2000 P Cr (PLP)

MUHAMMAD ROSHAN ESSANI, J.

The appellant Hamza was convicted and sentenced by the learned Special Judge, Malir, Karachi under section 9 of the Control of Narcotic Substances Ordinance, 1995, to suffer R. I. for 3 years and to pay fine of Rs.5,000 and in default of payment of fine, he was ordered to undergo R.I. for 3 months more by judgment, dated 5-4-1997.. The case arose out of F.I.R. No. 15 of 1995 under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979.of Police Station Anti -Narcotics Force, Karachi. The brief facts of the prosecution case are that on 4th November, 1995 at about 5-10 a.m. the complainant M.Z. Suharwardi, Assistant Excise Officer, Special Anti-Narcotic Team, Karachi apprehended the appellant on the road while he was coming from Akbar Town. Complainant recovered one slab of Charas (Canabis resin) weighing 1 Kg. from his possession in presence of Mashirs Khalil Ahmed and P.C. Abdul Jabbar. The appellant was brought at police station where complainant lodged the F.I.R. stated hereinabove. After usual investigation the appellant was sent up to stand trial. The trial Court framed the charge against the appellant under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979, read with sections 6 and 9 of the Control of Narcotic Substances Ordinance, 1995, on 14-2-1996. The appellant did not plead guilty to the charge and claimed to be tried. In support of its case prosecution examined P W.1 complainant/Investigating Officer Suherwardi as Exh.5. He produced Mashirnama of arrest and recovery as Exh.5-A, F.I.R. as Exh.5-B, and report of Chemical Examiner as Exh.5-C. P.W.2 Khalil Ahmed Exh.6 Mashir of recovery and prosecution closed its side by statement Exh.7. Statement of appellant under section 342, Cr.P.C. was recorded by the trial Court wherein he denied the prosecution case. He examined D.W.l Bahadur as Exh.10 and Allah Dino as Exh.11. The appellant was convicted and sentenced as stated hereinabove. We have heard Mr. Muhammad Ilyas Khan, learned counsel for the appellant and Mr. Habib Ahmed learned Assistant Advocate-General on behalf of the State. The latter conceded to the arguments of the learned counsel for the appellant and he did not support the impugned judgment. The perusal of record shows that the evidence of the prosecution witnesses is contradictory and discrepant one. From the evidence of P. W. Mashir Khalil Ahmad Exh.6, it appears that he is a stock-witness and a drug addict. P.W.2 Khalil Ahmed Exh.6 has admitted in the cross-examination that he had been appearing in the cases of Excise Police as a prosecution witness before the trial Court prior to this case and as such he appeared in two other cases of Narcotics. He admitted that he smokes Charas and was purchasing the same from Malir. He did not inform the Inspector/ complainant with regard to the den from where he used to purchase the Charas (Canabis resin) for his personal use. He has "gone a step ahead and stated that there is no need of telling the Inspector/complainant with regard to open sale of Charas as the complainant personally knows this fact, and he is not able to say as to why complainant did not conduct any raid on the den from where he (Mashir Khalil Ahmed) was purchasing the Charas. The perusal of the report of Chemico Bacteriological Laboratory and Chemical Examiner to the Government of Sindh, Karachi shows that the alleged recovered narcotics was sent for Chemical analysis on 16-11-1295 whereas the alleged recovery was made on 4-11-1995. The delay in sending the property was not explained .by the prosecution particularly when the Chemical Laboratqry is situated in Karachi. The report of Chemical Analyser shows that the alleged property was received by him on 16-11-1.995 but the report was issued by him on 22-6-1996. The gross and net weight of the B alleged narcotic does not commensurate with the weight stated by the complainant and P.W. Khalil Ahmed in their evidence before the Court so also as mentioned in the F.I.R. and Mashirnama of recovery. As per the prosecution case the net weight of the Charas (canabis resin) was one kilogram but according to Chemical Analyser report the gross weight of the parcel including the contents was 1035.00 grams and net weight of the Charas without wrappers was 1022.00 grams. There are other glaring contradictions in the evidence of the prosecution witnesses which deed not be reproduced herein as on the broad facts discussed herein the prosecution has failed to substantiate the charge against the appellant. It is well-settled that the rule with regard to corroboration of evidence of an interested witness is although a rule of caution, yet virtually it is ripened into rule of law. For the purpose of benefit of doubt to an accused more than one infirmity is not required. A single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt. The upshot of the above discussion, is that the investigation reveals dishonesty and it has rendered the entire prosecution case doubtful Consequently, the appellant is extended benefit of doubt and he is acquitted accordingly. By our short order, dated 8-9-1999 we had allowed the present appeal and above are the detailed reasons for the same. H.B.T./H-11/K Appeal allowed.