IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr.J.A.No. D –215 of 2017

Before Mr.JusticeNaimatullahPhulpoto

Mr.JusticeShamsuddinAbbasi.

Appellant: Munir Hussain @ Munawar @ MunoJatoi though Mr.Bakhshan Khan Mahar Advocate.

Respondent: The State

throughMr.Zulifqar Ali JatoiAddl.P.G.

Date of hearing 17^th July, 2018.

JUDGMENT.

SHAMSUDDIN ABBASI, J:-Munir Hussain alias Munawar alias Muno appellant was tried by learned Sessions Judge/Special Court for (CNS) Ghotki in Special Case No.27 of 2017 arising out of Crime No.41/2017 Police Station ‘B’ Section, Ghotki registered for offences under Section 9(c) CNS Act, 1997. On the conclusion of trial, appellant was found guilty. By judgment dated 04.12.2017, he was convicted under Section 9 (c) Control of Narcotics Substance Act 1997 and sentenced to 04 and 1/2 years R.I and to pay the fine of Rs.20,000/- in case of default in payment of fine, he was ordered to suffer 05 month S.I. The benefit of Section 382-B, Cr.P.C was extended to him. The appellant has challenged the impugned judgment through instant appeal.

2. The brief facts of the prosecution case are that on 04.6.2017 ASI Munir Ahmed Hakro left Police Station ‘B’ Section Ghotki vide roznamcha entry No.07 at 1240 hours alongwith his subordinate staff namely PCsAzhar Ali Shah, RasoolBux and Driver PC Muhammad Iqbal for patrolling. During patrolling at different places, when police party reached near shrine of Ghulam Shah Ghazi, at about 1310l hours, they saw a person carrying plastic shopper in hand, who on seeing police party tried to escape away but he was apprehended at the spot. On enquiry, he disclosed his name as Munir Hussain @ Munawar @ MunoJatoi r/o near SubziMandiLarkana and a plastic shopper from his possession was secured in which 02 slabs of Chars were found. The police party got weighed Charas on spot, each slab became 1000 Grams, out of each slab 100 Grams were separated for Chemical Examination and sealed on spot. The accused admitted that he use to sell Chars and from his personal search, Rs.200/- and small knife were secured from right side pocket of his shirt. PC Azhar Ali Shah and PC RasoolBux were made mashirs and such mashirnama was prepared at the spot in presence of said mashirs. Thereafter, accused and case property were brought to the Police Station where ASI Munir Ahmed lodged F.I.R against accused on behalf of the State vide Crime No.41/2017 under Section 9(c) of the CNS Act, 1997. Usual investigation was conducted in the case and on the conclusion of investigation, case was challaned before the learned Sessions Judge Special Judge/Special Court for (CNS) Ghotki under Section 9(c) Control of Narcotics Substance Act 1997.

3. Trial Court framed charge against the accused Munir Hussain @ Munawar @ MunoJatoi u/s 9(c) of CNS Act 1997 at Ex.03, to which accused pleaded not guilty and claimed trial.

4. In order to prove it’s case, the prosecution examined PW 1 complainant ASI MunirhmedHakro at Exh.04, who produced memo of arrest and recovery, F.I.R and copies of entries of departure and arrival of Police Station, duly attested at Exh.04/A to D, PW-2 eye witness/mashir PC RasoolBux at Exh.5 was examined, who produced memo of wardhat at Exh.5/A in the last PW 3 Investigating Officer of the case SIP Hidayatullah at Exh.6 was examined, report of Chemical Examiner, copy of entry, list of criminal record of accused and P.Cs of FIRs bearing Crime Nos.01/2015 and 73/2016 at Exh.6/A to F. Thereafter, prosecution side was closed at Exh.7.

