HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 51 of 2018
Present: Mr. Justice Naimatullah
Phulpoto
Mr. Justice Irshad Ali Shah
Appellant: Loung son of Khamiso through Syed Masood
Shah, Advocate
Respondent: The
State through Mr. Abrar Ahmed Khichi
Additional Prosecutor General, Sindh
Date of hearing: 16.07.2019
J
U D G M E N T
IRSHAD ALI SHAH, J. The
appellant by way of instant appeal has impugned judgment dated 11.01.2018,
passed by the learned Sessions/ Special Judge Control of Narcotics Substances
Thatta, whereby he has been convicted for the offences punishable under Section
9(c) Control of Narcotic Substances Act, 1997 and sentenced to suffer Rigorous
Imprisonment for period of 04 years and to pay fine of Rs.
10,000/-. In default in payment of such fine, to suffer simple
imprisonment for two months with the benefit of Section 382(b) Cr.P.C.
2. Facts in brief necessary for disposal of
instant appeal are that on arrest from the personal search of the appellant was
allegedly secured 1090 grams of Charas by the police party of Police Station
Gharo led by SIP Ghulam Hussain, for that he was booked and challaned
accordingly.
3. At trial, appellant did not plead
guilty to the charge and prosecution to prove it, examined PW-1 HC Irshad Ahmed
Siddiqui (Ex.04). He produced departure as well as arrival entries of station
diary and the memo of arrest and recovery. PW-2 SIP Ghulam Hussain Brohi, (Ex.5).
He produced copy of the criminal case FIR and report of chemical examiner and
the prosecution closed its side.
4. The appellant in his statement recorded
under Section 342 Cr.P.C. denied the prosecution allegations by pleading innocence.
He did not examine himself on oath or anyone in his defence.
5. On evaluation of evidence, so brought
by the prosecution, the trial Court found the appellant guilty for the above
said offences and then convicted and sentenced him accordingly by way of judgment
dated 11.01.2018, which the appellant has impugned before this Court by way of
present appeal, as stated above.
6. It is contended by the learned Counsel
for the appellant that the appellant being innocent has been involved in this
case falsely by the police and the evidence which has been produced by the
prosecution being contradictory and doubtful has been believed by the learned
trial Court without any justification. Lastly, it is contended that prosecution
has failed to prove safe custody of Charas
at Malkhana
of police station and its safe transmission to the chemical examiner. By
contending so, he prayed for acquittal of the appellant.
7. Learned Additional Prosecutor General,
Sindh for the State by opposing acquittal of the appellant was fair enough to
admit that the evidence of the prosecution is inconsistent.
8. We have considered the above argument
and perused the record.
9. It has been stated by complainant SIP
Ghulam Hussain Brohi and PW mashir HC Irshad Ahmed Siddiqui that on 24.06.2016,
they with rest of the police personnel were conducting patrol within
jurisdiction of P.S Gharo, when they reached adjacent to Girl High School
Gharo, there they came to know through spy information that a person was
selling charras adjacent to old custom building. 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 spy information then they ought to
have associated with them independent person to witness the arrest and
recovery, which have not been done by them for no obvious reason. Such omission
on their part could not be overlooked. It was further stated by them that they
reached at the place of incident and found the appellant standing there, he was apprehended and on search and from him was secured
1090 grams of Charas. Mashirnama of arrest and recovery was prepared and then
he was taken to the police station Gharo there he was booked in the aforesaid
case formally.
10. Complainant has himself conducted
investigation of the present case and it was admitted by him that 161 Cr.P.C
statements of P.Ws were recorded by WPC Aqeel Ahmed
at his dictation. None of 161 Cr.P.C statement of any P.W contains a note that
it was recorded by WPC Aqeel Ahmed. In that situation
it could be concluded safely that investigation of the present case which
allegedly was conducted by complainant SIP Ghulam Hussain was casual in its
nature.
11. Perusal of the report of the chemical
examiner Ex.5/C reveals that the Charas allegedly recovered from the appellant on
24.06.2016 was dispatched to him on 27.06.2016 through PC Muhammad Juman. It was with delay of four days to its recovery. No
explanation to such delay is offered by the prosecution. Be that as it may, PC
Muhammad Juman delivered the Charas to chemical
examiner on 30.06.2016 with a delay of three days. What he had with the Charas for
about three days? Non-explanation of it, is offered by
the prosecution. PW PC Muhammad Juman has not been
examined by the prosecution. In that situation it could safely concluded that
the prosecution has not been able to prove safe custody and transmission of Charas
to the chemical examiner beyond doubt and appellant is appearing to be entitled
to such benefit.
12. In the case of Ikramullah and
others v. The State reported as (2015 SCMR
1002), the Hon’ble Supreme
Court has held as under:
“5. In
the case in hand not only the report submitted by the Chemical Examiner was
legally laconic but safe custody of the recovered substance as well as safe
transmission of the separated samples to the office of the Chemical Examiner
had also not been established by the prosecution. It is not disputed that the
investigating officer appearing before the learned trial court had failed to
even to mention the name of the police official who had taken the samples to
the office of the Chemical Examiner and admittedly no such police official had
been produced before the learned trial Court to depose about safe custody of
the samples entrusted to him for being deposited in the office of the Chemical
Examiner. In this view of the matter 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.”
13. In the case of Tariq Pervez v. The State reported as (1995 SCMR 1345),
the Hon’ble Supreme Court has held that for giving benefit of doubt to
an accused it is not necessary that there should many circumstances creating doubts. If a
simple circumstance creates reasonable doubt in a prudent mind about the guilt
of accused, then he will be entitled to such benefit not as a matter of grace
and concession but as a matter of right.
14. Above are the reasons for the short order
dated 16.07.2019, whereby instant appeal was disposed of which reads as under:
“For
the reasons to be recorded later on, criminal Appeal No.51 of 2018 is allowed.
Conviction and sentence recorded by learned Special Judge Control of Narcotic
Substance Thatta vide judgment dated 11.01.2018 are set aside. Appellant Lung
son of Khamiso is present on bail, his bail bond is cancelled surety
discharged.”
JUDGE
Karachi. JUDGE
Dated: .07.2019
Muhammad Tahir/PA*..