IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Appeal No.D-72 of 2018

Present:

Mr. Justice Muhammad Iqbal Mahar.

Mr. Justice Amjad Ali Sahito

Appellant : Abdul Hakeem s/o Wali Muhammad, by caste

Durrani Pathan,Presently confined in C.P-I Sukkur through Mr.Mahfooz Ahmed Awan,Advocate.

State : Through Mr.Zulfiqar Ali Jatoi, Additional P.G

Date of hearing : 15.08.2018.

Date of decision : 15.08.2018.

J U D G M E N T

Amjad Ali Sahito, J.–Appellant named above was tried by learned Sessions Judge/Special Judge for CNS, Sukkur, in Special Case No.71/2016, St.Vs.Abdul Hakeem, for offence punishable under section 9(c) of Control of Narcotics Substance Act, 1997, arising out of Crime No.9/2016 registered with P.S.Tamachani, whereby, he was convicted and sentenced for an offence punishable under section 9(c) of Control of Narcotics Substance Act, 1997, to suffer imprisonment for a term of 9(nine) years and 06(six) months and to pay fine of Rs.45,000/-(Rupees Forty Five thousand only) and in case of default in payment of fine, to suffer S.I for15(fifteen)daysmore. However, the benefit of section 382-B Cr.PC was also extended to him.

2. The case of the prosecution as depicted in the FIR is that on 19.04.2016 complainant SHO Gul Hassan Soomro of police station Tamachani along with his subordinates namely ASI Muhammad Khan Chang, PC Anwar Ali, PC Abdul Rasheed and driver PC Hakim Ali left police station to vide Roznamcha Entry No.20 at 1745 hours in official vehicle for patrolling within the jurisdiction. During patrolling when they reached Dreha Bus stand, they received spy information that one person having a bluecolored plastic sack on his shoulder containing charas is going by foot via link road of village Warayo. He conveyed such information to his staff and then proceeded towards the pointed place and at about 2015 hours reached the link road leading to village Warrayo situated at the graveyard, they saw a person carrying one blue colored plastic sack on his shoulder. The complainant party apprehended him along with a sack, on opening found 10(ten) slabs of charas in it and a Kalashnikovwith a magazine which was unloaded containing 09(nine) live bullets, were recovered and cash Rs.150/- from his side pocket of the shirt as well. Since private mashirs were not available as such nominating the ASI Muhammad Khan Chang and PC Abdul Rasheed as mashirs, the name and address of apprehended person were inquired to which he disclosed as Abdul Hakeem s/o Wali Muhammad by caste Durrani Pathan, a resident of village Nao-Goth Sukkur. The recovered charas was weighed through digital scale and each slab became 1000-gams total 10,000-grams (Ten Kgs), out of which 200-grams from each slap (total 2000-grams) were segregated as samples and sealed separately for chemical analysis and the remaining charas was also sealed separately while the Kalashnikov and bullets were sealed separately. The accused failed to produce the license of the Kalashnikov. The memo of arrest and recovery was prepared with the signatures of above-said mashirs. Thereafter the accused and recovered property were brought at the police station where separate FIRs under CNS act as well as under 24 of Sindh Arms Act were registered against the accused.

3. The learned trial Court on 22.10.2016 framed a charge against the appellant at Exh.03, to which he pleaded not guilty and claimed trial.

4. At the trial, in order to establish the accusation against the appellant, the prosecution examined the following witnesses;-

(i) PW-01 I.O/Inspector Jehangir Khan at Exh.04, he produced memo of the place of the incident at Exh.4-A, Chemical report at Exh.4-B, a copy of mashirnama of arrest and recovery at Exh.4-C, FIR at Exh.4-D.

(ii).PW-02 Complainant SIP Gul Hassanat Exh.5, he produced an extract of departure entry at Exh.5-A and inquiry report of ASP Muhammad Essa Khan at Exh.5-B

(iii) PW-3 masher ASI Muhammad Khan at Exh.6

All these witnesses were cross-examined by the learned counsel for the appellant. Thereafter, the learned Special Prosecutor for the State closed the prosecution side vide statement dated 18.12.2017 at Exh.7.

5. Statement of the appellant was recorded u/s.342 Cr.PC at Exh.8, in which he denied the prosecution allegations and further stated that he is innocent and lastly prayed for justice. However, the appellant did not examine himself on oath in terms of Section 340(2) Cr.P.C nor any defense witness as well.

6. The learned trial Court after hearing the learned counsel for parties and on assessment of the evidence, convicted and sentenced the appellant, as stated above, vide judgment dated 05.06.2018, which he impugned before this Court by way of filingan instantcriminal appeal.