5. Statement of accused Munir Hussain alias Munawar @ MunoJatoi was recorded u/s 342 Cr.P.C, at Exh.08 in which he denied the allegations of the prosecution. Regarding chemical report, accused replied that he had no knowledge regarding report and it has been managed by the police. He has further stated that PWs have deposed against him as they are Police officials. Accused did not examine any witness in his defence. In reply to a question that what he has to say? accused claimed innocence and raised plea that he has been involved by the police at the instance of TashkeelHyder, with whom he has got enmity by foisting Chars. He further stated that he has been implicated in the case falsely as he was arrested by Larkana police and his custody was handed over to Ghotki police and thereafter his mother Mst.Siyani filed application u/s 491 Cr.P.C at Larkana Court regarding his illegal detention.

6. Learned trial Court after hearing the learned counsel for the accused and Prosecutor on the assessment of evidence convicted and sentenced accused as stated above.

7. It is contended by the learned counsel for the appellant that prosecution evidence is based upon two witnesses, out of two, one PW RasoolBux was declared hostile and he was cross examined by the prosecution. There are material contradictions and discrepancies in the evidence on material points produced by the prosecution at the trial. He further contended that appellant is resident of Larkana District and he was detained by Larkana Police against whom, mother of appellant, namely Mst.Siyani had filed an application under Section 491 Cr.P.C in the court of learned Sessions Judge, Larkana and thereafter custody of appellant was shifted by the Larkana Police to Ghotki Police and instant F.I.R was falsely lodged and he has placed certified copy of application under section 491 Cr.P.C filed by the mother of appellant. He further contended that place of incident is busy area and the police has failed to associate any independent witness to support the alleged recovery. He further contended that the prosecution has miserably failed to prove its case beyond shadow of doubt particularly on the point of safe custody as neither prosecution has examined Head Muhrer of Malkhana nor produced any Roznamcha entry of Malkhana. He further contended that Chemical Examiner has also not observed standard operational produce and finally he prayed for acquittal of the appellant from the charge.

8. On the other hand, learned Addl.P.G contended that prosecution has proved its case beyond any shadow of doubt and the appellant was arrested alongwith huge quantity of 02 KGs Chars in presence of mashirs and it has also come on record that recovered property was Chars as per the report of Chemical Examiner, therefore, he requests for dismissal of this appeal.

9. We have heard the learned counsel for the appellant, learned Addl.P.G and perusal the material available on record with their assistance.

10. We have perused the evidence of complainant/PW 1 ASI Munir Ahmed, who deposed that on 4.6.2017 he alongwith his sub-ordinate staff left Police Station for patrolling in the area vide Roznamcha entry No.07 and during patrolling from different places, when they reached near Dargah Ghulam Shah, they saw a person under shed of tree who on seeing them tried to escape away but they succeeded in apprehending him and recovered a plastic shopper from him, in which they found 02 slabs of Chars and due to non-availability of private persons complainant made PCsAzher Ali and RasoolBux as mashirs. Complainant also conducted personal search of accused and secured cash of Rs.200/- alongwith small knife form his right side pocket of his shirt. Recovered Chars was weighed on the spot and found 02-KGs and that each slab was of 01-KG. Complainant separated 100 Grams from each slab for chemical analysis and sealed the property at the spot and prepared memo of arrest and recovery in presence of mashirs and obtained their signatures. Thereafter, he brought the accused and the case property at Police Station and case was registered against the appellant. Thereafter, he handed over the case property and custody of accused to SIP HidayatullahAbbasi for investigation. He further deposed that on his pointation I.O has prepared the mashirnama of place of wardhat on same day at 1415 hours in presence of same mashirs. This PW was also cross examined at length and he deposed that it is a fact that no other person was seen by them while purchasing Chars from accused. He further deposed that he himself secured shopper from the possession of accused. However, he has denied that the place of recovery is busy area but at the same time he admitted that at the time of recovery, no person was available there. He also admitted this fact that word (AL VO RADA CAFÉ) was written over the slab of Chars. He also admitted that he has not written this fact in the mashirnama of recovery of Chars. He also admitted that he himself seen the property at the spot. He also admitted that he did not mention the numbers of currency notes. He also admitted that they consumed 35/40 minutes in whole proceedings of arrest, recovery and preparation of memo at the spot. However, he has shown unawareness regarding the enmity of accused with the landlord of the area namely TashkeelHyderJatoi. He also denied that Larkana police has handed over the custody of appellant to them on 01.07.2017 and Chars was foisted upon him and he was booked in this case.

