ORDER SHEET

JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr. Appeal No.D- 38 of 2014

Present:

Mr. Justice Salahuddin Panhwar &

Mr. Justice Khadim Hussain Tunio.

Appellant: Murad Ali s/o Niaz Muhammad through Mr. Raja Hansraj Naurang, Advocate.

Respondent: The State through Mr. Shahid Shaikh, A.P.G.

Date of hearing: 28.12.2016.

Date of judgment: 28.12.2016.

J U D G M E N T

KHADIM HUSSAIN TUNIO J: - Through instant appeal, appellant Murad Ali has assailed judgment dated. 20^th March 2014, passed by learned Ist Additional Sessions Judge, Special Judge Under Control of Narcotics Substance, Hyderabad, whereby he (present appellant) was convicted and sentenced to suffer RI for 10 years and to pay the fine of Rs.50,000/-; in default thereof to suffer SI for six months more.

2. Succulently, relevant facts of the prosecution case are that on 22.06.2010 complainant SIP Sagheer Hussain Sangi SHO PS Hali Road alongwith his subordinate staff left PS for patrolling in the area; while patrolling reached near Railway Tanky where they received a tip-off that two persons, having charas, are coming on a motorcycle towards Hazar Colony: On such information, complainant reached at the pointed place and started snap checking of the vehicles. During checking they saw two persons coming on a motorcycle, who, tried to slip away but due to availability of stones there, the motorcycle was slipped; however the person sitting on the back side succeeded to escape away while the present appellant was apprehended, who disclosed the name of absconding accused as Mashooque s/o Allah Rakha by caste Mallah r/o Ward No.4, Sanghar. Thereafter, police party searched the appellant and since it was abandoned place hence could not succeed to arrange the private mashirs therefore, personal search of accused was conducted in presence of ASI Rao Muhammad Nasir and ASI Abdul Ahad Memon; recovered one motorcycle and charas weighing 03 kilo and 30 grams from the present appellant and 02 kilo and 20 grams charas which was thrown by absconding accused Mashooque. Thereafter, complainant brought the accused and case property to the police station and registered such FIR.

3. After usual investigation, challan was submitted and accused was sent up to face the trial.

4. Charge was framed at Ex.4 to which accused did not plead guilty and claimed to be tried vide plea at Ex.5.

5. In order to prove its case, the prosecution has examined only two witnesses i.e. complainant SIP Sagheer Hussain Sangi at Ex.06, he produced arrival and departure entries, memo of arrest and recovery, FIR and chemical report at Ex.6/A to 6/E. PW ASI Abdul Ahad Memon is recorded at Ex.07 and thereafter, prosecution closed its side vide statement at Ex.08.

6. Statements of accused Murad Ali u/s 342 Cr.P.C. was recorded at Ex.09, to which he denied the allegation leveled against him by the prosecution and stated that he is innocent and nothing has been recovered from him. He did not examine himself on Oath nor adduce any evidence in his defence.

7. Learned counsel for appellant inter alia contends that the judgment passed by the trial Court is against the criminal administration of justice; impugned judgment is perverse and shocking; learned trial Judge has decided the case in a hurried manner as the PWs were examined on 17.03.2014, statement of accused was recorded on 19.03.2014 and the judgment was announced on 20.03.2014 without examining the Investigation Officer of the case who was material and star witness of the case; trial judge while awarding the conviction has not considered the contradictions made in the evidence of the PWs and passed the judgment in a hasty manner; that no independent witness has been cited by the prosecution and both the PWs/mashirs are related inter se with the complainant; that the police party despite having prior information failed to collect any private person of the locality to act as mashir. He lastly contended that the charas allegedly recovered from the accuses has been foisted upon him and in fact no such incident has ever occurred and the appellant has been implicated in the case in hand due to enmity with the police party, he therefore, prays for acquittal of the accused.

8. On the other hand, learned A.P.G. for the State has vehemently opposed the acquittal of accused on the ground that offence committed by the appellant is against the society and is increasing day by day; though there are minor contradictions in the evidence of PWs but the same can easily be ignored while deciding the appeal.

9. Heard and perused.

10. Admittedly, the police had prior information of the alleged incident that the present appellant alongwith absconding accused was coming on motorcycle having narcotics in their possession but despite of that they did not bother to collect any private person to witness the incident. The exclusion of Section 103 of the Code by Section 25 of the Act is not meant to completely absolve the police from asking for private mashirs to witness a recovery process therefore, whenever an attempt to associate private mashirs is not likely to result in escape of the accused the same be not avoided.

11. Further, the prosecution has failed to examine the Investigation Officer which too without any plausible and cogent reason whatsoever. The importance of investigation of the investigating officer in such like cases is always material because it is not the ‘FIR’ on basis whereof one is sent up to face the trial but it is the outcome of the ‘investigation’. The investigating officer is not supposed to blindly accept what the complainant alleges in the FIR but he (Investigation Officer) , without being influenced from status or position of complainant, has to bring the truth on surface which even may even be unpleasant for complainant. Only, the investigation officer can examine the claim of complainant with regard to:

i) place of recovery;

ii) manner of recovery;

iii) safe custody of recovery articles till its receipt before Chemical Examiner;

hence non-examination of the Investigating Officer in such like cases shall always be fatal or least a material prejudice to accused. Here, it is worth to add that early disposal of a criminal case cannot be questioned unless such speed results in causing any prejudice or material irregularity. The weight of examination of the Investigation Officer perhaps was never attempted by prosecution or even by learned trial Court judge while concluding the trial without examining I.O or least satisfying that non-examination was is legally justified.

12. Though, above material irregularity is sufficient for setting aside the judgment and to remand the case but since we are conscious that remand of the cases should normally be avoided therefore, we proceed to examine material to see whether available material justifies remand or has sufficient dents for bringing benefit of doubt. We have perused the evidence of PWs in its entirety and found material contradictions in their evidence which can be fatal for the prosecution. Complainant SIP Sagheer Hussain in his cross examination has deposed that:-

“We all apprehended the accused. We did not chase escape away accused. It is correct to suggest that the place of incident is thickly populated area. We tried to collect private person but could not succeed. ASI Abdul Ahad Memon prepared memo on my dictation. I do not know the description of dress of accused when he was arrested. I weighed the charas through electronic scale. I separated the charas for chemical examination through knife. I weighed the charas with thelli. The mashirnama was prepared on clip board by sitting position on the earth.”

Whereas PW ASI Abdul Ahad in his cross examination has stated that:-

“I saw the accused with accused escaped towards Lal Quarter and we did not chase him. I myself wrote mashirnama of arrest and recovery. I wrote mashirnama within 20 to 25 minutes. We separated the charas for chemical examination through knife. We consumed 35 to 40 minutes in completing all formalities at the place of incident.”

13. From above, it is quite evident that the examined witnesses are not steadfast on material point’s i.e departure to alleged recovery of the contraband articles. Further, there is also delay in sending the representative part of the narcotics to the chemical examiner for examination and report and since no attempt was made by prosecution to prove safe custody thereof hence presumption legally would be against the prosecution. Since, it is settled principle of law that single doubt is sufficient for acquittal.

14. In view of what has been discussed above, we are of the considered view that the present appellant has made out a case for his acquittal. Accordingly, by our short order dated 28.12.2016, while setting aside the impugned judgment, we allowed this appeal and directed that the appellant shall be released forthwith if he is not required in any other custody case.

These are the reasons of said short order.

JUDGE