2001 P Cr (PLP)

S.A. RABBANI, J.‑‑‑ The appellant has been convicted, by the Special Judge (C.N.S.) Larkana under section 9(b) of Control of Narcotic Substances, Act, 1997, on the charge of possession of 1,000 grams Charas. He has been sentenced to suffer R.I. for seven years and to pay a fine of Rs.25,000. This conviction and sentence has been called in question by way of the present appeal. 2. The appellant was, allegedly, arrested by Mushtaque Ali, Excise Inspector, D.I.O., Larkana on 27‑12‑1998 at 12‑30 p.m. from Bagan Shah on Kambar Drigh Road, when the Inspector was on patrol alongwith five other Excise Officials. On that occasion 1,000 grams Charas was secured from possession of the appellant. In the charge‑sheet, only two witnesses were mentioned, in addition to the complainant/Investigating Officer, and they were Excise Constables Abdul Majeed and Sikandar Ali. The District Attorney, however, deemed it sufficient to examine only one of them. 3. Mr. Nisar Ahmed Abro, learned Advocate for the appellant, pointed out contradictions in the evidence of the two witnesses examined by the prosecution. He further submitted that no independent witness has been examined by the prosecution. The learned Advocate cited case‑law in support of his contentions, out of which Tarique Pervez v. The State 1995 SCMR 1345 has relevance and applicability in this case. In that case, it was held that for giving an accused benefit of doubt, it is not necessary that there should be many circumstances creating doubts and 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. 4. The only fact needed to be proved in this case was that the appellant was having with him the Charas, for which he has been convicted. For its proof, the prosecution examined only two witnesses who are Excise Officials. P.W. Inspector Mushtaq Ali said that they left for patrol after making an entry about it in Roznamcha, but no such entry was produced before the Court. The Charas was, allegedly, secured from the appellant at day time, at a public place, but there is no independent witness. These circumstances indicate a possibility of the case having been‑ prepared at. the Excise Office. That could have been done very conveniently. 5. Further, the statements of the two witnesses differed in description of some facts e.g. the Inspector said that Charas was weighed by Muhammad Bux. The other witness said that it was weighed by the Inspector himself. 6. The State Counsel supported the conviction and sentence but he could not show that the case was proved beyond a reasonable doubt. 7. In view of the facts and circumstances mentioned above, the prosecution case was doubtful and the appellant was entitled to the benefit of doubt. Appeal is, therefore, allowed and the conviction and sentence is set aside. Appellant stands acquitted. He should be released forthwith. H.B.T./H‑41/K??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.