By judgment dated 31-10-1994 passed by the learned VIII-Additional Sessions Judge Hudood Court, Karachi East, passed in Cr. Case No.30 of 1990, appellant Mst. Zahida Begum and her husband Abu Saeed were convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The appellant was sentenced to R.I. For three years, five stripes and a fine of Rs.5,000 and in default in the payment of fine to suffer further R.I. For six months. She was found to be in possession of 1.4.650 grams of heroin. Appellant's husband Abu Saeed was sentenced to R.I. For three years, ten stripes and a fine of Rs.5,000 and in default in the payment of fine to suffer further R.I. For six months. The present appeal has been filed only by Mst. Zahida Begum. When this appeal was received, a letter was addressed to the Jail authorities at Karachi to find out whether co-convict Abu Saeed wanted to file any appeal or not and a letter was received from the Superintendent, District Jail, Karachi, East, dated 7-11-1994 that convict Abu Saeed had not filed any appeal and declined to prefer any appeal. Learned counsel for the appellant informs that, according to his instructions, co-convict Abu Saeed has already undergone his sentence and then released.
2. I have heard Mr. Zia Ahmad Awan, learned counsel for the appellant, and Mr. Aziz-ur-Rahman, who has represented the State. With the assistance of the learned counsel, I have gone through the record.
3. In this case, the F.I.R. Was lodged on 24-12-1989 at 00-45 hours at P. S. Korangi, Karachi East, being F. I. R. No. 1223 of 1989 on the complaint of P.W.2, S.I. Asghar Baig. According to the complaint, on 23-12-1989 at about 23-30 hours, a police party headed by the complainant near 100 Quarters received spy information that a man and woman were selling heroin at ration shop in Bengali Para. The complainant, on receiving the said spy information, after arrangements of recovery witnesses, namely, Jamil Ahmad and Mazhar Abbas, went with the police party to the concerned place and apprehended the two persons and on their search 15 grams of heroin was recovered from the person of each of the two accused. The two accused were taken into custody and after completion of the investigation they were challaned. During the trial, three witnesses were examined by the prosecution, namely, P.W. 1 Abdul Ghafoor, who had formally recorded the F.I.R.; P.W.2 Mazhar Abbas, one of the two Mashirs' and P. W.3 S.I. Asghar Baig, the complainant, who was the head of the raiding party and who later on became Investigating Officer also. Reliance was placed by the prosecution on the Chemical Examiner's report dated 4-9-1994, according to which two parcels (one containing heroin recovered from Mst. Zahida Begum and the other containing heroin recovered from co---accused Abu Saeed) were received by the office of the Laboratory at Karachi on 23-7-1994 i.e. After about-five years of the recovery' in December, 1989.
The appellant denied the recovery and alleged false involvement. As observed, by the impugned judgment, the appellant as well as her husband Abu Saeed were convicted and sentenced.
4. Mr. Zia Ahmad Awan, learned counsel for the appellant, has raised several contentions in support of the present appeal. He has argued that there is violation of the provisions of section 103, Cr. P.C.
Inasmuch as two respectable persons from the locality were not associated in the recovery proceedings despite the police having sufficient time having received spy information. It was submitted that there are material contradictions and infirmities in the evidence of the two witnesses. Learned counsel for the appellant also submitted that a grave doubt arises about the prosecution case as according to the prosecution the heroin was recovered in December, 1989 and for more than 4-1/2 years, The recovered powder in a sealed parcel was kept at a place or places not known and the parcel ultimately reached the office of the Chemical Examiner in July, 1994.
5. Mr. Aziz-ur-Rahman, learned counsel for the State, concedes that the delay in the despatch of the parcel in this case being more than four and a half years and there being no explanation for such inordinate delay, a doubt is created as regards the prosecution case against the appellant, benefit whereof should go to the appellant.
6. In my view, it is not necessary in this appeal to refer to other contentions raised on behalf of the appellant and it is considered sufficient to refer to only one contention i.e. The delay of over four and a half years in sending parcel containing the alleged recovered powder to the Chemical Examiner. It has been noted that the recovery is alleged to have taken place on 23-12-1989. From the Chemical Examiner's Report it follows that the parcel containing the recovered powder was received in the office of the Chemical Examiner on 23-7-1994 i.e. More than four and a half years after the recovery. There is no explanation at all as to why this delay of four and a half years took place. This delay is so great that this by itself creates a serious doubt about the prosecution version. It is not necessary under the law that there should be several circumstances to create a doubt about the prosecution case; even one circumstance which creates reasonable doubt is sufficient to entitle the accused to an acquittal. In this context, reference can be made to a recent decision of the Supreme Court in the case of Tariq Pervaiz v. The State reported in 1995 SCM R 1345 which was also a case under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. It was observed by the Supreme Court in the said judgment as follows: -- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
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. "
7. The conviction in this case cannot be maintained. As a result, Criminal Appeal No.64-K of 1994 is allowed, the impugned judgment dated 31-10-1994 in so far as the same convict the appellant, Mst.
Zahida Begum is set aside and the appellant acquitted of the charge. The appellant is on bail from this Court. Her bail bonds are discharged.
Before parting with this judgment I consider it necessary to make some observations as regards the investigation carried out in this case. It has already been noted in the judgment that about 15 grams of heroin was recovered in December, 1989, but the powder was sent to the Chemical Examiner after over four-and-a-half years in July, 1.994. No explanation whatsoever has been (ought on record. It could not be visualized that such delay can take place in sending the article for chemical analysis. A delay for over four and a half years without any explanation whatsoever is a very sad reflection on the investigation process. A copy of this judgment may be sent to the Home Secretary, Government of Sindh for holding an inquiry in this regard promptly and placing responsibility on the concerned officials.