Cr.Appeal No.D-80 of 2010

Cr.Appeal No.D-82 of 2010

Present:

Mr. Justice Naimatullah Phulpoto &

Mr. Justice Rasheed Ahmed Soomro.

Date of hearing: 02.08.2017.

Date of judgment: 02.08.2017.

Mr. Ghulam Shabir Dayo Advocate for appellants.

Mr. Saleem Akhtar Buriro, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. Brief facts of the case leading to the filing of the appeals filed by appellants Abdul Salam and Jibran are that on 24.03.2007 SIP Mubashar Hussain, the Additional SHO, PS, A-Section, Sukkur after receipt of information about gambling at the otaq of Mirza Khan, left to Nao-goth, Sukkur along with subordinate staff vide Roznamcha entry No.11 and reached at the pointed place at about 10-30 a.m., where it is alleged that outer gate of the premises was found opened. Police party entered in premises and saw that 10 persons were sitting in circle, who were busy in gambling by means of cards, while one person was sitting on a chair near them. Police party challenged the accused persons to surrender, it is alleged that out of them, four persons succeeded in running away by scaling over the wall while remaining seven persons were apprehended by the police at the spot. The person sitting on the chair, on inquiry, disclosed his name as Mirza Khan. Police took personal search of Mirza Khan and secured cash of Rs.30,000/- from the front pocket of his shirt and one TT pistol with eight live bullets from the left side fold of his shalwar, two chains of the gold worn by him and one rod of charas weighing 500 grams from the right side pocket of his shirt was also recovered. Out of it, it is alleged that 100 grams were separated as sample for sending to the Chemical Examiner for analysis while the remaining 400 grams were separately sealed. Cash of Rs.15,500/- lying by his side was also secured, it was used in gambling. One accused disclosed his name as Abdul Salam, from whose possession, it is alleged that a repeater with three live cartridges was recovered and a cash of Rs.2,500/- lying in front of him and a cash of Rs.9,000/- from the front pocket of his shirt was recovered and two pieces of charas weighing 700 grams were secured from the side pocket of his shirt. Out of it, 200 grams were drawn as sample while remaining 500 grams were separately sealed. The third accused disclosed his name as Asadullah, on his bodily search, one 9 m.m pistol with six live bullets was secured from the fold of his shalwar besides cash of Rs.3,500/- from his front and Rs.4,500/- from the pocket of his shirt besides 450 grams of charas from the right side pocket of his shirt. Out of it, 150 grams were separated as sample while 300 grams were separately sealed. The fourth accused disclosed his name as Allahdad (since dead). On his bodily search TT pistol with five live bullets, a cash of Rs.3,500/- lying in front of him, Rs.4,500/- from his front pocket and a piece of charas weighing 650 grams from the right side pocket of his shirt. Out of it, it is alleged that 150 grams were separated as sample while remaining 500 grams were sealed as case property. It is alleged that fifth accused disclosed his name as Jibran, from whom one TT pistol with six live bullets, a cash of Rs.4,500/- lying in front of him and a further cash of Rs.15,500/- from the pocket of his shirt and a piece of charas weighing 500 grams were secured from him, out of which 100 grams were separated as sample while the remaining 400 grams were kept separately as the case property. The sixth accused gave his name as Mehboob Mahar, from his possession cash of Rs.7000/- from his front and another cash of Rs.3,500/- from the pocket of his shirt. Seventh accused disclosed his name as Baz Muhammad and a cash of Rs.5,500/- was collected from his front while Rs.7,500/- more were secured from the pocket of his shirt. All the said accused persons on inquiry disclosed the names of the accused who ran away as Amanullah, Yousuf and Abdullah all sons of Lajpar Pathan and fourth as Dilawar son of Adam Khan. The police party collected two packs of playing cards, one carpet, and 50 cans filled with Iranian fuel. All the accused were formally arrested under a joint mashirnama in presence of mashirs ASI Ali Hassan and ASI Hasnain Raza Shah. Thereafter, accused were brought to the Police Station, where it is alleged that main case bearing crime No.32/2007 was registered against accused on behalf of State. Four separate cases were registered against the accused for offence under Section 9 (b) Control of Narcotic Substances Act, 1997 on behalf of State, bearing crimes No.34, 36, 38 and 42 of 2007. Samples were sent to Chemical Examiner for analysis.

