IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. D – 03 of 2019

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

 

Appellant             :         Abdul Wahab alias Soreto Korai in person

 

Respondent         :         The State, through Mr. Aftab Ahmed Shar,

                                      Additional PG     

 

Date of hearing :           22.01.2019

Date of decision:          22.01.2019

 

JUDGMENT

IRSHAD ALI SHAH, J:-   The appellant by way of instant Criminal Jail Appeal has impugned judgment dated 05.01.2019 passed by learned 1st Additional Sessions Judge/Special Judge CNSA Sukkur, whereby he has been convicted and sentenced to undergo R.I for one year and to pay fine of Rs.1000/- and in case of his failure to make payment of fine to undergo RI for two days for an offence punishable u/s 9(b) of Control of Narcotic Substances Act, 1997.

2.                 The facts in brief necessary for disposal of instant criminal jail appeal are that the appellant allegedly was found in possession of 550 grams of charas by police party of P.S Pano Akil which was led by ASI Sobdar Ali, for that he was booked and reported upon by the police.

3.                 At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined PW-1 mashir PC Shoukat Ali (Ex.4), he produced memo of arrest and recovery, PW-2 mashir PC Muhammad Juman (Ex05), he produced memo of place of incident, PW-3 SIO/ASI Daimuddin (Ex.06), he produced report of Chemical Examiner and PW-4 complainant ASI Sobdar Ali (Ex.07), he produced roznamcha entry, and FIR of the present case and then prosecution closed the side.

4.                 The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence. He did not examine himself on oath or any one in his defence. 

5.                 On evaluation of evidence so produced by the prosecution learned trial Court convicted and sentenced the appellant, as stated above.

6.       It is contended by the appellant that he being innocent has been involved in this case falsely by the police without lawful justification. By contending so, he sought for his acquittal.

7.       Learned Additional PG for the State by supporting the impugned judgment sought for dismissal of the instant appeal.

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

9.       It is stated by complainant ASI Sobdar Ali and PW mashir                PC Shoukat Ali that on 7.06.2011, they with rest of the police personnels were conducting patrol when reached at Sadhuja chowk, there they came to know through spy information that a person is selling charas by the side of Ice Factory of Shafqatullah Shaikh. On such information, they proceeded to the pointed place. If for the sake of arguments, it is believed that the complainant and his witness proceeded to the pointed place on information then they were under moral obligation to have associated with them independent person to witness the possible arrest and recovery. It was not done by them without any plausible explanation which has made their proceeding to the pointed place on information to be doubtful. It was further stated by them that at place of incident they apprehended the appellant and on search from him was secured Rs.250/- and a plastic shopper, it was found containing four pieces of charas, those were weighed to be 550 grams, out of those, one piece of charas weighing to be 50 grams was sealed separately for purpose of chemical examination, and this indeed was subjected to chemical examination. In that situation, the liability of the appellant if any was only to the extent of 50 grams. The reference in that context could be made to the case of Ameer Zeb vs. The State ( PLD 2012 Supreme Court 380), wherein it has been held by Hon’ble Apex Court that;

---S,9(c)---Recovery of Narcotic substance—Reappraisal of evidence---Narcotic in different packs---Chemical examination---Procedure---Charas in 80 cakes/slabs contained in 20 packets kept in 22 baskets was allegedly recovered from the possession of accused but only a “small” and unspecific quantity was taken from every packet as a sample and then those samples were mixed up and made into one sample of 10 grams which was thereafter sent to Chemical Examiner for analysis---Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life which was maintained by High Court---Validity--- If 80 cakes/slabs had statedly been recovered from possession of accused and total weight of entire quantity was 20 kilograms then, each cake/slab weighed about 250 grams---As only one sample of 10 grams had been sent to Chemical Examiner for analysis and report in that regard had been received in positive, therefore, for sake administration of justice, it could be concluded that accused was liable to be held responsible for having only one cake/slab of charas weighing 250 grams in his possession which offence attracted provisions of S.9(b) of Control of Narcotic Substances Act, 1997.”

 

10.              It was further stated by complainant and his witnesses that a memo of arrest and recovery was prepared at the spot and then the appellant with the recovery so made from him was taken to police station Pano Akil, there he was booked in the present case formally. It was specifically stated by the PW mashir PC Shoukat Ali during course of his cross examination that he does not know about the availability of weighing scale in investigating kit. Such uncertaintity on the part of PW mashir PC Shoukat Ali has made the allegation of the prosecution that the charas was weighed at the place of incident to be doubtful. It was further stated by them that the further investigation of the case was conducted by SIO/ASI Daimuddin. It was stated by SIO/ASI Daimuddin that on investigation, he recorded 161 Cr.P.C statements of the PWs, visited the place of incident, prepared such memo and then dispatched the sample of charas to Chemical Examiner and after usual investigation submitted challan of the case.

11.     The perusal of the report of Chemical Examiner reveals that the sample of charas was delivered to him on 15.6.2011 with delay of about eight days to its recovery. What was done with the charas for intervening period of eight days? No explanation to it is offered by the prosecution.

12.               In case of Ikramullah and others vs. The State (2015 SCMR 1002), it has been held by Hon’ble Apex Court that;

The prosecution was not able to establish that after alleged recovery of substance so recovered was either kept in safe custody or that samples were taken from recovered substance had safely been transmitted to office of Chemical Examiner without being tampered with or replaced while in transit.”

 

13.              The omissions as are pointed above are enough to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

14.               In case of Tarique Bashir vs.The State (1995 SCMR 1345), it has been held by Hon’ble Apex Court that;

For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”

15.               Above are the reasons of short order dated 22.1.2019 whereby the instant appeal was disposed of in the following term;

For the reasons to be recorded separately this appeal is allowed, the conviction and sentence awarded to appellant Abdul Wahab alias Seroto Korai under the impugned judgment dated 05.01.2019 passed by learned 1st Additional Sessions Judge / Special Judge Narcotic Sukkur in Special Case No.11/2011 arising out of Crime No.159/2011 police station Pano Akil, is set aside and the appellant is acquitted from the charge. The appellant is produced in custody and is remanded back to jail and he shall be released forthwith if not required in any other criminal case.”

Judge

Judge

ARBROHI