IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No.D-02 of 2018

Present

Mr. Muhammad Iqbal Mahar,

Mr. Justice Irshad Ali Shah,

Appellant : Sikiladho @ Sikandar son of Khattan

Bozdar in person.

State : Mr. Abdul Rehman Kolachi, D.P.G

Date of hearing : 09-05-2019

Date of decision : 09-05-2019

J U D G M E N T

IRSHAD ALI SHAH, J.- The appellant by way of instant appeal has impugned judgment dated 19-12-2017, of learned Sessions Judge/Special Judge (CNSA) Ghotki, whereby the appellant has been convicted and sentenced to undergo R.I for period of four years and six months and to pay fine of Rs.20,000/-, and in case of default in payment of fine, to undergo S.I for period of five months, for having committed an offence punishable under section 9 (c) of the C.N.S, Act 1997 for being in possession of 1200 grams of charas by police party of PS Mirpur Mathelo led by ASI Pir Bux Bhutto.

2. At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined PW/1 complainant ASI Pir Bux Bhutto at (Ex.9), he produced memo of arrest and recovery, FIR and carbon copy of entries in respect of departure and arrival on single paper duly attested, PW/2 eyewitness/mashir PC Niaz Hussain at (Ex.10), he produced memo of wardhat and PW/3 I.O of the case Inspector Abdul Jabbar Mahar at (Ex. 11), he produced report of chemical examiner, thereafter, learned State counsel closed the side of prosecution vide statement at (Ex. 12).

3. The appellant in his statement recorded u/s 342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that he has been involved in this case falsely by the police at the instance of Chakar Khan Bozdar. The appellant did not examine anyone in his defence or himself on oath in disproof of the prosecution allegation.

4. On evaluation of evidence, learned trial Court convicted and sentenced the appellant by way of impugned judgment, as stated above.

5. It is contended by the appellant in person that he being innocent has been involved in this case by the police at the instance of Chakar Khan Bozdar, there is no independent witness to the incident and no much reliance could be placed upon the evidence of the police personnel being interested persons. By contending so, he sought for his acquittal.

6. Learned D.P.G for the State by supporting the impugned judgment has sought for dismissal of instant appeal.

7. We have considered the above arguments and perused the record.

8. It is stated by complainant ASI Pir Bux and PW/mashir PC Niaz Hussain that on the date of incident, they with rest of the police personnel, when were conducting patrolling through a private car, when reached at Jarwar Railway crossing, they came to know through spy information that appellant and his two companions are selling charas at Maykhana of Din Shah. On such information according to them, they with rest of the police personnel proceeded to the pointed place. If for the sake of arguments, it is believed that the complainant and his witnesses proceeded to the place of information, on information, then they were under moral and lawful obligation to have associated with them independent person to witness the possible arrest of the appellant and others. It was not done by them without any lawful justification. In that situation, the very proceeding by the complainant and his witnesses to the place of incident is appearing to be doubtful. Be that as it may, it was further stated by them that they reached at the place of incident at about 1300 hours and apprehended the appellant while his companions made their escape good, they were identified to be Deedar and Mumtaz. On arrest, on enquiry the appellant disclosed his name to be Sikiladho @ Sikandar, on search from him were secured Rs.300/- and charas, it was weighed to be 1200 grams, out of it, 200 grams charas was sealed separately for chemical examiner, while remaining charas was sealed separately. A mashirnama of arrest and recovery was prepared. The perusal whereof reveals that it was prepared at about 1300 hours. If it was prepared at 1300 hours, then where the time consumed by the complainant and his witnesses in apprehending the appellant, making enquiry from him, conducting his search and affecting the recovery of Charas etc from him gone? No explanation to it is offered by the prosecution, which has made the very preparation of such mashirnama allegedly at the place of incident to be doubtful. It was further stated by the complainant and his witnesses that the appellant with the recovery so made from him then was taken to P.S Mirpur Mathelo, there he was booked in the present case formally and further investigation was conducted by SIO/Inspector Abdul Jabbar. It was stated by SIO/Inspector Abdul Jabbar that on investigation, he recorded 161 Cr.PC statements of the PWs, visited the place of incident, prepared such mashirnama, dispatched the sample of charas to the Chemical Examiner and after usual investigation submitted challan of the case against the appellant and others before the Court of law. SIO/Inspector Abdul Jabbar has not explained the circumstance which prevented him from associating any independent person to witness the preparation of mashirnama of place of incident which appears to be significant. If for the sake of arguments, evidence of SIO/Inspector Abdul Jabbar is believed to be true even then it is not enough to improve the case of prosecution. The sample of the charas was sent to chemical examiner with the delay of two days to its recovery. PC Misri Khan, who allegedly taken the sample of charas to the Chemical Examiner has not been examined by the prosecution for no obvious reason. His examination was essential to prove the safe dispatch of the sample charas to the Chemical Examiner.

9. In case of Ikramullah and others Vs. the State (2015 SCMR-1003), it has been held by hon’ble apex Courts that;

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

10. The discussion involved a conclusion that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

11. In case of Faheem Ahmed Farooq vs.The State( 2008 SCMR-1572), it is held that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

12. In view of the facts and reasons discussed above, the impugned judgment is set-aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court, he is present in Court on bail, his bail bond is cancelled and surety is discharged.

13. The instant appeal is disposed of in above terms.

J U D G E

Nasim/P.A