IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Special Narcotics Acquittal No.D-55 of 2017

Present

Mr. Justice Rasheed Ahmed Soomro,

Mr. Justice Irshad Ali Shah,

Appellant : Nooro @ Noor Hussain s/o Gul Hassan Bhatti

Through Mr. Zafar Ali Malgani, Advocate

State : Mr.Khadim Hussain Khooharo, A.P.G

Date of hearing : 04.07.2018

Date of decision : 04.07.2018

J U D G M E N T

IRSHAD ALI SHAH. J- The appellant by way of instant appeal has impugned judgment dated 27.09.2017, of learned Sessions Judge/Special Judge (CNS) Shikarpur, whereby the appellant was convicted and sentenced to undergo R.I for period of seven years and six months and to pay fine of Rs.35,000/-, or in default whereof, to undergo S.I for period of one month, for having committed an offence punishable under section 9 (c) of the C.N.S, Act 1997.

2. It is the case of prosecution that; on arrest from the appellant was secured 05 K.Gs of the Charas, by police party of P.S Lakhi Gate, Shikarpur, which was led by ASI Dilshad Ahmed, for that he was booked and challaned accordingly.

3. At trial, the appellant denied the charge and prosecution to prove it, examined PW-01 complainant ASI Dilshad Ahmed, produced through him “roznamcha” entries relating to his departure and arrival at P.S Lakhi Gate, Shikarpur, mashirnama of arrest and recovery and FIR of the present case. PW-02 Mashir HC Peeral, produced through him mashirnama of place of incident. PW-03 SIO/SIP Imdad Ali, produced through him report of Chemical Examiner and then closed the side.

4. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution allegations by pleading innocence by stating that; his cousin Himath Ali was arrested by the police of P.S, Garhi Yasin, Shikarpur and in order to secure his custody, Mst.Mehar Khatoon the mother of Himath Ali made an application before S.S.P Shikarpur, consequently custody of Himath Ali was shifted to P.S Patani at Sukkur, where he was killed in a fake encounter by police at the instance of Mr.Javed Jiskani, the then S.S.P Shikarpur. It was further stated by the appellant that Mst.Mehar Khatoon, the mother of deceased Himath Ali then filed an application u/s.22-A & B Cr.PC for recording of her FIR against the police personnel involved in death of his son Himath Ali, it was dismissed by learned Additional Sessions Judge/Hudood/Ex-Officio Justice of Peace, Sukkur, such order of dismissal of her application was impugned by Mst.Mehar Khatoon before Honourable High Court of Sindh, Bench at Sukkur, by way of filing a constitutional petition whereby she was advised to lodge direct complaint of the incident with the Court having jurisdiction. It was further stated by him that when they were going to lodge direct complaint in respect of above said incident, he was apprehended by the police and then was involved in this case falsely. By stating so, he submitted all the requisite documents. He did not examine anyone in his defence or himself on oath in disproof of the prosecution allegation.

5. On evaluation of evidence, learned trial Court convicted and sentenced the appellant by way of judgment dated 27.09.2017, which the appellant has impugned before this Court by way of instant appeal, as stated above.

6. It is contended by learned counsel for the appellant that there is no independent witness to the incident, the case property was sent to the chemical examiner with delay of about three days to its recovery without any plausible explanation to such delay, the defense plea put forth by the appellant was not considered by learned trial Court in juxta-position with the evidence of the prosecution in its true perspective. By contending so, he sought for acquittal of the appellant.

