' CH. IFTIKHAR HUSSAIN, J.--- Tahir Nadeem, the appellant through the instant appeal has assailed his conviction and sentence in case F.I.R. No,79, dated, 13-2-1996, under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order IV of 1979 and section-9(c) of C.N.S. Ordinance, 1995 with Police Station City Khanewal vide the judgment, dated 5-4-2002 recorded by Khawaja Muhammad Zafar Iqbal, the learned Additional Sessions Judge, Khanewal.
2. Briefly the facts -relevant for the disposal of the same are that the appellant Tahir Nadeem was challaned to the Court in the above mentioned case to face trial under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order IV of 1979 and section 9(c) C.N.S. Ordinance, 1995. The allegation against him as contained in the F.I.R. Exh.P.A./1 is that on 13-2-1996 at about 7-00 p.m. On a raid upon him by the police party he fled away from Nai Tehsil within the area of Police Station City Khanewal while throwing away the black colour shopper containing one Kg. And 25 grams opium.
3. He was formally charged under section 9(c) of C.N.S. Ordinance, 1995. He pleaded not guilty:
4. Prosecution at his trial has examined its' as many as five witnesses. They are Ashiq Hussain, H.C., (P.W.1), Khalid Mehmood, Constable (P.W.2), Riaz Ahmad, S.-I. (P.W.3), Shauq Muhammad, Head Constable (P.W.4) and Muhammad Rafique, Retired, A.S.-I. (P.W.5).
5. The report of Chemical Examiner Exh.P.D. Was submitted in evidence.
6. He in his examination under section 342, Cr.P.C. Denied the allegation against him in the prosecution evidence. He termed the report of Chemical Examiner Exh.P.p. To be fake and manoeuvred. He with the same pleaded innocence. He in his defence produced documents Exh.D.A. To Exh.D.E. He however, did not opt to depose on oath in disproof of the allegation appearing against him in the prosecution evidence.
7. The learned trial Court after hearing the parties came to the conclusion that the prosecution stood succeeded in bringing home the guilt to him. It with the same has convicted him' under section 9(c), C.N.S. Ordinance VI of 1995, and sentenced him to life imprisonment and fine of Rs,10,00,000 (Rupees ten lacs).
8. He feeling aggrieved of the impugned judgment of his conviction and sentence has challenged the same by way of the instant appeal.
9. His learned counsel has vehemently argued that the question of his identity in the instant case has remained unproved beyond any shadow of reasonable doubt; and that the malice on the part of Riaz Ahmad, S.-1. (P.W.3) against him has apparently been established on record and hence his conviction and sentence is not liable to be sustained.
10. As against the same, the learned State Counsel has supported the impugned judgment saying that the question of identity of the appellant stands proved on record from the prosecution evidence; and that there had not been proved any mala fide on the part of Riaz Ahmed, S.-I. (P.W.3) against him (appellant).
11. We have considered the submissions made from both the sides with the help of available record.
12. As said above that the prosecution has relied upon the evidence of aforementioned five witnesses in the case against him. Ashiq Hussain (P.W.1) has recorded formal F.I.R. Exh.P.A./1 in this case. He has also deposed about the safe custody and despatch of two sealed parcels pertaining to this case to the office of Chemical Examiner, Multan. Khalid Mehmood, Constable (P.W.2) has also deposed about the safe custody and despatch of sealed parcel of sample of opium to the said office. Riaz Ahmad, S.-I. (P.W.3) has deposed about the recovery of opium weighing one Kg.
And 25 grams from him and his investigation. Shauq Muhammad, H.C. (P.W.4) is also a recovery witness of opium in the abovesaid quantity from him (appellant). He is attesting witness of recovery memo. Exh.P.B. In that regard. He had also deposed that he had raided the house of the appellant to arrest him but he was not available there: Muhammad Rafique, Retired Assistant Sub- Inspector (P.W.5) is witness of recovery of opium in the said quantity by him (appellant).
13. P.W.3 to P.W.5 have deposed about the recovery of opium in the above quantity from him (appellant). But the question of his identity in their evidence has remained not proved above doubt.
14. The allegation of the prosecution as has appeared in the evidence is that one Munawar Hussain Abid was in custody with the police in connection with the investigation of the case F.I.R. No,78 of 1998. He during his interrogation disclosed that he had purchased Charas from him (appellant) and on his pointation the police raided on him and he on seeing the police party fled away from the scene while throwing away black colour shopper containing one Kg. And 25 grams opium. It may be interesting to note that he (appellant) has produced document Exh.D.A. In his defence. The same was produced before the learned Sessions Judge, Khanewal on 23-6-1996 in his bail petition.
The statement of Munawar Hussain Abid was recorded in the same. It was to the effect that he never named the appellant (Tahir Nadeem) before the police and that he has no concern with him (Tahir Nadeem).
15. As said above that it is the case of the prosecution that he on seeing the police party had fled away from the scene while throwing away black colour shopper containing such quantity of opium and thus was not apprehended at the spot. The above said narcotics was not recovered from his possession. According to Riaz Ahmad, (P.W.3)/Investigating Officer, the appellant ran away after throwing away shopper when he raided on him on 13-2-1996 at about 7-00 a.m. He during the cross-examination has admitted that in those days the sun had set about 5-30 p.m. Thus, the said occurrence of throwing away of the shopper by the appellant as per showing of this witness was about 1-1/2 hours after the sunset. It was winter season. The darkness definitely had prevailed at such hours of the night. It may be mentioned here that P.W.4 Shauq, H.C. Has clearly admitted in the cross-examination that there was darkness at that time. He has also admitted that he could not identify the accused (appellant), when he ran away from the spot. He according to his showing was with the raiding party. He when had not been able to identify him (appellant), then it is doubtful that P.W.3 had identified him at the spot. Almost similar is the position of Muhammad Rafique, Retired A.S.-I. (P.W.5). He in the cross-examination has admitted that he does not remember the colour of clothes of the accused which he was wearing at that time of the occurrence, as it was dark then. He has also stated in the cross-examination that the Investigating Officer weighed the opium in the Awan Chowk in the light of bulb. He has also stated that he did not know Tahir Nadeem (appellant) personally. These police officials when did not know him (appellant) personally and they had seen him running away in the darkness of the night then their identifying in that condition was not probable. Hence, the question of his identity has heavily remained not above doubt. This fact alone entitles him to acquittal due to benefit of doubt.
16. We may mention here that the prosecution had to prove its' case against him beyond any shadow of reasonable doubt while it has failed in the same. The benefit of every doubt, howsoever, slightest it may be is to be given to the accused. We, therefore, do not feel the necessity of discussing other aspect of the prosecution case. As the above fact alone has shaken our belief about his guilt. We, therefore, accept this appeal, set aside the impugned judgtinent of his conviction and sentence and acquit him of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not required in any other case.