IN THE HIGH COURT OF SINDH,
BENCH AT SUKKUR
Criminal Appeal No. D – 149 of 2018
Before;
Mr. Justice Muhammad Iqbal
Mahar
Mr. Justice Irshad Ali
Shah
Appellant : Qurban alias Irfan Shaikh, through Mr.
Mujeeb-ur-Rehman Soomro, 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 01.11.2018 passed by learned 1st
Additional Sessions Judge/Special Judge CNSA Sukkur, whereby he has been convicted and sentenced to
undergo R.I for three years and to pay fine of Rs.1000/-
and in case of his failure to make payment of fine to undergo R.I for fifteen 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 appeal are that the
appellant allegedly was found in possession of 650 grams of charas
by police party of P.S Duber
which was led by ASI Sanaullah,
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 ASI Sanaullah (Ex.5), he produced roznamcha
entry and FIR of the present case, PW-2 SIO/SIP
Apeel Ahmed (Ex06), he produced memo of place of
incident and report of Chemical Examiner, PW-3 Mashir
PC Bhooral (Ex.7), he produced memo of arrest and
recovery 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 the evidence which was produced by the prosecution at
trial being inconsistent and doubtful has been believed by learned trial Court 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 ASI Sanaullah and PW mashir PC Bhooral that on 16.11.2014
they with rest of the police personnel were conducting patrol when reached at diversion
of Jatoi garden there they came to know through spy
information that a person with charas is waiting for
conveyance at Jatoi garden. On such information, they
proceeded to the pointed place. If for the sake of arguments, it is believed that
they 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 the pointed place they
apprehended the appellant and on search from him was secured charas in shape of three pieces, those were weighed to be
650 grams, those were sealed for purpose of Chemical examination, a 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 Duber,
and further investigation as per complainant was conducted by SIO/SIP Apeel Ahmed Shar. Complainant in that respect is belied by PW mashir PC Bhooral by stating that
the further investigation was conducted by one Syed. The inconsistency between
the evidence of the complainant and PW mashir PC Bhooral on point of investigating officer Shar or Syed has has made the
further investigation to be doubtful. It was stated by SIO/SIP
Apeel Ahmed Shar 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 it was delivered to Chemical Examiner on 01.12.2014 with
delay of about fifteen days to its recovery. What was done with the charas for intervening period of fifteen 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 Qurban
alias Irfan Shaikh under
the impugned judgment dated 01.11.2018 passed by learned 1st
Additional Sessions Judge/Special Judge Narcotic Sukkur
in Special Case No.121/2014 arising out of Crime No.96/2014 P.S
Duber 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