2020 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

The appellant has questioned the verdict of he Additional Sessions Judge-I/Special Judge (CNS), Hyderabad, who has convicted the appellant in Special Case No.173/2015 by passing the impugned judgment dated 18th September, 2014. The operating part of the impugned judgment is as under:- "In view of the above discussion, I am of the irresistible conclusion that the prosecution has reached home by proving its version beyond any reasonable doubt. I find that the prosecution witnesses have fully supported and corroborated the version of the prosecution and their evidence that ring the truth. Hence I convicted accused Basharat Hussain Shah son of Bakhtawar Shah by caste Mughal Pathan under section 265-H(ii), Cr.P.C. for the offence punishable under sections 6, 9(c), C.N.S. Act, 1997 to suffer Rigourous Imprisonment for the period of Five (05) years and Six-months, and to pay fine Rs. 25,000/-. In case of default in payment of fine Rs. 25,000/-, the accused named above shall further suffer Simple Imprisonment for the period of Five (05) months and Fifteen (15) days. However, the benefit of section 382-B, Cr.P.C. is also extended to the accused named above."

2. We have heard the arguments and perused the record.

3. In the instant case, the appellant, was convicted because allegedly a considerable quantity of hashish (charas) was recovered from his possession. As per prosecution case, the alleged recovered quantity of narcotics was found in the exclusive possession of the appellant. It is the case of the prosecution that the police apprehended the appellant on the tip of information that one person is trying to commit offence under section 9(c) of C.N.S. Act by carrying narcotics (chars) at taxi stand Latifabad No.

12. The Excise Police party proceeded towards the reported place and found the appellant with a cloth bag. Due to non-availability of private witnesses, the official witnesses were appointed as the marginal witness of 'Memo of Arrest and Recovery'. It is also the case of the prosecution that from the possession of the appellant 3000 grams of hashish (charas) was recovered in shape of patties (slabs) and according to prosecution case; he was possessing and selling the narcotics (charas).

4. In the instant case, there are certain material discrepancies as pointed out by the learned counsel for the appellant in respect of arrest and recovery, which creates doubt. As per prosecution case, Excise Police had beforehand spy information at Police Station but they did not try to associate some private persons to witness the arrest and recovery from the accused/appellant. We are of the view that there was sufficient time with Excise Police to arrange at least a private witness and not doing so by the Excise Police makes their case of arrest and recovery doubtful in the peculiar circumstances of the case in hand. It is also worth noting that the alleged recovery was taken place at a taxi stand, which is a very busy place, from where a private and independent witness can be arranged. In this respect, we would like to take reliance from the judgment of a Division Bench of this Court reported as Khalil Ahmed v. The State (PLD 2008 Karachi 8), wherein, the bench has observed as: "As per prosecution case, the incident occurred and near Blue-line office, Ghinti crossing of Larkana, which is apparently situated in the midst of the city, being a thickly populated area. However, no private person from the locality was associated as witness/mashir in the case." Another aspect of the case requires consideration. As per Chemical Analyser report, the property was received in the office of the Chemical Analyser by the hand of E.I. Nisar Ahmed with a delay of one day. The said E.I. Nisar Ahmed was not examined to clarify that the case property remained in safe custody during this period of delay. It is a serious matter that during this period where the property was and this fact also creates doubt regarding the case of the prosecution. In this respect reliance may be taken from the case of Riasat Ali v. The State (2004 PCr.LJ 361). Similar view is also taken in the case of Muhammad Saleh Mallah v. The State (2016 PCr.LJ 432).

5. From the above discussion, it is evident that there are serious doubts as to the case of prosecution. It is settled law that even a single doubt in the prosecution story is disastrous for the prosecution case and its benefit must go to the accused. In this respect, we would like to take reliance from a case of Apex Court reported as Tariq Pervez v. The State (1995 SCMR 1345) wherein it is held as: "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."

6. In the present case, there are series of circumstances creating doubts, and under the settled principle of criminal justice, the benefit of the doubt goes to the present appellant.

7. The final and eventual outcome of the entire discussion is that we are unable to agree with the findings and conclusions reached at by the learned trial Court and the same are unsustainable which vitiate the impugned judgment. We, therefore, allow the instant appeal. Resultantly, the judgment of the learned trial Court is set aside, and the appellant is acquitted of the offences for which he has been charged vide our short order dated 29.09.2017 and these are the reasons for the same. SA/B-7/Sindh Appeal allowed.