By judgment dated, 17th April, 1995, passed by the learned Vth Additional Sessions Judge, Karachi South, in Sessions Case No.261 of 1993, appellant Sakhi Rehmatullah son of Muhammad Yousaf has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to R.I. For 4 years, 5 stripes and a fine of Rs.10,000 and in default in the payment of fine to suffer further R.I. For 3 months. Benefit of section 382-B, Cr. P.C. Has been extended to him. Being aggrieved, this has been filed by the appellant. I have heard the arguments of Mr. Muhammad Saleh G. Memon, learned counsel for the appellant and Mr. Habibur Rasheed, learned counsel for the State. With the assistance of the learned counsel, I have gone through the record.
2. The prosecution case in brief has been given in para. 2 of the impugned, judgment which is reproduced here: -- "The brief facts are that A.S.I. Javaid Baloch alongwith other police staff was patrolling the area on 22-6-1993 when he received spy information that one person is selling heroin in Agshani Gali, A.S.I.
Alongwith police staff reached and saw that present accused was present in the street and he detained him and took his personal search and recovered 200 grin. Heroin which was contained in 200 Puris and Rs.100 cash was also recovered by the police and such Mashirnama was prepared and the said A.S.I. Sealed the heroin on the spot and came at P.S. Where he lodged the F.I.R. Heroin was sent to the chemical examiner and report was received showing that net weight of heroin powder without wrapper was 21.190 grin. After necessary investigation challan was submitted in the Court. "
There is apparently a typographical error in the aforesaid para. Of the impugned judgment about the recovery. In the F.I.R., the weight of the heroin powder recovered is mentioned as 100 grams and not 200 grams, as wrongly noted. During the trial, only two witnesses were examined by the prosecution, namely, P.W. 1 Muhammad Aslam in whose presence the recovery was made and P.W.
2 A.S.I. Javaid Baloch, the seizing officer, the complainant and who later on became the Investigating Officer also. In 'his statement recorded under section 342, Cr.P.C., the appellant denied the prosecution case stating that it was false. He also gave his statement on oath. One defence witness was examined, namely, D.W.1 Salim son of Noor Muhammad, who stated that the police had arrestgd the appellant in his presence and nothing illegal was secured from him. As observed, the prosecution case was believed and the appellant was convicted and sentenced as above.
3. In this case, there is a major discrepancy about the recovery of heroin. As noted, the case of the prosecution is that, on his personal search, 200 Puris containing 100 grams of heroin were recovered from the appellant and this is also the evidence of the seizing officer. The Mashirnama is also to the above effect, which is signed by the two witnesses also. The entire case of the prosecution is that 100 grams of heroin had been recovered. However, the chemical examiner's report shows the gross weight of 200 Puris including the contents as 91.170 grams and net weight of the entire powder without wrappers is given as 21.190 grams. This striking discrepancy has not been explained. This unexplained material discrepancy in the recovery creates a serious doubt as to what was recovered from the appellant and what property was sent to .The Chemical Examiner for chemical analysis. Benefit of this doubt goes to the' accused. In a recent decision of the Supreme Court in the case of Tariq Pervaiz' v. The State (1995 SCM R 1345) it has been observed that 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".
Mr. Habib-ur-Rasheed, learned counsel for the State, does not support the judgment and concedes that this is a case for acquittal.
4. As reasonable doubt has been created as regards the prosecution case against the appellant benefit whereof has to go to the appellant, Criminal Appeal No.28-K of 1995 is allowed, the impugned judgment dated 17-4-1995, passed by the learned Vth Additional Sessions Judge, Karachi South is set aside and appellant Sakhi Rehmatullah is acquitted of the charge. It is directed that the appellant be released forthwith if not required in any other case.