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
J
U D G E
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Nasim/P.A