11. We have also examined the evidence of PW PC RasoolBux who has deposed on the same line as deposed by the complainant ASI Munir Ahmed Hakro. It is admitted fact that this PW was declared as hostile on the point that he is not supporting the case of the prosecution regarding his recording statement under Section 161 CR.P.C by the I.O as well as visiting the place of wardhat and preparation of memo of place of incident and he was cross examined by the prosecutor with the permission of learned trial Court in which he has deviated from his first version that neither he has been examined by the I.O u/s 161 Cr.P.C nor the I.O has visited the place of incident in his presence and prepared such memo of incident. This PW has contradicted the complainant on the point that complainant stated that after leaving from PS they directly reached at the place of recovery and they did not stay any where, but this PW has stated that they stayed at Raja Petrol Pump for about 05 minutes during patrolling. He has also contradicted the complainant on the point of time in consumption at the place of incident regarding whole proceedings as per complainant they consumed 35/40 minutes at the place of incident whereas this PW deposed that they consumed 15/20 minutes in whole proceedings.

12. We have also examined the deposition of PW SIP Hidayatullah who has investigated the case and he deposed that on 4.6.2017 he was posted as SHO of PS ‘B’ Section, Ghotki on that date complainant ASI Muneer Ahmed Hakro handed over the custody of accusedalongwith recovered Chars, cash and small knife for investigation. He further deposed that on the same date, on the pointation of complainant he visited the place of incident and prepared memo of place of incident in presence of PC Azher Alia and PC RasoolBux. He further deposed that on 6.6.2017 case property was sent to the Chemical Examiner through HC Muhammad Ramzan and after usual investigation he submitted the challan in the learned trial Court. He was cross examined. He admitted that before sending Chars to the Chemical Examiner, the same was remained in custody of WHC, who kept it in Malkhana of Police Station. However, he has admitted that he did not make any person from the public to witness the proceedings and the distance between the Police Station and the place of wardhat was about 03-KMs.

13. We have also perused the report produced by the prosecution witnesses available at Exh.6-B which reveals that the case property was sent to Chemical Examiner on 6.2.2017 through HC Ramzan and same was received on the same day but the same was not as per standard operative procedure (SOP) of rules.

14. After examination of prosecution witnesses, it has come on record that place of recovery has been shown shrine/Dargah of Ghulam shah but surprisingly, the complainant and mashirs have stated that during the process of proceedings of arrest and preparation of mashirnama none attracted at the place of recovery. It is also evident that when I.O went to the place of incident to prepare mashirnma of place of incident, though it was 3-15-pm (day time) inspite of this fact, I.O did not associate any private person to act as mashir and cited PC Azher Ali Shah and PC RasoolBux as mashirs of place of incident. It appears that I.O either deliberately had not cited any private person as mashir or they have completed all the formalities at Police Station, which creates serious doubt.

15. Another aspect of the case is that according to the deposition of complainant word (AL VO RADA CAFÉ) was written over the pocket of Chars but mashirnamais silent on description and same fact has been admitted by the complainant that he has not mentioned this fact in the mashirnama. Another aspect of the case is that the complainant neither in the F.I.R nor in the mashirnamahas mentioned the denomination of currency notes, which also makes the case of the prosecution as doubtful. It is also pertinent to mention here that the mashir of this case was declared hostile by the prosecutor and with the permission of the Court he was cross examined and during cross examination of prosecutor he has deviated from his first version and admitted all the suggestions made by the prosecutor. At this stage how it is possible for us to consider the evidence of a person who has taken two versions at the same time. There are many contradictions in the evidence of prosecution witnesses. The complainant deposed that they did not make any halt during the patrolling and directly reached at the place of recovery from Police Station whereas PW 2 RasoolBux deposed that they stayed at Raja Patrol Pump for about 05 minutes. Another contradiction which has come on the record that complainant deposed that they consumed 35/40 minutes in respect of arrest of accused and recovery and preparation of mashirnama on the spot whereas PW 2 deposed that they consumed about 15/20 minutes in whole proceedings.

