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Criminal Appeal No. D-85 of 2006, decided on 16th July, 2013.

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Property was sent to the Chemical Examiner with the delay of three months and five days, and no plausible justification was available on record to show the reasons of said delay---Such aspect was sufficient to cause the dent in the prosecution case---Registration of F.I.R., two days prior to the incident, had indicated the enmity between Police Officials and accused party---False involvement of accused in circumstances, could not be ruled out---Contradictions pointed out by counsel for accused was an admitted fact---Single dent in prosecution case, was sufficient to acquit accused---Miscarriage of justice, could arise from acquittal of the guilty and no less from conviction of the innocent---Impugned judgment whereby the sentence was awarded, was set aside and accused was acquitted by extending him benefit of doubt. Nazeer Ahmed v. The State PLD 2009 Kar. 191 and Muhammad Aslam v. The State 2011 SCMR 820 ref. 2011 PCr.LJ 1342 and 2001 PCr.LJ 1963 distinguished. Muhammad Aslam v. The State 2011 SCMR 820 rel. Azher Hussain Abbasi for Appellant. Abdul Rasheed Soomro for the State. Date of hearing: 16th July, 2013.

The appellant has filed this Criminal Appeal against Judgment dated 22-8-2006, passed by the learned Sessions Judge/Special Judge, Narcotics. Shikarpur in Special Case No.265 of 2002 State v. Riaz Ahmed convicting the appellant under section 9(c), Control of Narcotic Substances Act sentencing him to undergo R.I. for three years and to pay fine of Rs.5,000 in default thereof to undergo S.I. for one month more. The appellant was also extended benefit under section 382-B, Cr.P.C. 2. Briefly the facts of the case are that SIP Muhammad Sadiq Odho, SHO Police Station Sultan Kot lodged F.I.R., stating, therein that on 6-6-2002, during patrolling, he along with subordinate staff when reached near Juma Shah grave yard where they noticed that four persons coming from opposite side, out of them one had plastic bag. Police directed them to stop but they attempted to run away. The police party succeeded to apprehend one of them along with bag, while remaining accused decamped. The recovered bag was containing charas and opium. On weighing the charas came to be 800 grams and opium was 500 grams. The apprehended person disclosed his name as Riaz Ahmed. HC Muhammad and HC Ghulam Qadir, were associated as mashirs and personal search of the accused was concluded and Rs.60 was recovered from the pocket of apprehended person. The SHO prepared such mashirnama and produced the accused at Police Station and lodged the F.I.R. It is stated in the F.I.R. that appellant was also involved in crime No.39/2002 under sections 341, 353, P.P.C. 3. After investigation the I.O. submitted the challan. The trial Court recorded the evidence, examined the appellant under section 342, Cr.P.C. and after affording an opportunity of hearing the counsel for both the parties convicted and sentenced the appellant as referred hereinabove. 4. Mr. Azher Hussain Abbasi, learned advocate for appellant has contended that the case is false and fabricated resulting from the enmity which is admitted fact, mentioned in the F.I.R. that two days prior to the incident the SHO had lodged the F.I.R. No.39/2002 against the brother of appellant. Learned advocate further contended that the fact is that the appellant was arrested on 4-6-2002, however with ulterior motive his arrest was not shown and subsequently this case was managed. Learned counsel has further contended that there are material contradictions in the evidence of complainant and the mashir, at the one hand the complainant has deposed in his evidence that they had seen four accused persons coming from opposite side, whereas the mashir has stated that five persons were coming. The main contention emphasized by the learned counsel for the appellant is that there was delay of more than three months in sending the allegedly recovered substance to the Chemical Examiner, which is sufficient to create doubt in the prosecution case and it is settled law that for acquittal of any person, there is no requirement that there must be many doubts in prosecution case and even a slight doubt is sufficient for the acquittal. Learned counsel for the appellant has relied upon the cases of Nazeer Ahmed v. The State reported as PLD 2009 Karachi 191 and Muhammad Aslam v. The State 2011 SCMR 820. 5. Conversely the learned State Counsel has contended that the appellant was apprehended and substance was recovered from his possession which was sent to Chemical Examiner and on proper chemical test it was found to be charas and opium, therefore, impugned judgment is in accordance with law. He further States that delay in sending property for Chemical Examiner is not fatal to the prosecution case. In support of his case he has relied upon the cases of 2011 PCr.LJ 1342, 2001 PCr.LJ 1963. 6. We have considered the arguments and perused the record. 7. After meticulous examination of available record, it is manifest that the contradictions pointed out by the learned counsel for the appellant is admitted fact and are brought on record during cross-examination. Candidly, the property was sent to the Chemical Examiner with the delay of three Months and five days but there is no plausible justification available on record to show the reasons of the delay. This aspect only is sufficient to cause the dent in prosecution case. The citations relied upon by the learned State Counsel bears different sets and circumstances and in referred precedents it is observed that no such question regarding delay in sending the substances to Chemical Examiner was put to the prosecution case, as such delay was immaterial whereas in the instant case the defence counsel has put specific question which was not properly replied, as such the said case law, relied is not applicable to the facts and circumstances of the case. Moreover, the registration of F.I.R. No.39/2002 two days prior to the incident indicates the enmity between police officials and appellant party hence false involvement of the appellant in these circumstances cannot be ruled out. It is settled proposition of law that a single dent in prosecution case is sufficient to acquit the accused and for all reason it is true to say "that miscarriage of justice may arise from acquittal of the guilty, no less from conviction of the innocent", reference can be made to the case of Muhammad Aslam v. The State reported in 2011 SCMR 820. 8. In the circumstances, we allow the appeal by extending benefit of doubt to the appellant. The impugned judgment whereby the sentence was awarded is set aside and the appellant is acquitted, who is present in Court, his bail bond is cancelled and surety is discharged. HBT/R-16/K Appeal allowed.

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