Judgment sheet.

IN THE HIGH COURT OF SINDH,CIRCUIT COURT, HYDERABAD.

Cr.Appeal No.D- 108 of 2016.

Present:

Mr. Justice Muhammad Iqbal Mahar.

Mr. Justice Mahmmood A Khan.

For hearing of M.A No.7956/2016 as well as main case.

Date of hearing:- 18.10.2017.

Date of Judgment:- 18.10.2017.

Mr. K. B. Lutuf Ali Leghari, Advocate for appellant.

Mr. Shahid Sheikh, DPG, for the State.

J U D G M E N T.

MUHAMMAD IQBAL MAHAR, J- This appeal is directed against the judgment dated 06.10.2016 passed by learned Sessions Judge/Special Judge Jamshoro in Special Case No.62 of 2015 [Re: State v. Mst. Sasui] arising out of Crime No.05/2015 of P.S. Thebath for offence under section 9 (c), Control of Narcotic Substance Act, 1997, whereby she was convicted and sentenced to suffer R.I. for 5 years and to pay fine of Rs.200,000/- and in case default thereof, to suffer R.I for six months more. However benefit of section 382-B, Cr.P.C. was extended to her.

2. Precisely, prosecution case is that on 28.05.2015 complainant, SIP/SHO, Gharib Nawaz Zardari along with his subordinate staff, was on patrolling duty vide entry No.8. After patrolling different places when they reached at bridge on Indus Highway, received spy information that one woman was selling Charas near Lucky Shah Sadar chowk. On such information the police party reached at pointed place and saw one woman having shopper in her hands standing there, who seeing the police party tried to run away but was apprehended at the spot at 1600 hours. The complainant party recovered shopper, containing Charas and cash of Rs 250/. On inquiry the woman disclosed her name as appellant and further disclosed that she used to sell the Charas. The Charas was weighed which became 1540 grams. Due to non-availability of private persons, the complainant sealed the property and prepared mashirnama in presence of police mashirs. The complainant brought the accused and case property at police station and lodged the F.I.R on behalf of the State.

3. After usual investigation, the IO submitted challan before the Court of learned Special Judge, who after completing all legal formalities framed charge against the appellant at Ex.2, to which she pleaded not guilty and claimed trial.

4. To substantiate the charge, prosecution examined complainant SIP Gharib Nawaz at Ex.4, who produced mashirnama of arrest and recovery, FIR departure and arrival entries, letter to Chemical Examiner, chemical report at Ex.4-A to Ex.4-E, mashir HC Ghulam Sarwar at Ex.5 and then learned D.P.P closed the side of prosecution vide statement at Ex.6.

5. Statement of appellant/accused was recorded u/s 342 Cr.P.C at Ex.7 in which she denied the allegations levelled against her and claimed innocence. She produced copies of two FIRs but neither she examined herself on oath nor led any evidence in defence. The learned trial Court after hearing the counsel for the parties passed impugned judgment.

6. Learned counsel for the appellant contended that the appellant is innocent and has falsely been involved in this case by the complainant due previous enmity; that there are material contradictions in evidence of prosecution witnesses which have not been considered by learned trial court; that the police party had proceeded towards the place of incident on advance information but they did not join any private person in recovery proceedings; that according to prosecution case, 11 pieces of Charas were recovered from the appellant but at the time of examination of PWs 21 pieces were produced in Court; that as per entry No. 9, P.C Arbab Ali, the mashir of arrest and recovery, was present at Malkhana which shows that the memo of arrest and recovery was prepared at PS; that the impugned judgment passed by learned Special Judge is contrary to law and facts of the case, therefore, appellant is entitled for acquittal.

7. Conversely, learned DPG appearing for the State submitted that no enmity with the complainant has been proved by the appellant; that whole property was sent to Laboratory and the report is positive; that the prosecution has succeeded to prove its case against the appellant beyond reasonable doubt. He, however, conceded that the sentence awarded to appellant is not in accordance with sentencing policy given in the case of Ghulam Murtaza V. The State and Ameer Zeb V. The State and he has recorded no objection if the sentence is reduced in the light aforesaid cases.

8. We have heard the arguments of learned counsel for the appellant, learned DPG for the State and have perused the record minutely.

9. Record reflects that the appellant was apprehended by the police and 1540 grams of Charas was recovered from her possession. The witnesses examined by the prosecution fully supported the prosecution case and corroborated the statements of each others. They are consistent on the material points that the appellant was arrested at spot, Charas was recovered from her possession, the Charas was sealed at spot in presence of mashirs and was sent to Laboratory. The complainant produced mashirnama of arrest and recovery, FIR, departure and arrival entries and Chemical report in evidence at the time of his examination. Despite lengthy cross examination by learned counsel for the appellant nothing could be brought on record adverse to the case of prosecution. Contradiction in evidence pointed out by learned counsel for the appellant is minor and due to lengthy cross examination but the same can be ignored. In this respect reliance can be placed upon case of Zulfiqar Ahmed and another V. The State (2012 SCMR 492).

10. Report of Chemical Examiner reveals that the seals of parcel were perfect as per copy sent by police and same was received on next day of the incident and it has been opined that the parcel was containing Charas.

