IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-24 of 2016

Present:

Mr. Justice Rasheed Ahmed Soomro,

Mr. Justice Irshad Ali Shah,

Appellant : Jacom son of Sawan Malik

Through Mr. Shahbaz Ali Khan Brohi, Advocate

State : Mr.Raja Imtiaz Ali Solangi, A.P.G

Date of hearing : 17.07.2018

Date of decision : 17.07.2018

J U D G M E N T

IRSHAD ALI SHAH, J.- The appellant by way of instant appeal has impugned judgment dated 03.05.2016, of learned Sessions Judge/Special Judge (CNS) Shikarpur, whereby he was convicted and sentenced to undergo R.I for four years and six months and to pay fine of Rs.20,000/-, and in case of his default in payment of fine, to undergo S.I for period of five months, with benefit of section 382-B Cr.PC, for 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 1300 grams of Charas by police party of P.S Stuart Ganj, Shikarpur, which was led by ASI Ghulam Rasool, for that he was booked and challaned to face trial for the above said offence.

3. At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined PW-01 complainant ASI Ghulam Rasool, produced through him “roznamcha” entries relating to his departure and arrival at P.S Stuart Ganj, Shikarpur, mashirnama of arrest and recovery and FIR of the present case, PW-02 SIO/SIP Farzand Ali, produced through him mashirnama of place of incident and report of chemical examiner, PW-03 Mashir PC Muhammad Nawaz and then closed the side.

4. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that he has been involved in this case falsely by the police by making foistation of Charas upon him on account of his failure to pay bribe to the police, otherwise according to him, he was apprehended by police of P.P Faizo Laro on 04.07.2014 and such news was published in daily newspaper “Kawish” dated 05.07.2014. In support of what was stated by the appellant he produced copy of daily newspaper Kawish and certified true copy of deposition of PW PC Rahim Bux recorded in case/Crime No.119/2014.

5. On evaluation of evidence, learned trial Court convicted and sentenced the appellant by way of impugned judgment, as stated above.

6. It is contended by learned counsel for the appellant that there is no independent witness to the incident; no much reliance could be placed upon the evidence of the police personnel being interested, the case property was sent to the chemical examiner with delay of about three days, the person who has taken the case property to the chemical examiner, the prosecution has not been able to examine. 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 Ghulam Rasool and PW/Mashir PC Muhammad Nawaz that on 08.07.2014, they with rest of the police personnel when were conducting patrol, when reached on road adjacent to Manchar Shah graveyard, there at about 1840 hours, they found the appellant standing, he was apprehended after chase and on search from him were secured Rs.100/- and a plastic shopper, it was found containing Charas in shape of seven pieces, those were weighed to be 1300 grams, those were sealed, a mashirnama of arrest and recovery then was prepared at the spot and the appellant with the recovery so made from him was taken to P.S Stuart Ganj, there he was booked in the present formally and further investigation was conducted by SIP Farzand Ali. During course of their cross examination, it was admitted by them that the place of incident is situated on busy road and it is surrounded by houses. If it was so, then it was easy for them to have arranged for an independent person to have witnessed the incident. It was not done by them for no obvious reason, which appears to be significant and reflects doubt. It was stated by SIO/SIP Farzand Ali that on investigation he recorded 161 Cr.PC statements of the PWs, visited the place of incident, prepared such mashirnama. He apparently did not associate with him any independent person to witness the preparation of mashirnama of place of incident, which too appears to be significant. It was further stated by him that he then dispatched the property to chemical examiner and after usual investigation submitted challan of the case. The perusal of report of Chemical Examiner reveals that the property was delivered to him by PC Mir Khan on 11.07.2014. If it was so, then it was with delay of about three days to its recovery. In that situation, the prosecution was under lawful obligation to have examined the incharge of Malkhana and PC Mir Khan, to prove the safe custody and transmission of the property to the chemical examiner. Neither incharge of Malkhana nor PC Mir Khan were examined. In that situation, it could be concluded safely that the safe custody of charas and its transmission to the chemical examiner the prosecution has not been able to prove beyond doubt.

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

“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. It was the case of the appellant that he was apprehended by police party of P.P Faizo Laro on 04.07.2014. If it was so then it was much before his formal arrest in the present case. In that situation, his plea ought not to have been lost sight of by learned trial Court. If it would have been considered in juxta-position with evidence of prosecution then it was somewhat strong and was enough to make it believe that the case of prosecution against the appellant was not free from doubt.

12. 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.

13. For what has been 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.

14. Above are the reasons of short order dated 17.07.2018, whereby the instant appeal was allowed and the appellant was acquitted of the offence for which he was charged, tried and convicted by learned trial Court.

J U D G E