Criminal Jail Appeal No.279 of 2018
Present: Mr. Justice Naimatullah Phulpoto
Mr.
Justice Rasheed Ahmed Soomro
Appellant: Muhammad Ibrahim
son of Muhammad Anwar through Mr. Habib-ur-Rehman Jiskani, Advocate
Respondent: The State through Mr.
Muhammad Iqbal Awan, Deputy
Prosecutor General Sindh.
Date of
Hearing : 28.09.2018
J U D G M E N T
NAIMATULLAH PHULPOTO, J.- Muhammad
Ibrahim, appellant, was tried by learned
Additional District and Sessions Judge-VIII, Karachi West in Sessions Case
No.2758 of 2014, for offence under section 9(c) of the Control of Narcotics
Substances Act, 1997. After full-dressed trial, vide judgment dated 06.06.2016,
appellant was convicted under section 9(c) of the Control of Narcotic
Substances Act, 1997 and sentenced to suffer 8 years’ S.I. and to pay fine of
Rs.20,000/-, in case of default in payment of fine, he was ordered to suffer
S.I for two months more. Appellant was extended
benefit of Section 382-B Cr.PC.
2.
Brief facts of the prosecution case as disclosed in
the F.I.R. are that on 12.10.2014, ASI Muhammad Dilawar
of P.S. CID left his office along with his subordinate staff for patrolling duty.
It is alleged that during patrolling, ASI Dilawar
received spy information that two persons belonging to Lyari
Gang War were present at Wazir Mansion, Railway Crossing.
The police party proceeded to the pointed place and found two persons standing
at Wazir Mansion, Railway Crossing. Both the accused
were caught hold by the police. On inquiry, one accused disclosed his name as Dilawar and another as Ibrahim. ASI conducted personal
search of accused Ibrahim and charas weighing 1200
grams and one hand grenade were recovered from his possession whereas from
possession of accused Dilawar one hand grenade and charas weighing 1100 grams were recovered. Mashirnama of arrest and recovery was prepared in presence
of mashirs. Charas was
sealed at the spot. Both the accused and case property were brought to the
police station where two separate FIRs were registered against the accused vide
Crime Nos.384 and 386 of 2014 for offences under sections 4/5 of the Explosive
Substances Act, 1908 and FIRs Nos.383 and 385 of2014 for offence under sections
6/9(c) of the Control of Narcotics Substances Act, 1997. After usual investigation, challan
was submitted against the accused under section 9(c) of the Control of
Narcotics Substances Act, 1997 before learned Judge, CNS-II, Karachi.
Learned trial court on the basis of medical report declared accused Muhammad Ibrahim
as juvenile offender and case proceeded against him under the relevant
provisions of law.
3.
Learned trial court framed charge against accused Muhammad
Ibrahim at Ex.2. Accused pleaded not guilty and claimed to be tried.
4.
At trial, prosecution examined 3 prosecution
witnesses, PW-1 ASI Muhammad Dilawar, PW-2 HC
Muhammad Hashim and PW-3 SIP Ali Haider.
Thereafter, prosecution side was closed at Ex.14.
5.
Statement of accused was recorded under section 342,
Cr.PC at Ex.15. Accused claimed false implication in
this case and denied the prosecution allegations. Accused raised plea that he
was picked up by Rangers from outside his house, later on his custody was handed
over to CID police and he has been involved in this case falsely. Accused
declined to examine himself on oath in disproof of prosecution allegations, no evidence was led by him in defence.
6.
Learned trial court, after hearing
the learned counsel for the parties and assessment of evidence, vide judgment
dated 06th June 2016 convicted and sentenced the appellant to suffer
8 years’ S.I. on account of being juvenile, fine of Rs.20,000/- was imposed upon him. In case of non-payment of fine,
he was ordered to suffer S.I. for two months more.
7.
Appellant being aggrieved and dis-satisfied with the
judgment dated 06.06.2016, has filed this appeal against his conviction and
sentence recorded by the trial court.
8.
The
facts of the case as well as evidence produced before the trial Court find an
elaborate mention in the judgment dated 06.06.2016 passed by the trial Court
and, therefore, the same may not be reproduced here so as to avoid duplication
and unnecessary repetition.
9.
