IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 144 of 2018

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

 

Appellant             :         Abdul Shakoor Jaigrani, through Mr. Rukhsar

                                      Ahmed M. Junejo, Advocate

 

Respondent         :         The State, through Mr. Abdul Rehman Kolachi

                                      Deputy Prosecutor General  

 

Date of hearing :           23.01.2019

Date of decision:          23.01.2019

 

JUDGMENT

IRSHAD ALI SHAH, J:-   The appellant by way of instant Criminal Appeal has impugned judgment dated 13.11.2018 passed by learned 1st Additional Sessions Judge/Special Judge CNSA Sukkur, whereby he has been convicted and sentenced to undergo R.I for two years and to pay fine of Rs.2000/- and in case of his failure to make payment of fine to undergo R.I for seven days for an offence punishable u/s 9(c) of Control of Narcotic Substances Act, 1997.

2.                 The facts in brief necessary for disposal of instant criminal appeal are that the appellant allegedly was found in possession of 1125 grams of charas by police party of P.S Rohri which was led by SIP Shoukat Ali Rajput, 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 Complainant SIP Shoukat Ali Rajput (Ex.5), he produced roznamcha entry, memo of arrest and recovery, memo of place of incident, report of Chemical Examiner,  PW-2 mashir PC Ahsan Ali (Ex06) 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 learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police and learned trial Court has believed the evidence of the prosecution without lawful justification. By contending so, he sought for acquittal of the appellant.

7.                 Learned DPG for the State by supporting the impugned judgment has sought for dismissal of the instant appeal.

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

9.                 It was stated by complainant SIP Shoukat Ali that on 01.08.2014 he with rest of the police personnel when was conducting patrol when reached at Murad Shah Phatak, there he came to know through spy information that a person is selling charas by the side of Murad Shah graveyard. The evidence of PW mashir Ahsan Ali is silent with regard to the receipt of any spy information prior to the incident. Be that as it may, it was stated by the complainant that on such information, he proceeded to the pointed place. If for the sake of arguments, it is believed that the complainant proceeded to the pointed place on information then he was under moral obligation to have associated with him independent person to witness the possible arrest and recovery. It was not done by him without any plausible explanation which has made his proceeding to the pointed place on information to be doubtful. It was further stated by him that at the pointed place he apprehended the appellant and on search from him were secured Rs.150/- and a plastic shopper, it was found containing two pieces of charas, those were weighed to be 1125 grams through an scale which was brought by PC Aamir. If PC Aamir was able to arrange for scale then it was easy for him to have arranged for independent person to witness the proceedings. It was not done for no obvious reason which reflects something wrong. Significantly PC Aamir was not examined by the prosecution. Be that as it may,  it was further stated by the complainant that from each piece of charas was taken out of 50 grams of charas for the purpose of chemical examination, the charas so secured and separated were sealed separately and memo of arrest and recovery then was prepared at the spot and then the appellant with the recovery so made from him was taken to police station Rohri. It was stated by the complainant during course of his cross examination that the memo of arrest and recovery was prepared by a police personnel at his dictation. Who that police personnel was? The prosecution has not disclosed his name which appears to be strange. It was further stated by him that appellant was booked in the present case formally. It was further stated by the complainant that on investigation he visited the place of incident prepared such memo, recorded 161 Cr.P.C statements of P.Ws and then dispatched the charas to Chemical Examiner and after usual investigation submitted challan of the case.

10.               The perusal of the report of Chemical Examiner reveals that the sample of charas was delivered to him on 05.08.2014 with delay of about four days to its recovery. What was done with the samples of charas for intervening period of four days? No explanation to it is offered by the prosecution.

11.              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.”

 

12.               No question was put to the appellant during course of his examination u/s 342 Cr.P.C to have his explanation on report of Chemical Examiner. In that situation, the report of Chemical Examiner could hardly be used against the appellant.

13.               In case of Muhammad Ashfaq versus The State                    (2014 P Cr.L J 1531), it has been held by Hon’ble Court that:-

“Section 342 Cr.P.C – Effect- If any incriminating piece of evidence was not put to accused in his statement recorded under section 342 Cr.P.C for his explanation, then same could not be used against him for his conviction.”

14.              The omissions which are pointed above are enough to make a conclusion that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

15.               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.”

16.               Above are the reasons of short order dated 23.1.2019 whereby the instant appeal was disposed of in the following term;

“Heard arguments of learned counsel for the appellant and learned DPG. For the reasons to be recorded separately, this appeal is allowed, the conviction and sentence awarded to  appellant Abdul Shakoor Jagirani under the impugned judgment dated 13.11.2018 passed by learned 1st Additional Sessions Judge/Special Judge Narcotic Sukkur in Special Case No.65/2014 arising out of Crime No.184/2014 P.S Rohri is set aside and the appellant is acquitted from the case. The appellant is in jail and he is directed to be released forthwith if not required in any other criminal case.”

 

Judge

Judge

ARBROHI