16. We have come to the conclusion that there are material contradictions and discrepancies in prosecution evidence, it is very difficult for us to give due weight to prosecution evidence in view of the admissions, discrepancies and contradictions, discussed herein above without independent corroboration, which is lacking in this case. Credibility of PWs washighly doubtful and untrustworthy. It is a well-settled law that no one should be construed into a crime unless his guilt is proved beyond reasonable doubt by the prosecution through reliable and legally admissible evidence. On the point of benefit of doubt, rule of Islamic Jurisprudence has been laid down in the judgment rendered by the Hon’ble Supreme Court of Pakistan in AyubMasih’s case (PLD 2002 SC 1048), wherein the apex Court has ruled as under:-

(5) That since then respondent/Akram Major detaining them in his illegal custody and neither he has produced them in any Court nor there is any case against them.

It is also pertinent to mention here that respondent has demanded Rs.one lac for the release of the detenue on the pretext that in case the money aforesaid is not paid to him he will involve the detenue in false and frivolous cases of heroin etc."

This petition came up before the High Court for hearing on 18-6-1990 and the High Court had directed Muhammad Akram, S.I., P.W.6 to appear in person before the Court to answer whether the alleged detenue were being detained by him, and if so, under what authority of law. In this view of the matter, reasonable possibility of the plea of false involvement of the appellant on account of filing of the habeas petition against Muhammad Akram P.W.6 on 17-6-1990 in the Lahore High Court, Lahore is very much there entitling the a appellant to the benefit of doubt”.

19. No doubt police witnesses are as good and equal as that of other independent witnesses and conviction can be recorded on their evidence but it is well settled law that their testimony should be reliable, defendable, trustworthy and confidence worthy. If such qualities are missing in their evidence then no conviction can be passed on the evidence of police witnesses and accused would be entitled to the benefit of doubt.

20. We would like emphasis on the quantity of evidence rather thenquality as held by the apex Court. In the present case prosecution has miserably failed to prove its case beyond any shadow of doubt on the point of safe custody. Neither any entry of Malkhana register has been produced by the witnesses in their evidence nor prosecution has examined incharge of Malkahana even prosecution has not examined HC Ramzan through whom case property was sent to the Chemical Examiner. In this respect we rely on a case of Ikramullah and others v The State (2015 SCMR 1002 in which Hon’ble apex Court took serious note of the safe custody of recovered property and held as under:-

“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 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 the Chemical Examiner and admitted 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 substances had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit”.

21. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. Reliance is placed on the case of Tariq Pervez v The State (1995 SCMR 1345).

22. For what has been discussed herein above, we are of the considered view that the prosecution has failed to discharge its liability of proving the guilt of the appellant beyond shadow of doubt. Therefore, while extending the benefit of doubt in favour of the appellant, we hereby set-aside the conviction and sentence recorded by the learned trial Judge by impugned judgment dated 04.12.2017, acquit the appellant of the charge and allow this appeal. The appellant is present on bail, his bail bond stands cancelled and surety discharged.

23. Foregoing are the reasons of a short order dated 17.07.2018, whereby this appeal was allowed.

JUDGE

Akber.

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr.J.A.No. D –215 of 2017

Before Mr.JusticeNaimatullahPhulpoto

Mr.JusticeShamsuddinAbbasi.

Appellant: Munir Hussain @ Munawar @ MunoJatoithough Mr.Bakhshan Khan Mahar Advocate.

Respondent: The State

throughMr.Zulifqar Ali JatoiAddl.P.G.

Date of hearing17^thJuly, 2018.

JUDGMENT.

