1995 PLP 1345 (SCMR)

Iqbal Ahmad Qureshi, Advocate/Advocate‑on‑Record for Appellant. Raja Abdul Ghafur, Advocate for the State. Date of hearing: 25th April, 1995. MUHAMMAD MUNIR KHAN, J.‑‑‑Tariq Pervez appellant was tried under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 by Judicial Magistrate Section 30, Lahore, on the charge of selling one gram heroin to Muhammad Shaft P.W. (not produced) and possessing 1099 grams heroin which was recovered from an envelope which he was holding in his hands at the time of raid on 28‑5‑1984 in Said Mitha Bazar, Kucha Radha Kishan, Lahore, who, on 13‑9‑1993, convicted him on both charges and sentenced him to three years' R.I. and fine of Rs.5,000 or in default two months' S.I. and two stripes, on each count. On the appeal filed by him against his convictions and sentences, the Federal Shariat Court vide its order dated 7‑11‑1993 has set aside his conviction and sentence under Article 3 of the Prohibition Order but has maintained the conviction and sentence under Article 4 of the Prohibition Order. Feeling aggrieved thereby, the appellant filed a petition for leave to appeal, which was granted by this Court on 17‑4‑1995.

2. The prosecution case is that consequent upon the Mukhbari, raiding party was constituted to recover narcotics from Tariq Pervez appellant. Muhammad Shaft H.C. was sent to the accused as a fake customer to whom the appellant sold one gram of heroin for Rs.30. Thereafter, the raiding party arrested the appellant and recovered 1099 grams heroin from him. One gram heroin sold by the appellant to Muhammad Shaft was sealed into a parcel and one gram of the heroin was taken out of the 1099 grams of heroin recovered from the appellant and was sealed into another parcel. The remaining heroin ' 1098 grams was also sealed into a parcel.

3. At the trial Muhammad Aslant Shahab P.W. 4, Rana Ibad Ali P.W.7 and Raja Ahmad Jalil P.W.8 supported the prosecution case. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances and in defence he produced Haji Zahid Mahmood D.W. 1.

4. Learned counsel for the appellant has argued that the appellant has been acquitted of the charge of selling one gram of heroin to Muhammad Shari H.C. by the Federal Shariat Court. Although, two separate parcels containing one gram heroin each were prepared by the police, yet only one parcel was sent to the Chemical Examiner and in the circumstances of the case, reasonable possibility, that the parcel containing one gram of heroin which was sold by the appellant to Muhammad Shaft was sent to the Chemical Examiner and not the parcel of sample was sent to him, cannot be ruled out. Learned counsel appearing for the State has frankly admitted that out of the two parcels containing one gram heroin each only one was sent to the Chemical Examiner and he was not in a position to identify the parcel which was not sent to the Chemical Examiner.

5. Muhammad Aish P.W.6 has stated in the cross-examination that

The aforesaid narration of the evidence on record will show that two separate parcels containing one gram heroin sold by the appellant to Muhammad Shaft and one gram heroin separated from heroin weighing 1099 grams were prepared by the police and only one parcel was sent to the Chemical Examiner for examination and report. As such it cannot be said with Judicial certainty that the parcel containing sample heroin was sent to the Chemical Examiner. 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. The upshot of the above discussion is that there being no satisfactory basis for upholding the conviction and sentence of the appellant, the appeal is allowed, the conviction and sentence of the appellant is set aside, and he is acquitted of the charge. He shall be released forthwith, if not required in any other case. N.H.Q./T‑112/S Appeal allowed.