2025 PLP 1819 (YLR)

Adnan-ul-Karim Memon, J.

Khawaja Muhammad Asif appeals the judgment dated 15.03.2023 passed by the 1st Additional Sessions Judge /MCTC-I/Special Court/CNS Court, Karachi Central, where the trial court convicted and sentenced him to 10 years of rigorous imprisonment for an offense under Section 6/9-C CNS Amendment Act, 2022, and imposed a fine of Rs. 100,000; and in case of default, the appellant will suffer for 20 days S.I. An excerpt of the judgment is reproduced as follows:- "Since the accused is the first offender, having no previous criminal record, this court by taking a lenient view convicted the accused Khawaja Muhammad Asif son of Khawaja Muhammad Azhar under section 265-H (ii) Cr.P.C for committing offense under sections 6,9 C Control of Narcotic Substances Amendment Act, 2022 and sentenced him to suffer R.I 10 years and to pay a fine Rs. 100,000/-(Rupees One lac only) and in default thereof, he shall suffer S.I for 20 years more. Accused is also extended benefit of Section 382-B Cr.P.C. for the period he has already remained in custody in this case since his arrest. The accused is produced by jail authority. He is remanded to jail with a conviction warrant for serving his sentence period as per the jail manual. The bail bond of the accused stands cancelled and surety discharged."

2. Facts of the case are that on September 22, 2022, police of PS Rizvia Society Karachi arrested the appellant near Sabra Goth Nadi Corner, Gulbahar No. 1, Karachi, and recovered 2300 grams of Chars from him. A criminal case No. 494/2022 under sections 6 and 9(c) of the Control of Narcotic Substances Act, 1997 was lodged against him. Investigating Officer Muhammad Boota visited the crime scene, recorded witness statements, and submitted the recovered drugs for chemical analysis on 23.09.2022. He submitted a final investigation report to the trial court. A formal charge was framed under Section 265-D of the Cr.P.C. The appellant pleaded not guilty. The prosecution's evidence was then presented. The prosecution has examined PW-1 complainant/ SIP Muhammad Hussain at Exh.3. He produced documents which were exhibited from Exh 3A to Exh 3/E. PW-2 PC-Amir Khan was examined at Exh 04, PW-3 SIP/ Investigation Officer Muhammad Boota was examined at Exh.05 who produced documents which were exhibited from Exh.5/A to Exh.5/K PW-4 ASI-Muhammad Qasim was examined at Exh.06, who produced entry No.140/2022 of register No. 19 at Exh.6/A.

3. Statement of the appellant under Section 342 Cr.P.C was recorded at Exh 08, in which he denied the allegations of the prosecution professed to be innocent, and claimed his false implication in this case. However, he did not opt to be examined on oath nor produced any witness in his defense. After the case's conclusion, the trial court found the appellant, Khawaja Muhammad Asif, guilty of violating Section 6 of the CNS Amendment Act, 2022. By considering the recent amendment and the appellant's first-time offense, the court sentences him to 10 years imprisonment and a fine of Rs. 100,000/-.

4. The learned counsel for the appellant argued that the appellant was falsely implicated and that the police witnesses were unreliable. The appellant's counsel argues that the trial court failed to consider material facts and did not analyze witness statements properly. The prosecution's evidence is insufficient and lacks specificity, such as the exact time of the offense and CCTV footage. The counsel contended that there are contradictions in the evidence of prosecution which does not warrant conviction of the appellant. He has contended that nothing was recovered from his possession and the same recovery was foisted by the complainant on refusal of illegal demands of payment. He further added that the conviction is based on unreliable evidence, and the appellant's fundamental rights have been violated. Learned counsel argued that PC Aamir Khan said that there was sunlight available at the time of the arrest of the appellant. Besides he deposed that the spy was present at the place of the incident, however this stance has not been disclosed by the complainant / SIP Muhammad Hussain either in the FIR or in his deposition, which contradiction is material in its nature and cannot be ignored therefore such conviction is in appropriate. Learned counsel further pointed out that the prosecution witness also admitted that there was a jurisdiction issue so far as jurisdiction of Pak Colony was concerned; he also deposed that SIP fixed three seals on the parcel whereas the certificate of test/analysis by the laboratory only suggests one seal cloth parcel, which contradiction sufficient to discard the covnviction. He pointed out that these contradictory statements are confusing the case of the prosecution, thus reliance cannot be plaed on the testimony of the police officials. He further pointed out that book No.19/Kitab-e-Malkhana explicitly shows that only 2300 grams of Charas and 600 Rupees were recovered without showing the weight of two slabs of Narcotics i.e. 1120 and 1180 and even does not show who deposited with the Malkhana, whereas ASIP/HM deposed that he received sealed parcel to be kept in Malkhana under the Entry Nos. 140/2022 of Registration No. 19, however, Entry No. 140/2022 does not disclose the name of ASIP/HM Muhammad Qasim which also creates doubt in prosecution story as the same case property was received by Chemical Analyzer on next day i.e 23.09.2022, these contradictory stance creates doubt in the prosecution story. He prayed for allowing the Appeal.