SHAMSUDDIN ABBASI, J:-Munir Hussain alias Munawar alias Muno appellant was tried by learned Sessions Judge/Special Court for (CNS) Ghotki in Special Case No.27 of 2017 arising out of Crime No.41/2017 Police Station ‘B’ Section, Ghotki registered for offences under Section 9(c) CNS Act, 1997. The appellant was found guilty. By judgment dated 04.02.2017, he was convicted under Section 9 (c) Control of Narcotics Substance Act 1997 and sentenced to imprisonment for 04 and half years and to pay the fine of Rs.20,000/- in case of default in payment of fine, he was ordered to suffer 05 monthS.I. The benefit of Section 382-B, Cr.P.C was extended to him. The appellant has challenged the impugned judgment through instant appeal.

2. The brief facts of the prosecution case are that on 04.6.2017ASI Munir Ahmed Hakro left Police Station ‘B’ Section Ghotki vide roznamcha entry No.07 at 1240 hours alongwith his subordinate staff namely PC Azhar Ali Shah, PC RasoolBux and Driver PC Muhammad Iqbalfor patrolling. During patrolling at different places, when police party reached near Ghulam Shah Ghazi, at about 1310l hours, they saw a person having plastic shopper in hand, who on seeing police party tried to escape away but he was apprehended at the spot.On enquiry, he disclosed his name asMunir Hussain @ Munawar @ MunoJatoi r/o near SubziMandiLarkana and a plastic shopper from his possession was secured in which 02 slabs of Chars were found. The police party got weighed Charas on spot, each slab became 1000 Grams, out of each slab 100 Grams were separated for Chemical Examination and sealed on spot. The accused admitted that he use to sell Chars and from his personal search, Rs.200/- and small knife were secured from right side pocket of his shirt. PC Azhar Ali Shah and PC RasoolBux were made mashirs and such mashirnama was prepared at the spot in presence of said mashirs. Thereafter, accused and case property were brought to the Police Station where ASI Munir Ahmed lodged F.I.R against accused on behalf of the State vide Crime No.41/2017 under Section 9(c) of the CNS Act, 1997. Usual investigation was conducted in the case and on the conclusion of investigation, case was challaned before the learned Sessions Judge Special Judge/Special Court for (CNS) Ghotki under Section 9(c) Control of Narcotics Substance Act 1997.

3. Charge was framed against the accused Munir Hussain @ Munawar @ MunoJatoiu/s 9(c) of CNS Act 1997 at Ex.03, to which accused pleaded not guilty and claimed trial.

4. In order to prove it’s case, the prosecution examined PW 1 complainant ASI MunirhmedHakro at Exh.04, who produced memo of arrest and recovery, F.I.R and copies of entries of departure and arrival of Police Station, duly attested at Exh.04/A to D, PW-2 eye witness/mashir PC RasoolBux at Exh.5 was examined, who produced memo of wardhat at Exh.5/A in the last PW 3 Investigating Officer of the case SIP Hidayatullah at Exh.6 was examined, who produced corresponding letter under which the property was allegedly sent to Chemical Examiner, report of Chemical Examiner, copy of entry, list of criminal record of accused and P.Cs of FIRs bearing Crime Nos.01/2015 and 73/2016 at Exh.6/A to F. Thereafter, prosecution side was closed at Exh.7.

5. Statement of accused Munir Hussain alias Munawar @ MunoJatoi was recorded u/s 342 Cr.P.C, at Exh.08 in which he denied the allegations of the prosecution. Regarding chemical report, accused replied that he had no knowledge regarding report and it has been managed by the police. He has further stated that PWs have deposed against him as they are Police officials. Accused did not examine any witness in his defence. In a question that what he has to say? accused claimed innocence and raised plea that he has been involved by the police at the instance of TashkeelHyderwith whom he has got enmity by foisting Chars. He further stated that he has been implicated in the case falsely as he was arrested by Larkana police and his custody was handed over to Ghotki police and thereafter his mother Mst.Siyani filed application u/s 491 Cr.P.C at Larkana Court regarding his illegal detention.

