to be produced during the trial. It is basic rule of evidence, not one of technicality, but of substance that where written document exists, it shall be produced as being best evidence of its own contents. Under the aforementioned police rule, the seized case property is to be entered into a register and then to be kept in the store room. The safe custody of a seized case property can be established when the copy of the register of store room, is formally brought on the record of the Court. Any matter required by law to be reduced to the form of a document, no oral evidence shall be given for proof of that matter except the document itself. In this respect Article 102 of the Qanun-e-Shahadat Order-10, 1984 is reproduced as under: "102. Evidence of terms of contracts grants and other disposition of property reduced to form of document. When the terms of a contract, or of grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract,grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in, cases in which secondary evidence is admissible under the provisions herein before contained."
6. The complainant of the case namely Sher Jan, SI, appeared as PW-4, who mostly reiterated the contents of his fard-e-bayan Ex.P/4-A, but however, to some extent he derailed from his earlier statement and contradicted the case of prosecution. During the course of cross-examination he made certain admissions and contradictions to the statements of rest of PWs. He in his cross- examination showed his ignorance about the description of the place of occurrence as well as the time of writing of Murasila and the time of preparation of recovery memo. PW-5 Khatir Ali, SI is the Investigating Officer of the case, who counted the steps taken by him during the course of investigation. The I.O. during cross-examination admitted that he did not record the statement of driver, who transmitted the Murasila to the Police Station and with whom the I.O came to the place of occurrence. It is suffice to mention here that the Driver being the Member of patrolling team as well as transmitted the Murasila to the Police Station was ought be produced before the learned trial Court as witness to prove its case. The Investigation Officer also admitted in his cross- examination that he did not prepare the site map. Thus, the site plan has not been prepared, which has some significance, but in the available evidence produced, before the trial court, as mentioned above, in absence of site plan is sufficient for proof of prosecution case. Besides, in the instant, case, the whole proceedings were conducted by PW-5. (Khatir Ali, SI) in violation of the provision of section 21 of the C.N.S.A., 1997 despite the fact that there were two other police official in the rank of SI and ASI in the entire proceedings, but none of them bothered to prepare the site plan. Such conduct of the prosecution, while dealing with a heinous case, caused considerable loss to its case because neither any site plan nor any card of arrest was prepared. Had it been, the same would have been found on file to support the prosecution story. In this regard reliance is placed in a case reported in 2018 SCMR 2039, whereby the Hon'ble Supreme Court of Pakistan has held as under: "To distinguish where the directions of the legislature were imperative and where they were directory, the real question was whether a thing had been ordered by the legislature to be done and what was the consequence, if it was not done. Some rules are vital and went to the root of the matter, they could not be broken, others were only directory and a breach of them could be overlooked provided there was substantial compliance. Duty of the court was to try to unravel the real intention of the legislature. Such exercise entailed carefully attending to the scheme of the Act and then highlighting the provisions that actually embodied the real purpose and object of the Act Provision in a statute was mandatory if the omission to follow it rendered the proceedings to which it related illegal and void, while a provision was directory if its observance was not necessary to the validity of the proceedings. Some parts of a statute, thus, may be mandatory whilst others may be directory. Furthermore certain portion of a provision, obligating something to be done, may be mandatory in nature whilst another part of the same provision, may be directory, owing to the guiding legislative intent behind it. Even parts of a single provision or rule may be mandatory or directory. In another context, whether a statute or rule be termed mandatory or directory would depend upon larger public interest, nicely balanced with the precious right of the common man."
7. The reappraisal of statements of prosecution witnesses would divulge the fact that not only the same are contradictory with each other, but in order to cover up the lacunas certain dishonest improvements have also been made. Thus, the prosecution has miserably failed to substantiate the charge against the appellant beyond the shadow of reasonable doubt. The persual of impugned judgment reveals that the same is suffering from misreading, non-reading and mis- appreciation of material available on record. The above defects in the prosecution case were not considered by the learned trial Court while passing the impugned judgment. It is well settled principle of law that a wrongful conviction results into injustice, the first tragedy is to the innocent person; the second is to the victim of the offence and to society, because the real offender is not brought to justice, wrong conviction undermine the credibility of the legal system, whenever witnesses are mistaken, it is rarely because they lie or misrepresent the facts. Needless to emphasize that accused were entitled to be extended benefits of doubt as a matter of right, but the same was withheld. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts apparent from the statements of so-called eye-witnesses.
Reliance in this regard is placed on the case of "Tariq Pervaiz v. The State" 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held: "The concept of benefit of doubt to an accused is deep, rooted in our country. For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
8. The overall reappraisal of evidence establishes the fact that the prosecution has failed to prove the charge against the appellant through consistent and confidence inspiring evidence. All the o witnesses made contradictory statements with each other, which has created sufficient doubts in the case of prosecution, but the learned Court below whilst delivering the impugned judgment has failed to take into consideration the evidence in its true perspective, which resulted into passing of impugned judgment, which otherwise requires interference of this Court.
For the above reasons this appeal is allowed and the impugned judgment dated 20th March, 2024 passed by learned Special Judge, CNS/Additional Sessions Judge, Turbat is set-aside and the appellant Jameel son of Hassan, is acquitted of the charge. The appellant being in custody, shall be released forthwith, if not required in any other case.
Above are the reasons of our short order dated 26th August 2024.