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