6. Learned trial Court after hearing the learned counsel for the accused and Prosecutor on the assessment of evidence convicted and sentenced accused as stated above.

7. It is, inter alia, contended by the learned counsel for the appellant that prosecution witnesses are rest upon two witnesses and out of two, one PW RasoolBux was declared hostile and he was cross examined by the prosecution. There are material contradictions and discrepancies in the evidence produced by the prosecution at the trial. He further contended that appellant is resident of Larkana District and he was detained by Larkana Police against whom, mother of appellant, namely Mst.Siyani had filed an application under Section 491 Cr.P.C in the court of learned Sessions Judge, Larkana and thereafter custody of appellant was shifted by the Larkana Police to Ghotki Police and instant F.I.R was lodged and he has placed certified copy of application under section 491 Cr.P.C filed by the mother of appellant. He further contended that place of incident is busy area and the complainant has failed to associate any independent witness to support the alleged recovery. He further contended that the prosecution has miserably failed to prove its case beyond shadow of doubt particularly on the point of safe custody as neither prosecution has examined Head Muhrer of Malkhana nor produced any Roznamcha entry of Malkhana. He further contended that Chemical Examiner has also not observed standard operational produce and finally he prayed for acquittal of the appellant from the charge.

8. On the other hand, learned Addl.P.G contended that prosecution has provided its case beyond any shadow of doubt and the appellant was arrested alongwith huge quantity of 02 KGs Chars in presence of mashirs and it has also come on record that recovered property was Chars as per the report of Chemical Examiner, therefore, he requests for dismissal of this appeal.

9. We have heard the learned counsel for the appellant, learned Addl.P.G and perusal the material available on record with their assistance.

10. We have perused the evidence of complainant/PW 1 ASI Munir Ahmed, who deposed that on 4.6.2017 he alongwith his sub-ordinate staff left Police Station for patrolling in the area vide Roznamcha entry No.07 and during patrolling from different places, when they reached near Dargah Ghulam Shah, they saw a person under shed of tree who on seeing them tried to escape away but they succeeded in apprehending him and recovered a plastic shopper from him, in which they found 02 slabs of Chars and due to non-availability of private persons complainant made PC Azher Ali and PC RasoolBux as mashirs. Complainant also conducted personal search of accused and secured cash of Rs.200/- alongwith small knife form his right side pocket of his shirt. Recovered Chars was weighed on the spot and found 02-KGs and that each slab was 01-KG. Complainant separated 100 Grams from each slab and sealed the property at the spot and prepared memo of arrest and recovery in presence of mashirs and obtained their signatures. Thereafter he brought the accused and the case property at Police Station and case was registered against the appellant. He further deposed that F.I.R was written by WPC Muhammad Azher on his dictation. Thereafter, he handed over the case property and custody of accused to SIP HidayatullahAbbasi for investigation. He further deposed that on his pointation I.O has prepared the mashirnama of place of wardhat on same day at 1415 hours in presence of same mashirs. This PW was also cross examined at length and he deposed that it is a fact that no other person seen by them while purchasing Chars from accused. He further deposed that he himself secured shopper from the possession of accused. However, he has denied that the place of recovery is busy area but at the same time he admitted that at the time of recovery, no person was available there. He also admitted this fact that word (AL VO RADA CAFÉ) was written. He also admitted that he has not written this fact in the mashirnama of recovery of Chars. He also admitted that he himself seen the property at the spot. He also admitted that he did not mention the numbers of currency notes. He also admitted that they consumed 35/40 minutes in whole proceedings of arrest, recovery and preparation of memo at the spot. However, he has shown unawareness regarding the enmity of accused with the landlord of the area namely TashkeelHyderJatoi. He also denied that Larkana police has handed over the custody of appellant to them on 01.07.2017 and Chars was foisted upon him and he was booked in this case.