2. During investigation 161 Cr.P.C statements of the prosecution witnesses were recorded. Positive reports of the Chemical Examiner were received. On conclusion of investigation, separate challans in the main case as well as cases under Section 9 (b) Control of Narcotic Substances Act, 1997 were submitted. Cases under Section 9 (b) Control of Narcotic Substances Act, 1997 proceeded before learned Sessions/Special Judge (CNS), Sukkur.

3. After full dressed trial, appellant Abdul Salam was convicted under Section 9 (b) Control of Narcotic Substances Act, 1997 and sentenced to one year imprisonment and to pay fine of Rs.20,000/-, in default to suffer imprisonment for two months more vide judgment dated 25.05.2010 passed by learned Session/ Special Judge(CNS), Sukkur in special case No.10/2007, bearing crime No.36/2007 of PS, A-Section, Sukkur.

4. Appellant Jibran was convicted under Section 9 (b) Control of Narcotic Substances Act, 1997 and sentenced to one year and six months imprisonment and to pay fine of Rs.30,000/-, in default to suffer imprisonment for three months more vide judgment dated 25.05.2010 passed by learned Session/Special Judge(CNS), Sukkur in special case No.07/2007, bearing crime No.42/2007 of PS, A-Section, Sukkur.

5. Appellant Asad Khan was convicted under Section 9 (b) Control of Narcotic Substances Act, 1997 and sentenced to one year and three months imprisonment and to pay fine of Rs.25,000/-, in default to suffer imprisonment for two months and fifteen days more vide judgment dated 25.05.2010 passed by learned Session/Special Judge(CNS), Sukkur in special case No.06/2007, bearing crime No.38/2007 of PS, A-Section, Sukkur.

6. Appellant Mirza Khan was convicted under Section 9 (b) Control of Narcotic Substances Act, 1997 and sentenced to one year and six months imprisonment and to pay fine of Rs.30,000/-, in default to suffer imprisonment for three months more vide judgment dated 25.05.2010 passed by learned Session/Special Judge(CNS), Sukkur in special case No.08/2007, bearing crime No.34/2007 of PS, A-Section, Sukkur.

7. All the four accused filed appeals against their convictions and sentences recorded by the trial Court. Appeals were admitted for Regular hearing. During pendency of the appeals, appellants Asad Khan and Mirza Khan were murdered. Mr. Ghulam Shabir Dayo, learned counsel for the appellants submits that he pointed out this fact to this Court and proceedings against appellants Asad Khan and Mirza Khan were abated vide orders dated 10.05.2011 and 17.08.2011 respectively.

8. At the trial, charge was framed against accused Abdul Salam at Ex.2. He pleaded not guilty and claimed to be tried.

9. In order to substantiate the charge, prosecution examined PW-1 complainant SIP Mubashar Hussain at Ex.5, who produced attested copies of extracts of entries No.10 & 11 at Ex.5-A and Ex.5-B, copy of mashirnama at Ex.5-C and copy of FIR at Ex.5-D. PW-2 mashir ASI Ali Hassan at Ex.6 and PW-3 IO Inspector Muhammad Ameen at Ex.7, who produced copy of extracts of entries No.17 and 19 at Ex.7-A, copy of mashirnama of place of vardat at Ex.7-B and report of Chemical Examiner at Ex.7-C and then prosecution side was closed.

10. Charge was framed against accused Jibran at Ex.2. He pleaded not guilty and claimed to be tried.

11. At the trial prosecution examined PW-1 complainant SIP Mubashar Hussain at Ex.7, who produced attested copies of extracts of entries No.10 & 11 at Ex.7-A and Ex.7-B, copy of mashirnama at Ex.7-C and copy of FIR at Ex.7-D. PW-2 mashir ASI Ali Hassan at Ex.8 and PW-3 IO Inspector Muhammad Ameen at Ex.9, who produced copy of extracts of entries No.17 and 19 at Ex.9-A, copy of mashirnama of place of vardat at Ex.9-B and report of Chemical Examiner at Ex.9-C and then prosecution side was closed.

12. Statements of accused Abdul Salam and Jibran were recorded under Section 342 Cr.P.C at Ex.9 and Ex.11 in their respective statements both accused have claimed false implication in the case and denied the prosecution allegations. And have stated that PWs have deposed them as they are police officials. Accused Abdul Salam raised plea that he has been implicated in this case falsely due to relationship with Mirza Khan with whom the police has got hostility. Accused Jibran has stated that he has been implicated in this case falsely as he worked at the hotel of Mirza Khan. Both accused claimed innocence. Both accused declined to examine themselves on oath in disproof of prosecution allegations. No evidence was led by them in defence.

