IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Special Narcotics Appeal No. D-65 of 2017
Before:
Mr. Justice Muhammad Iqbal Kalhoro
Mr. Justice Irshad Ali Shah
Appellant: Mohsin son of Ali Gohar Makol, through Mr.Habibullah Ghouri, Advocate
State : Mr.Khadim Hussain Khooharo,
Addl. Prosecutor General
Date of hearing: 14.02.2018.
Date of judgment: 14.02.2018.
JUDGMENT
IRSHAD ALI SHAH, J.- It is the case of prosecution that on arrest from present appellant/accused was secured 3700 grams of Charas, allegedly by police party of Police Station Waleed led by ASI Ghulam Ali, for that he was booked and challaned in the present case.
2. The present appellant/accused denied the charge and prosecution to prove it examined PW/Mashir HC Imtiaz Hussain, produced through him mashirnama of arrest and recovery, mashirnama of place of incident, SIO/SIP Sajjad Ahmed produced through him roznamcha entry relating to his departure and arrival at P.S Waleed and FIR of the present case. Complainant/ASI Ghulam Ali produced through him roznamcha entry relating to his departure from P.S Waleed. PW/PC Safdar Ali who taken the case property to the chemical examiner could not be examined by the prosecution on account of his death, instead of him was examined ASI Ali Hassan Mangi and then prosecution closed his side.
3. The present appellant/accused in his statement recorded u/s 342 Cr.PC denied the prosecution allegation by pleading innocence, he did not examine anyone in his defense or himself in disproof of the prosecution allegation.
4. On conclusion of the trial, after due hearing, learned Special Judge for C.N.S Larkana finding the present appellant/accused guilty for an offence punishable u/s 9 (c) of the CNS Act, for being in possession of 3700 grams of Charas convicted and sentenced him to undergo R.I for period of 06 years and 06 months with fine of Rs.30,00/-, in case of his failure to make payment of fine to undergo S.I for period of six months vide his judgment dated 25.11.2017, which is impugned by the present appellant/accused before this Court by way of instant appeal.
5. It is contended by learned counsel for the appellant/accused that he being innocent was involved in this case by police at the instance of local Zamindar, there is no independent witness to the incident though the police was having prior information of the incident, the case property has been sent to the chemical examiner with unexplained delay of about eight days to lodging of the FIR, by contending so, he sought for acquittal of the present appellant/accused. In support of his contention, he has relied upon case of Ikramullah and others Vs. The state, which is reported at 2015 SCMR-1002.
6. Learned Addl. Prosecutor General by supporting the impugned judgment has sought for dismissal of the instant appeal. In support of his contention, he relied upon case of Tariq Mehmood vs. The state, which is reported at PLD 2009 Supreme Court-39.
7. I have considered the above arguments and perused the record.
8. It was stated by the complainant ASI Ghulam Ali and PW/Mashir PC Imtiaz Hussain during course of their examination that on 23.10.2016, they with rest of the police personnel while were conducting patrol within jurisdiction of P.S Waleed when reached at outside of Waleed Muhalla, there they came to know through spy information that the present appellant/accused wanted by them in FIR Crime No.41/2001, u/s. 9 (c) of the CNS Act, is going out from his house to sell Charas. On such information, according to them, they proceeded to the pointed place, if for the sake of arguments it is believed that they proceeded to the pointed place on information then they were under lawful obligation to have associated with them independent person to witness the possible arrest and recovery. It was not done by them, for no obvious reason. In that context, it is rightly being contended by learned counsel for the appellant/accused that very proceedings by the complainant and his police party to the place of incident is to be judged with reasonable doubt.
9. Be that as it may be, it was further stated by the complainant and his witnesses that they reached at the place of incident, apprehended the present accused, he was having a plastic shopper, it was secured, it was found containing Charas in shape of five packets, which was weighed to be 3700 grams, it was sealed, a mashirnama of arrest and recovery then was prepared at the spot, the present accused then was taken to P.S Waleed, there he was booked in the present case formally and further investigation was conducted by SIO/SIP Sajjad Ahmed Bhatti.
10. On asking, it was stated by the complainant that he did not find any public person at the place of incident. The complainant in that respect was belied by PW/Mashir PC Imtiaz Hussain by stating that the public persons were found crossing through the place of incident but they were not willing to act as mashir. In presence of such inconsistency, it is rightly being contended by learned counsel for the present appellant/accused that the very recovery of the alleged Charas from the present appellant/accused at place of incident is to be judged with reasonable doubt.
11. Next evidence is that of SIO/SIP Sajjad Ahmed Bhatti, it was stated by him during course of his examination that on investigation, he visited the place of incident, prepared such mashirnama, he then recorded 161 Cr.PC statements of the PWs, then dispatched the Charas to the Chemical Examiner and after usual investigation submitted challan of the case.
12. On asking, SIO/SIP Sajjad Ahmed was fair enough to admit that the Charas was sent to the chemical examiner on 31.10.2016. If it was so, then it was with delay of about 08 days. The delay according to him occurred on account of permission, which he obtained from Senior Superintendent of Police for doing the needful. Nothing has been brought on record, which may indicate that such a delay occurred on account of obtaining permission from Senior Superintendent of Police Larkana for sending the Charas to Chemical Examiner. In that context, it is rightly being contended by learned counsel for appellant/accused that benefit of such delay could be extended to present appellant/accused.
13. The perusal of report of chemical examiner reveals that the each packet of the Charas sent to him was consisting of two slabs. If it was so, then in all those were ten slabs. If report of the chemical examiner believes to be true then it belies complainant ASI Ghulam Ali and PC/Mashir PC Imtiaz Hussain that on arrest from present accused were secured only five packets of the Charas. In that context, it is rightly being contended by learned counsel for appellant/accused that the manipulation of the Charas could not be lost of sight.
14. The conclusion which could be drawn of the above discussion would be that the prosecution has not been able to prove its case against the appellant/accused beyond shadow of doubt.
15. In the said circumstances, the plea of innocence which the present appellant/accused has raised before learned trial Court ought not to have been lost of sight.
16. In case law which is relied upon by learned Addl. Prosecutor General, the recovery of Charas was 15 K.Gs and there was no material discrepancies and contradictions in the evidence of persecution. In the instant case, that discrepancies and contradictions in evidence of the prosecution as discussed above could not be lost of sight.
Result
17. In view of the facts and reasons, discussed above, the conviction and sentence which is recorded against the present appellant/accused by way of impugned judgment could not be sustained, it is set-aside. The present appellant/accused is acquitted of the offence for which he is charged. He to be released forthwith, if is no more required in any other case.
18. The instant appeal was allowed by way of short order during early hours of the day and these are the reasons for the same.
J U D G E
Ashfaq.S/**