5. The learned Additional Prosecutor General supported the judgment of the trial court. He added that the prosecution's case was/is supported by consistent testimony from multiple witnesses, including the complainant, a police officer, and the in-charge of the property locker. He further submitted that the defense failed to effectively challenge the prosecution's evidence, raising only minor objections that did not undermine the core of the case. He next argued that the trial court found the prosecution's evidence to be credible and sufficient to prove the appellant's guilt beyond a reasonable doubt. He pointed out that the chemical analysis report, which was not challenged by the defense, further corroborated the prosecution's case. He prayed for the dismissal of the Appeal.

6. We have heard the learned counsel for the parties and perused the record with their assistance.

7. The point of determination in the present case is whether the appellant was arrested by the police of PS-Rizvia Society, Karachi on September 22, 2022, and 2.3 kg of charas was recovered from him in the presence of independent witnesses.

8. The prosecution witness, PC Amir Khan, testified that the arrest of the appellant occurred in daylight, and the recovered items were two sealed pieces of charas. He admitted that 05/07 persons were available at the place of the incident. The prosecution witness SIP Muhammad Hussain deposed that at the time of the arrest of the appellant, private witnesses were present. He admitted that he wrote a memo of arrest and recovery on the police mobile bonnet using a flashlight/torch (time not mentioned) and Returned to PS by 7:50 pm. He admitted that the Qaimi entry lacks the net weight of the second property (1180 grams). He admitted that the departure month entry was overwritten. He admitted that the recovered property's detailed description and measurements were not mentioned. He admitted that the memo of arrest does not mention the appellant's attempt to run.

9. The witness SIP Muhammad prosecution Boota/Investigation Officer deposed that the incident site was populated, but no witnesses were present during the inspection. He admitted that Entry No. 32 lacks witness names. He deposed that improvements were made to the Roznamcha entry. He admitted that Entry No. 2 does not mention receiving case property under register No.

19. He admitted that police papers lack certain details.

10. The prosecution witness ASI-Muhammad Qasim admitted that the 161 Cr. P.C. statement lacks the entry number for Register No.19. He produced a photocopy of Register No.19 without an initial or signature below the attestation.

11. Such contradiction on the point of day time more particularly one witness says that the recovery was made in day sunlight whereas, on another witness says, it was the night which shall always lead to the benefit of defense, however, the variance of the testimony of witnesses or inconsistencies on the subject points lead to such conclusion, which are material in nature and do introduce or suggest a different version to the prosecution case. The major discrepancies in the instant case are of such nature, which could bring the case within the exceptions as the prosecution was duty-bound to establish its case independently without any shadow of a doubt. Reliance in this regard can be placed on the case of Sarfaraz alias Sappi v. The State [2000 SCMR 1758].

12. In the cases under CNSA 1997, the prosecution must establish every step from the step of recovery, making of the sample parcel, safe custody sample for transfer, and safe transmission of the sample transfer to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing, the benefit of the same has to be extended to the accused. However in the present case such chain is not in alignment. On the aforesaid proposition, we are fortified to the decisions of the Supreme Court in the cases of Mst. Sakina Ramzan v The State 2021 SCMR 451 and Qaiser Khan v The State 2021 SCMR 363.

13. The prosecution witness, Muhammad Hussain, testified that private witnesses were available at the time of the arrest but were not cited as witnesses to the crime. He also admitted inconsistencies in the evidence, such as the missing weight of a property and the lack of a register number in the Qaimi entry. Additionally, he acknowledged that he prepared crucial documents under sub-optimal lighting conditions. The prosecution witness, PC Aamir Khan, contradicted the SIP's claim about the lighting conditions during the arrest. Additionally, the defense highlighted. inconsistencies regarding the presence of a spy at the scene, the jurisdiction of the case, the number of seals on the parcel, and the discrepancies in the Malkhana records. These contradictions cast doubt on the prosecution's case.

14. After the reassessment of material available in the file, we found that in the present case, there are also several infirmities/lacunas, which have created serious doubt in the prosecution case. It is a settled principle of law that for extending the benefit of the doubt, there does not need to be multiple circumstances creating doubt. If a single circumstance, creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Muhammad Akram v. The State (2009 SCMR 230) and Tariq Pervez v. The State (1995 SCMR 1345), wherein the Supreme Court has held as under:- The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. 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".

15. According to the version of the prosecution, they failed to associate the private witnesses to oversee the recovery proceedings in terms of the ratio of the judgment passed by the Supreme Court in the case of Zahid Sarfaraz Gill v The State 2024 SCMR 934 whereby it has been held that the police and members of the Anti-Narcotic Force failed to record or photograph at the time of search of the accused when search, seizure or arrest is made, as the law permits the use of modern device or techniques.

16. All the above material illegalities/infirmities have created reasonable doubt in the case of the prosecution. Thus based on the particular facts and the circumstances of the present case and by relying on the above precedents of the Supreme Court, we are of the view that the prosecution has failed to prove the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence. Therefore, the conviction and sentence awarded by the trial court to the appellant vide judgment dated 15.03.2023 in Special Case No. 1720 of 2022 is not sustainable under the law and is liable to be set aside.

17. The trial court misjudged the evidence, leading to the wrongful conviction of the appellant and this was the reason, we overturned the conviction and acquitted the appellant from the charge vide short dated 3.12.2024 with the direction that the appellant be released forthwith in the present crime if not required in any other custody case.

18. The above are the reasons for our short order dated 3.12.2024. JK/M-21/Sindh Appeal allowed.