7. Learned A.P.G has supported the impugned judgment.

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

9. It was stated by complainant by ASI Dilshad Ahmed and PW/Mashir HC Peeral that on 24.06.2016, they with rest of the police personnel of P.S Lakhi Gate, Shikarpur, when were conducting patrol, when reached adjacent to Mujeeb Garden, there at about 1700 hours found coming a Van from Larkana side, out of it, a person alighted, he was having straw bag in his hand, he was apprehended, on enquiry he disclosed his name to be Noor Hussain, on search from him was secured Rs.100/-, the straw bag which he was having, it was found containing five slabs of Charas, those were weighed to be 05 K.Gs and were sealed, a mashirnama of arrest and recovery was prepared at the spot. The perusal of such mashirnama reveals that it was prepared at about 1700 hours. If it was prepared at 1700 hours, then where the time consumed in apprehending the appellant, making enquiry from him, conducting his search and affecting the recovery of Charas from him gone? No explanation to it is offered by the prosecution, which has made the preparation of such mashirnama allegedly at the place of incident to be doubtful. It was further stated by them that the appellant with the recovery so made from him then was taken to P.S Lakhi Gate, Shikarpur, there he was booked in the present case formally and further investigation was conducted by SIO/SIP Imdad Ali. During course of examination, it was admitted by the complainant that he did not ask any private person to act as witness/mashir. No circumstances which prevented him from doing so, he furnished, which appears to be significant. Non association of the independent person to witness the arrest and recovery without plausible justification has rendered the recovery of Charas from the appellant to be doubtful. It was stated by SIO/SIP Imdad Ali that after receipt of the FIR, the appellant and case property, he went at the place of incident and prepared such mashirnama in presence of mashirs Peeral and Gulsher. Both are police officials. Why he did not associate with him any independent person to witness the preparation of such mashirnama? No explanation to it is offered by the prosecution which too appears to be significant. It was further stated by him that he then recorded 161 Cr.PC statements of the PWs and thereafter on 27.06.2016, dispatched the case property to the Chemical Examiner. If it was so, then it was with delay of three days to its recovery. What was done with the case property for three days? As per SIO/SIP Imdad Ali, it was kept in police “Malkhana”. If it was so then the prosecution was under obligation to have examined incharge of police “MaIkhana” to prove safe custody of the property for the period when it was kept in police “Malkhana”. The name of the incharge “Malkhana” the prosecution has not been able to disclose in charge-sheet. What to talk of his examination. The perusal of report of the Chemical Examiner reveals that the property was delivered to him by PC Sooba Khan. If it was so, then PC Sooba Khan was to have been examined by the prosecution to prove the safe transportation of the case property to the Chemical Examiner. He was not examined by the prosecution for no obvious reason.

10. In case of Ikramullah & ors vs. the State(2015 SCMR-1003), it was held that;

“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 to mention the name of the police official who had taken the samples to the office of 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”.

11. The defence plea which the appellant taken was to the effect that he has been involved in this case by police falsely only to prevent lodging of direct complaint in respect of death of his cousin Himath Ali. In support of such plea, the appellant has produced sufficient documentary evidence, which could not be lost sight of. It is settled by now that the defence plea is to be considered in juxta-position with the evidence of prosecution.

12. In case of Waqar Nazir & ors vs. the State(2007 SCMR-661), it has been held that;

“---S. 342--- Defence version--- Benefit of doubt, extension of---Scope---Defence has only to make a possibility of its version being true and is not required to prove its plea beyond reasonable doubt---Statement of accused in defence, if found reasonably possibly from material on record then accused can be given benefit of doubt and acquitted---If reasonable possibility exists that defence plea might be true, same entitles the accused to benefit of doubt as of right---In case defence version received support from prosecution evidence, then benefit of doubt be given to accused”.

13. If the defence plea taken by the appellant is considered in juxta-position with the evidence of prosecution then the involvement of the appellant in this case on the part of the police appears to be doubtful.

14. In case of Faheem Ahmed Farooq vs.The State( 2008 SCMR-1572), it is held that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

15. In view of the facts and reasons discussed above, the impugned judgment could not be sustained, it is set-aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court.

16. The above are the reasons of short order dated 04.07.2018, whereby the instant appeal was allowed and the appellant was acquitted of the offence for which he was charged.

J U D G E