12. We have also examined the deposition of PW SIP Hidayatullah who has investigated the case and he deposed that on 4.6.2017 he was posted as SHO of PS ‘B’ Section, Ghotki on that date complainant ASI Muneer Ahmed Hakro handed over the apprehended alongwith recovered Chars, cash and small knife for investigation. He further deposed that on the same date, on the pointation of complainant he visited the place of incident and prepared memo of place of incident in presence of PC Azher Alia and PC RasoolBux. He further deposed that on 6.6.2017 case property was sent to the Chemical Examiner through PC_________ and after usual investigation he submitted the challan in the learned trial Court. He was cross examined. He admitted that before sending Chars to the Chemical Examiner, the same was remained in custody of WHC____, who kept it in Malkhana of Police Station. He further deposed that he sent the Chars to the Chemical Examiner through HC Ramzan. However, he has admitted that he did not make any person from the public to witness the proceedings and the distance between the Police Station and the place of wardhat was about 03-KMs.

14. After examination of prosecution witnesses, it has come on record that place of recovery was shown shrine/Dargah of Ghulam shah but surprisingly, the complainant and mashirs have stated that during the process of proceedings of arrest and preparation of mashirnama none attracted at the place of recovery. It is also evident that when I.O went to the place of incident to prepare mashirnma of place of incident, though it was 3-15-pm (day time) inspite of this fact, I.O did not associate any private person to act as mashir and cited PC Azher Ali Shah and PC RasoolBux as mashirs of place of incident. It appears that I.O either deliberately has not cited any private person as mashir or they have completed all the formalities at Police Station, which creates serious doubt.

15. Another aspect of the case is that according to the deposition of complainant word (AL VO RADA CAFÉ) was written over the pocket of Chars but mashirnama does not reflect this fact and same fact has been admitted by the complainant that he has not mentioned this fact in the mashirnama. Another aspect of the case is that the complainant neither in the F.I.R nor in the mashirnama has mentioned the denomination of currency notes, which also makes the case of the prosecution as doubtful. It is also pertinent to mention here that the mashir of this case was declared hostile by the prosecutor and with the permission of the Court he was cross examined and during cross examination of prosecutor he has deviated from his first version admitted all the suggestions made by the prosecutor. At this stage how it is possible for us to consider the evidence of a person who has taken two versions. There are many contradictions in the evidence of prosecution witnesses. The complainant deposed that they did not make any halt during the patrolling and directly reached at the place of recovery from Police Station whereas PW 2 RasoolBux deposed that they stayed at Raja Patrol Pump for about 05 minutes. Another contradic5tion which has come on record that complainant deposed that they consumed 35/40 minutes in respect of arrest of accused and recovery and preparation of mashirnama on the spot whereas PW 2 deposed that they consumed about 15/20 minutes in whole proceedings.

16. We have come to the conclusion that there are material contradictions and discrepancies available in the prosecution case and that

17. On the other hand the appellant has taken plea that he has enmity with local Wadera namely TashkeelHyderJatoi and at his instance Larkana Police had arrested him and mother of appellant approached to the Court of learned Sessions Judge Larkana and filed application u/s 491 Cr.P.C and the appellant has produced copy of such application filed by his mother in the Court of learned Sessions Judge, Larakna.:-

18. No doubt police witnesses are as good and equal as that of other independent witnesses and conviction can be recorded on their evidence but it is well settled law that their testimony should be reliable, defendable, trustworthy and confidence worthy. If such qualities are missing in their evidence then no conviction can be passed on the evidence of police witnesses and accused would be entitled to the benefit of doubt.

19. We would like emphasis on the quantity of evidence rather then quality as held by the apex Court. In the present case prosecution has miserably failed to prove its case beyond any shadow of doubt on the point of safe custody. Neither any entry of Malkhana register has been produced by the witnesses in their evidence nor prosecution has examined incharge of Malkahana even prosecution has not examined HC Ramzan through whom case property was sent to the Chemical Examiner. In this respect we rely on a case of Ikramullah and others v The State (2015 SCMR 1002.

JUDGE

Akber.