13. Trial Court after hearing the learned counsel for the parties and assessment of the evidence available on record, by judgment dated 25.05.2010 convicted and sentenced the appellants as stated above.

14. Appellants have filed separate appeals against their conviction and sentence recorded by the trial Court vide separate judgments dated 25.05.2010. Since both the appeals arise out of the same facts and the judgments arising out of the main crime as well as cases registered against them under 9 (b) Control of Narcotic Substances Act, 1997, we intend to decide aforesaid appeals by this single judgment.

15. The facts of this case as well as evidence produced before trial Court find an elaborate mention in the judgment passed by the trial Court and therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

16. Mr. Ghulam Shabir Dayo, learned counsel for the appellants has mainly contended that prosecution evidence was highly unbelievable. SHO had prior information but no independent and respectable person of the locality was associated to witness the recovery proceedings. He has further contended that SHO has failed to mention the quantity which he had drawn from each piece of charas for sending to the Chemical Examiner. He has also argued that there was no evidence that charas was kept in safe custody at Police Station. He has further argued that no entry for keeping the charas safely at Police Station was produced before the trial Court. It is also argued that there was no evidence that charas was safely transmitted to the Chemical Examiner. It is also contended that examination-in-chief as well as cross-examination of PW was recorded by the trial Court in one case, the same copies of depositions were placed in other cases at the trial. Such procedure was illegal procedure. In support of his contention, he has relied upon the case of Ikramullah v. The State (2015 SCMR 1002).

17. Mr. Saleem Akhtar Buriro, learned Additional Prosecutor General conceded to the contentions raised by the learned counsel for the appellants and did not support the judgment of the trial Court in view of the dictum laid down by Hon'ble Supreme Court in the case of Ikramullah v. The State (supra).

18. After hearing learned counsel for the parties, we have scanned the entire evidence available on record.

19. From the scrutiny of evidence, we have come to the conclusion that prosecution has failed to establish it’s case against the appellants for the reasons that SHO had prior information in spite of that SHO avoided to call independent and respectable persons of the locality to witness the recovery proceedings. According to the prosecution case, two pieces of charas were recovered from each appellant, weight of each piece and their shape are not mentioned in the mashirnama. It is also not mentioned that how many grams were drawn from each piece for sending to the Chemical Examiner for analysis. From the perusal of evidence it transpired that no PW has deposed that after recovery of charas from the possession of both accused, same was handed over to the WHC of the Police Station for keeping it safely at the Police Station. Thereafter, according to the prosecution case, charas was sent to Chemical Examiner through HC Jhangal Khan but said HC has not been examined by the prosecution in order to satisfy the Court about safe transmission of the sample to the Chemical Examiner. There was delay in sending the charas to the Chemical Examiner, that has also not been explained. Learned Addl.P.G has pointed out that trial Court has also committed illegality while recording the evidence of PW-3 Muhammad Ameen in absence of defence counsel. Learned Addl.PG further pointed out that trial Court has committed illegality while recording the evidence of witnesses in one case and same evidence has been placed on record in other cases. Such procedure adopted by the trial Court was illegal. Under the law evidence in each case is to be recorded separately in presence of the accused but it has not been done in these cases. In the case of Ikramullah v. The State (supra) Hon'ble Supreme Court, regarding safe custody of the charas, has been pleased to observe as under:

“5. In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the Investigating Officer appearing before the learned trial Court had failed to even mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter, the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit.”

20. In this case, there are several circumstances which have created serious doubt in the prosecution case. For extending benefit of doubt several circumstances are not required as held by Hon'ble Supreme Court in the case of Tariq Pervez v. The State (1995 SCMR 1345), which reads as follows:

“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 matter of grace and concession but as a matter of right.”

21. For the above stated reasons, we have no hesitation to hold that prosecution has utterly failed to establish its case against the appellants and trial Court has failed to appreciate the evidence according to the settled principles of law. Resultantly, while extending benefit of doubt, appeals are allowed. Appellants Abdul Salam and Jibran are acquitted of the charge. Conviction and sentence recorded against the appellants Abdul Salam and Jibran are set aside. Appellant Abdul Salam is present on bail. His bail bond stands cancelled and surety is hereby discharged.

22. As regards appellant Jibran, it is stated by Mr.Ghulam Shabir Dayo, learned advocate for the appellants that he is confined at Central Prison in some other case. Appellant Jibran shall be released in this case, if no more required in any other case.

JUDGE

JUDGE

N.M.