IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Before:

            Mr. Justice Muhammad Iqbal Kalhoro

Mr. Justice Irshad Ali Shah

Crl.Jail.Appeal No.D-01 of 2018

Appellant:                              Muhammad Jawad Khan Pathan, in person.

Crl. Appeal No.D-03 of 2018

Appellant:                              Muhammad Jawad Khan Pathan, through              Mr. Abdul Rehman Bhutto, Advocate.

State:                                      Through Mr. Khadim Hussain Khoharo, Additional Prosecutor General.

Date of hearing:                    28.02.2018.

Date of judgment:                 28.02.2018.

JUDGMENT

IRSHAD ALI SHAH, J.- It is alleged that on 1.4.2017 at about 07.10 am the present appellant/accused was found travelling thorugh a passanger Bus with a bag therein were found 04 K.Gs of the Charas which was secured by police party of Excise P.S Kandhkot Circle, led by Excise Inspector Shamsuddin, for that he was booked and challaned in the present case.

2.                     The present appellant/accused denied the charge in the trial and prosecution to prove it, examined complainant/I.O Excise Inspector Shamsuddin, produced through him roznamcha entries relating to his departure and arrival at the said police station, mashirnama of arrest and recovery and FIR of the present case and report of Chemical Examiner. PW/Mashir E.C Waheed Ali and then closed the side.      

3.                     The present appellant/accused in his statement recorded under section 342 Cr.PC denied the prosecution allegations by pleading innocence. He examined D.W Mehmadullah in his defense but refused to examine himself on oath.

4.                     It was stated by DW Mehmadullah that when he reached the place of incident through his Coach, he found the present appellant/accused sitting there and on enquiry was informed by Excise police that they would release the present appellant/accused up-to 10.00 A.M. The very case according to him is false.

5.                     Learned trial Court found the present appellant/accused guilty for an offence punishable u/s.9 (c) of CNS Act, and convicted and sentenced him to undergo R.I for period of Six years and Six months with five of Rs.30,000/-, in case of his failure to make payment of fine to undergo S.I for period of Six months with benefit of Section 382-B PPC vide its judgment dated 19.12.2017, which was impugned by the present appellant/accused by way of jail appeal. Subsequent to it, a regular appeal was also filed on his behalf by his learned counsel. Both of the said appeals are now being heard and disposed of by us by way of a single judgment.

6.                     It is contended by learned counsel for the present appellant/accused that he being innocent has been involved in this case falsely by the Excise police after making foistation of Charas upon him, when he was going to Karachi through a Passenger Bus; that there is no independent witness to the incident; that there are material contradictions in the evidence of complainant and his witnesses, which have made the very case of the prosecution to be doubtful. By contending so, he sought for acquittal of the present appellant/accused.

7.                     The leaned Additional Prosecutor General has supported the impugned judgment by contending that it is based on cogent reasons.

8.                     We have considered the above arguments and perused the record.

9.                     It was stated by the complainant/Excise Inspector Shamsuddin that on the date of incident when he with his Excise police party was performing his duty at check-post adjacent to Vardak Petrol Pump Kashmore, there they found a Passenger Coach coming and on its last seat the present appellant/ accused was found sitting with a bag lying under his feet. It was secured and found containing four packets of Charas, each packet of Charas weighed to be 01 K.G, and from each packet of the Charas was separated 200 grams of Charas for chemical examination. The Charas so secured and separated then was sealed.  A mashirnama of arrest and recovery was prepared in presence of mashirs, and the appellant/accused with the recovery so made from him was taken to Excise P.S Kandhkot Circle where he was booked in the present case formally. During cross examination, it was stated by him that mashirnama of arrest and recovery was prepared by E.C Piyaro. In that respect, he was belied by PW/Mashir E.C Waheed Ali by stating that it was prepared by the complainant himself. Be that as it may be, it was further stated by the complainant during his cross examination that it was E.C Piyaro who recorded FIR of the present case, 161 Cr.PC statements of the witnesses and then he wrote the challan. If such exercise was undertaken by E.C Piyaro, then he for all the purposes was acting as Investigating Officer of the present case. In that situation, he should have been examined by the prosecution as a material witness. His non-examination has obviously deprived the present appellant/accused of his valuable right of defense. It may be stated further that during course of his examination, it was stated by him that it was a non Air-conditioned Coach, wherein the appellant/accused was found travelling. He in that respect was also belied by PW/Mashir E.C Waheed Ali who stated that it was an Air-conditioned Coach. The inconsistencies between the evidence of the complainant and his witness as are pointed above could not be lost sight of, which apparently have made their evidence to be doubtful.          Be that as it may be, the complainant and his witness were found unanimous in their version that 30/35 passengers were found sitting in a Passenger Coach whereby the present appellant/accused was found travelling. If it was so, then at least one amongst those passengers being independent person ought to have been asked to act as mashir of arrest of the present appellant/accused and recovery of alleged Charas from him. It was not done by the complainant party without any plausible explanation, which has made the very arrest of the present appellant/accused and alleged recovery of Charas from him to be doubtful one. Despite above, PW/E.C Abdul Hameed who allegedly took the Charas to the Chemical Examiner was not examined by the prosecution for no obvious reason. His non-examination could not be lost sight of.

10.                   The over-all discussion leads to a conclusion that the prosecution was not able to prove its case against the present appellant/accused beyond shadow of doubt, as is contended to be by learned counsel for the present appellant/accused.

11.                   The plea of innocence which the present appellant/accused has taken before learned trial Court has a force and cannot be brushed aside.

Result

12.                   In view of the facts and reasons, discussed above, the conviction and sentence which are recorded against the present appellant/accused by way of impugned judgment cannot be sustained, the same is set-aside. Consequently, the present appellant/accused is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. He shall be released forthwith, if no more required in any other case.

13.                   Both of the instant appeals were disposed of in above terms on 28.02.2018 by way of short order and these are the reasons for the same.

J U D G E 

                                                                                   J U D G E 

S.Ashfaq/PS.