11. As for as the contention raised by learned counsel for appellant that the complainant party had proceeded towards the place of incident on advance information but no private person was joined in recovery proceedings, it is necessary to mention here that provision of S-25 of Control of Narcotic Substance Act, 1997, excludes the application of S-103 Cr.P.C, in narcotics cases, secondly the complainant party was on patrolling duty when they received information and immediately rushed towards the pointed place where no private person was available, therefore such contention has no force. Furthermore, it has been held by honourable Supreme Court in number of the cases that the Police officials are as good witnesses as any other public witness unless the animosity is proved against them, therefore, evidence of police officials could not be discarded merely on the ground that they were police officials. In this respect we are fortified by case of Nur Hassan V. The State (1993 SCMR 1608).

12. Reverting to the contention of learned counsel for the appellant that 11 pieces of Charas were recovered from the possession of appellant but 21 pieces were produced in Court at the time of examination of PWs, it is stated that as per chemical report 11 pieces were received at Laboratory and it has come in evidence that the property was produced in Court in sealed condition and same was de-sealed in Court in presence of SPP and furthermore, the complainant and mashir have stated that pieces have been broken.

13. So far as the contention of learned counsel for the appellant that as per entry No.9, PC Arbab Ali was present at Malkhana at the time of arrest and recovery, it is made clear that we have examined the daily diary No. 9 which pertains to ROLKAR and was made by one WASI at 1700 hours, after the departure of complainant party for patrolling at 1530 hours, whereby he assigned the duties of police officials, secondly complainant and mahsir have categorically stated that at time of leaving PS at 1530 hours, for the purpose of patrolling PC Arbab Ali was with them and in his presence appellant was arrested and recovery of Charas was made and mashirnama was prepared at place of incident.

14. For what has been discussed above, we are of the opinion that the prosecution has successfully proved its case against the appellant beyond any reasonable doubt, therefore instant appeal being devoid of merits is dismissed. However it appears that the conviction and sentence awarded to the appellant by learned trial Court is not in accordance with schedule given in case of Ghulam Murtaza V. The State and upheld by honourable Supreme Court in case of Ameer Zeb V. The State, therefore while following the yardstick of sentence provided therein we, dismiss this appeal and reduce the sentence to 4 years and 6 months with fine of Rs. 20000/ in case default thereof to suffer S.I for 5 months more. It is made clear that benefit of section 382-B Cr.P.C has already been extended to the appellant by learned trial Court.

15. With above modification instant appeal is disposed of.

JUDGE

JUDGE.

Through instant constitutional petition, the petitioner has challenged the order dated 18.5.2017 passed by learned Additional Sessions Judge-II/Ex-Officio Justice of Peace, Dadu, in Criminal Miscellaneous Application No. 620/2016, whereby his prayer for direction to SHO to register his FIR has been declined.

The facts giving rise to this petition are that on 02.05.2016 at 00.45 am the proposed accused No. 1 to 8 being armed with official weapons entered the house of the petitioner, caused injuries to him and forcibly took away his gold ornaments, cash and licensed TT pistol. It is further stated that proposed accused took away two sons of the petitioner, namely, Ghulam Muhammad and Ghulam Rasool and left Ghulam Muhammad at some distance but murdered Ghulam Rasool showing false encounter and registered such FIR. The petitioner approached respondent No. 2 for lodging the FIR but he declined, therefore he approached the learned Justice of Peace, who also dismissed the application of petitioner.

Learned counsel for the petitioner submits that the proposed accused have committed not only a cognizable offence but a heinous offence. He further submits the son of the petitioner was murdered by the proposed accused while firing upon which fact has been corroborated by post mortem of deceased Ghualm Rassol. He also submits that the FIR of false encounter has been registered by the police in which none from the police party has sustained injury but respondent. No.2 avoided to lodge FIR of the petitioner. He adds that since the proposed accused entered the house of petitioner robbed valuable property, abducted two sons of the petitioner and murdered Ghulam Rasool which is a cognizable offence, therefore respondent No. 2 was bound to register the FIR of the petitioner. He submits that the impugned order is also against the law, hence is liable to be set aside.

Conversely, learned counsel for the proposed accused supported the impugned order and submitted that the son of the petitioner was criminal and involved in many cases and he was murdered during encounter by the Police officials/proposed accused while discharging their duties and such FIR has already been lodged by the police, therefore he prayed that instant petition may be dismissed.

Learned AAG adopts the arguments advanced by the learned counsel for the proposed accused.

Perusal of record reflects that there are serious allegations against the police officials/proposed accused that they entered the house of petitioner, committed robbery and murdered Ghulam Rasool, the son of petitioner, by firing upon him which fact has been admitted by them in their FIR that during encounter with the police Ghulam Rasool lost his life. Post mortem report of Ghulam Rasool reveals the cause of death by firm arm injuries, caused from a short distance which is not case of proposed accused. Prime facie, it appears that a cognizable offence has been committed and as per section 154 CrPC no discretion is left with SHO to avoid the lodging of FIR, if the information transpires that a cognizable offence has been committed.

In the circumstances of the case, this petition is allowed and order dated 18.5.2016 passed by learned Additional Sessions Judge-II /Ex-Officio Justice of Peace, Dadu in Criminal Miscellaneous Application No. 620/2016 is set aside, the respondent No. 2 is directed to record statement of the petitioner and if such statement narrates story of cognizable offence, he shall incorporate the same into 154 CrPC Book. However, no coercive action shall be taken against the accused till the tangible evidence comes on record.

The petition stands disposed of in above terms.

Judge.