2019 PLP 30 (YLRN)

FAHIM AHMED SIDDIQUI, J.

The Additional Sessions Judge Special Judge (CNS), Shaheed Benazeerabad has convicted the appellant in Special Case No. 72/2013 by passing the impugned judgment dated 18th September, 2014. The operating part of the impugned judgment is as under:- "Pursuant to the above discussion, prosecution has succeeded to prove its case beyond the shadow of doubt, reluctantly accused is convicted under section 245(2), Cr.P.C., I therefore, sentenced him Rigorous Imprisonment for 4 years and 06 months and also imposed a fine of Rs. 20,000/-(twenty thousand), in default of fine he will suffer five months' Simple Imprisonment. The benefit of section 382-B, Cr.P.C. is also extended to him." 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 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 they apprehended the appellant on the tip of information that one person is selling narcotics (chars) alongside of the abandoned railway line. The police party proceeded towards the reported place i.e. Sanjrani Water Course and found the appellant with a green colour shopper. 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 5000 grams of hashish (charas) was recovered in shape of pieces and according to prosecution case, he was selling the narcotics (charas).

4. In the instant case, there are sufficient material pointed out by the learned counsel for the appellant regarding the mode and style of arrest and recovery, which creates doubt. As per prosecution case, police had beforehand spy information but they did not try to associate a private person to witness the arrest and recovery from the accused/appellant. There is a defence plea enshrined in the cross-examination as well as in the statement of accused (appellant) recorded under Section 342, Cr.P.C. that he was subjected to enmity of an influential person, who is a well-connected bureaucrat of the province. We are of the view that, in such a situation, proprietary demands that certain arrangements should be made to associate some private witnesses before reaching at the reported place and the witnesses can easily be arranged during the way towards the pointed place. In this respect, we would like to take reliance from the judgement of a Division Bench of this Court reported as Abdul Majeed v. The State (2014 YLR 2050), wherein it is held as: "In the instant case, specific animosity and ill-will has been alleged against the police officials, therefore, it was incumbent upon the prosecution to prove its case by examining independent persons of the locality but neither the police examined any person of the locality nor accompanied any private person to witness the personal search and recovery of contraband narcotics"

5. 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 PC Mohammed Hussein with a delay of one day. The said PC Muhammad Hussain was not examined to clarify that the case property remained in safe custody during this period of delay.

6. From the above discussion, it is evident that there are serious doubts as to the case of prosecution. It is settled law that Ieven 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."

7. 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.

8. 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 28.9.2017 and these are the reason for the same. JK/S-76/Sindh Appeal accepted.