IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 162 of 2018

 

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

 

 

Appellant             :         Akber  Gadani, 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 29.11.2018 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.1000/- and in case of his failure to make payment of fine to undergo R.I for three 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 1170 grams of charas by police party of Crime Branch Sukur which was led by SIP Khushhal Khan, 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 Hadi Bux (Ex.04), he produced memo of arrest and recovery, PW-2 Complainant SIP Khushhal Khan  (Ex.5), he produced FIR, roznamcha entry and report of Chemical Examiner and then 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 the basis 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 SIP Khushhal Khan and mashir PC Hadi Bux that on 15.07.2015 they with rest of the police personnel were conducting patrol to apprehend absconding accused and proclaimed offenders when reached at Ayoub Gate, there they came to know through spy information that a person is selling charas at sweeper colony Sukkur. 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 were secured Rs.700/-, a T.T Pistol and black colour shopper containing charas in shape of 02 slabs and 22 pieces, those were weighed to be 1170 grams, out of them 85 grams and 90 grams of charas was sealed separately for purpose of Chemical examination, while remaining charas was sealed separately, 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 ‘B’ Section Sukkur, there he was book in the present case formally. It was further stated by the complainant that he on investigation recorded 161 Cr.P.C statements of the P.Ws and then dispatched the sample of 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 samples of chara were delivered to Chemical Examiner on 23.7.2015 with delay of about eight days to its recovery. What was done with the samples charas for intervening period of eight 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.               Strange enough 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 Akber Gadani under the impugned judgment dated 29.11.2018 passed by learned 1st Additional Sessions Judge/Special Judge Narcotic Sukkur in Special Case No.132/2015 arising out of Crime No.120/2015 P.S ‘B’ Section Sukkur 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