2016 P Cr (PLP)

AMER RAZA NAQVI, J.

The appellant was tried by Special Judge for C.N.S Larkana in Special Case No.33 of 2003 for an offence punishable under section 9(b), Control of Narcotic Substances Act, 1997 arising out of Crime No.187/2003 of P.S Ratodero and he was convicted for the charge framed on 31.03.2004 against him and was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.5000/=, in default of payment of fine he was to further undergo R.I for one month. Appellant was also granted benefit of section 382-B, Cr.P.C. Such conviction was awarded by the trial Court through judgment passed in the above matter on 23.06.2006. The appellant preferred this appeal against such judgment, such appeal was heard on 18.02.2015, the appeal was allowed and he was acquitted of the charge through a short order and following are the reasons for such order. The allegation contained in the charge was to the extent that on 16.12.2003 at about 10.00 p.m on the road leading from Ratodero to Shahdadkot near bypass Ratodero District Larkana, he was found in possession of 1 k.g charas which was recovered from him by Inspector Abdul Khalique Wagan of P.S Ratodero. Charge was framed under section 9(b), Control of Narcotic Substances Act, 1997. The prosecution in support of their case, examined two witnesses namely P.W 1 Shah Baig who was mashir of recovery and arrest, and P.W 2 who was complainant of the FIR bearing No.187 of 2003 of P.S Ratodero registered in respect of alleged recovery. Both witnesses supported the case of the prosecution and deposed that the alleged recovery was made from the appellant at the time and place mentioned in the charge. Learned counsel for the appellant in support of this appeal argued that there is no private mashir in this case. The recovery is highly doubtful. The comaplainant himself investigated the matter and as such prosecution case should not have been believed by the trial Court and trial Court was not justified in convicting the appellant on the charge framed against him. He further submitted that there are material contradictions in the story of prosecution and further more many aspects of the matter both the P.Ws have given different versions of the recovery. Learned counsel pointed out that according to P.W.1 mashirnama was not prepared by the complainant and Investigation Officer whereas the Investigation Officer claimed that he himself has prepared the mashirnama. He further submitted that it was alleged that currency notes were recovered from the possession of the accused in addition to prohibited item but the numbers of the notes are not mentioned in the mashirnama. Learned counsel therefore submits that impugned judgment passed by the learned trial Court is liable to be set aside. He submitted that in every criminal case benefit of doubt is to be given to the accused and when prosecution is not able to present its case beyond reasonable doubt accused is entitled to be acquitted in the matter. On the other hand, learned D.P.G appearing on behalf of the State submitted that the contraband item has been recovered from the accused which is violation of the above referred section of law. He submitted that contradictions pointed out by the learned counsel for the appellant are not material. Both the witnesses have supported the case of the prosecution and prosecution has successfully proved its case before the trial Court and therefore, the conviction awarded to the appellant should be maintained. We have heard both learned counsel and perused the record with their able assistance. The contradictions pointed out by the learned counsel for the appellant were found correct on the record. P.W-1 categorically stated in clear words that SHO P.W-2 got the mashirnama written through a police constable. He however, was unable to disclose the name of that constable whereas according to mashirnama there was only one police constable namely Abdul Rasheed besides above mentioned two prosecution witnesses. On the other hand P.W-2 who is complainant and Investigation Officer of the case at the same time claimed that he himself prepared the mashirnama and claimed that mashirnama is in his own hand writing. While giving the details of the arrest P.W 1 stated that the hands of the accused were tied with hands whereas P.W-2 claimed that he was handcuffed. P.W 2 in his statement claimed that two pieces of charas were lying in shopper when the appellant was apprehended. In the mashirnama also two pieces of charas are mentioned. In the report of chemical examiner the article which was sent is said to be one black brown piece. We have noted that the date of alleged incident is 16.12.2003 and according to the report of Chemical Examiner it was received on 22.12.2003 whereas P.W 2 stated before the Court that he was transferred on 23.12.2003. He further stated that his successor might have sent the sample towards Chemical Examiner. It is strange that he did not know whether the sample was sent by him to the Chemical Examiner or it was sent by his successor. Even on that point he was not sure and he simply stated that his successor might have sent the sample to Chemical Examiner. These contradictions are material and therefore, in our humble opinion the case of the prosecution is not free from doubt. We have also noted that complainant and I.O. of the case in the present matter is the same person which violates the principles of natural justice and moreover although section 103, Cr.P.C. is not applicable in cases of Control of Narcotic Substances Act, 1997 but when police officials are only witnesses in the matter evidence produced requires strict examination by the courts so that conviction to an innocent person as a result of possible false implication may be ruled out as it would be in accordance with the principles of safe administration of justice in criminal matters. In a case reported in 1995 SCMR 1345, it has been held that 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 one 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. In our humble view there is no satisfactory basis for upholding the conviction and sentence of the appellant therefore, this appeal was allowed through short order and these are reasons for such order. YN/S-23/Sindh Appeal allowed.