Learned counsel for the appellant argued that according
to the case of prosecution charas was recovered from
the possession of accused on 12.10.2014 but it was sent to the chemical
examiner for analysis with the delay of four days. It is also argued that safe
custody of charas at police station and safe transit to the chemical examiner have not been established
at trial. Lastly, it is argued that accused was picked by the law enforcement
agency, later on his custody was handed over to the police and charas was foisted upon him but defence
theory was not considered by the trial court. In support of his contentions, he
relied upon the cases of IKRAMULLAH & Others Vs. The STATE (2015 SCMR 1002)
and MUHAMMAD MANSHA vs. The STATE (2018 SCMR 772).
10.
Mr. Muhammad Iqbal Awan, learned Deputy Prosecutor General Sindh, argued that
1200 grams charas was recovered from the possession
of the accused, report of the chemical examiner was positive. Learned D.P.G.
further argued that police officials had no enmity to foist charas
upon the appellant and prayed for dismissal of the appeal.
11.
We have carefully heard the learned counsel for the
parties and scanned the entire evidence.
12.
ASI Muhammad Dilawar PW-1 in his evidence has given the entire episode
of the incident. In cross-examination, replied that he had not mentioned the
number of the pieces of the charas recovered from the
accused. He has also admitted that he did not wait for arrest of the persons
who were coming to purchase the charas from the
accused. Report of the chemical examiner reflects that sealed parcel of the charas was brought by ASI Ali Haider
in the office of chemical examiner but he has not been examined by the
prosecution. Safe custody of the charas at police
station and safe transit are not established by cogent and confidence inspiring
evidence. It was the case of spy information, we are
unable to understand as to why ASI Muhammad Dilawar
had failed to associate with him independent persons of the locality as mashirs of recovery proceedings. No doubt, police officials
are as good witnesses as other persons but in this case specific plea has been
raised by the appellant during trial that he was picked up by Rangers outside
his house and his custody was handed over to the police. In these circumstances
we are unable to rely upon the evidence of police officials without independent
corroboration which is lacking in this case. Prosecution has failed to
establish safe custody of charas at police station
and safe transit to the chemical examiner. Incharge
of Malkhana of police station has also not been
examined. Prosecution has also failed to examine ASI Ali Haider
who had dispatched the case property/charas to the
chemical examiner. Entries of Malkhana, safe custody
of charas in the Malkhana
have also not been produced. In such circumstances, rightly reliance has been
placed on the case of IKRAMULLAH and OTHERS and
MUHAMMAD MANSHA supra. Honourable
Apex Court in the case of IKRAMULLAH supra
has observed 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 view of the above
stated reasons, we have no hesitation to hold that there are several
circumstances/infirmities in the prosecution case as highlighted above, which
have created reasonable doubt about guilt of accused. In the case of Muhammad Mansha vs. The State
(2018 SCMR 772), the Honourable
Supreme Court has observed as follows:-
“4. Needless to mention
that while giving the benefit of doubt to an accused it is not necessary that
there should be many circumstances creating doubt. If there is a circumstance
which creates reasonable doubt in a prudent mind about the guilt of the
accused, then the accused would be entitled to the benefit of such doubt, not
as a matter of grace and concession, but as a matter of right. It is based on
the maxim, "it is better that ten guilty persons be acquitted rather than
one innocent person be convicted". Reliance in this behalf can be made
upon the cases of Tariq Pervez v. The State (1995 SCMR 1345),
Ghulam Qadir and 2 others
v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230)
and Muhammad Zaman v. The
State (2014 SCMR 749).”
14.
For
the above stated reasons, we have come to the conclusion that prosecution has
utterly failed to prove its case against the appellant, trial court failed to
appreciate the evidence according to settled principles of law. False
implication of appellant could not be ruled out in this case. While relying
upon the above cited authorities, we hold that prosecution has miserably failed
to prove its case against the appellant beyond any shadow of doubt.
Resultantly, conviction and sentence recorded by the trial court vide judgment
dated 06.06.2016 are set aside. Appellant Muhammad Ibrahim son of Muhammad
Anwar is acquitted in FIR No.385/2014, registered at P.S. CID, Karachi under
section 9(c) of the Control of Narcotics Substances Act, 1997. He shall be
released forthwith if not required in some other custody case.
15.
These are the reasons for short order dated
28.09.2018.
J U D G E
J U D G E
Gulsher/PS