7. Mr.Mahfooz Ahmed Awan, Learned Counsel for the appellant inter-alia contended that the appellant is innocent and has been falsely implicated in this case at the instance of one Saido Khan and others with whom there is a murderous enmity and criminal cases are pending trial before the competent court of law; that on 19.4.2016 CIA police of district Sukkur came in Government vehicle arrested the present appellant when he was standing in the street and arrested another relative namely Ghulam Nabi s/o Abdul Salam when he was sitting in the Otaq of late Amanullah Pathan, thereafter both were handed over to SHO P.S.Tamachani who lodged three FIRs being Crime No.8, 9 of 2016 under section 9(c) CNS Act and crime No.10 of 2016 under section 24 Sindh Arms Act against the appellant as well as Ghulam Nabi; that the relativesof the appellant namely Dilawar Khan and Taj Muhammad as well as accused Ghulam Nabi moved joint application to DIGP Sukkur for conducting free, fair and impartial inquiry about the above mentioned cases and one Inspector Zulfiquar Ali Soomro was appointed as enquiry officer, who after conducting enquiry recommended all the cases to be disposed of under “B” class; that the complainant and PWs being police officials are interested and set-up witnesses; that the evidence of such interested witnesses requires independent corroboration, which are also lacking in the present case; that all the witnesses are police officials and no independent person has been cited as mashir of arrest and recovery, which is in clear violation of mandatory provision of Section 103 Cr.PC; that there are material contradictions between the evidence of PW-1 Inspector Jahangir Khan and PW-2 SIP Gul Hassan which is sufficient to disbelieve the prosecution story; that as per prosecution the sample was sent to chemical examiner on 20.04.2016 through WPC Aijaz and received on 21.4.2016 with delay of one day when the office of chemical examiner situated at Rohri can be reached safely within one hour, hence tampering with the case property during search period could not be ruled out; that WPC Aijaz Ali through whom the sample was sent to the chemical examiner has not been examined by the prosecution to show safe custody and safe transit of alleged Narcotics substance. He lastly contended that the prosecution has failed to prove its case against the appellant, thus according to him under the above-mentioned facts and circumstances, the appellant is entitled to his acquittal.

8. On the other hand, Mr.Zulfiqar Ali Jatoi, Additional Prosecutor General for the State while supporting the impugned judgment has argued that the prosecution has proved its case against the appellant who was found in possession of huge quantity of narcotic substance; that the police officials had no enmity to foist such a huge quantity of charas as well as Kalashnikov upon the appellant at his own; he thus lastly prayed for dismissal of instant appeal.

9. We have heard learned counsel for the appellant, learned Additional Prosecutor General for the State and have minutely gone through the record with their able assistance.

10. In the instant case, specific animosity and ill will have been alleged against the police officials, therefore, it was incumbent upon the prosecution to prove its case by examining independent persons of the locality but the police did not examine any person of the locality to witness the recovery proceedings. PW-1 Inspector Jahangir Khan SHO of Police Station Airporton the orders of SSP Sukkur, started investigation of this case, on 26.4.2016 he received case papers of crime No.9 of 2016 and 10 of 2016 of police station Tamachani along with case property viz.10-sealed parcels and 10-samples of charas as well as one Kalashnikov, he dispatched the samples to the Office of the Chemical Examiner Rohri and also recorded statements of the witnesses. In his cross-examination,he admitted that “I myself dispatched the samples to the chemical examiner and received 10-parcels of remaining charas and 10parcels of samples, on 26.4.2016 I kept case property at Mal-Khana of my police station Airport. He further admitted that it is correct that I have not produced Roznamcha Entry of receiving of case property either of P.S.Tamachani or P.S.Airport. It is correct that I have not produced any Roznamcha Entry of P.S.Airport showing that case property was kept by me at Mal-Khana of P.S.Airport. I did not examine WHC of Mal-Khana or police constables who took samples to chemical examiner U/s 161 Cr.P.C. It is fact that I have not produced a letter addressed to Chemical Examiner for analyzation of R.C of P.S. showing that samples were dispatched to the chemical examiner. During cross-examination on the request of learned counsel for the appellant, the property was de-sealed and found that case property of crime No.9/2016, ten parcels of remaining charas lying in sealed and ten parcels of sample charas lying resealed and a cash amount of Rs.150/- uncovered from blue Katta”. On the suggestion of learned counsel for the appellant, he stated that “I do not know whether Inspector Zulfiqar has conducted an inquiry in this case and denied the arrest of the appellant from the Otaq of Amanullah”. It is surprising to say that when remaining case property was sealed by the complainant Gul Hassanand the samples out of 200-grams returned back from the office of Chemical examiner were again re-sealed but nothing has been brought on record that who has de-sealed or re-sealed the said property. In order to corroborate the evidence of PW-1 Inspector Jahangir Khan, the prosecution has examined complainant SIP Gul Hassan Soomro, who in his evidence deposed that on 19.4.2016 he was posted as SHO P.S.Tamachani, he along with his subordinate staff namely ASI Muhammad Khan, PC Abdul Rasheed, PC Muhammad Anwer, left police station for patrolling. On information, he arrested appellant Abdul Hakeem and recovered ten Kilograms of charas alongwith Kalashnikov. 200/200 grams of charas was separated from each slab for the Chemical Examiner and remaining charas was also sealed atthe spot. After lodging FIR he started an investigation and sent the sample to the Chemical Examiner Rohri and weapon to the FSL Larkana for its report. In cross-examinationhe admitted that Inspector Zulfiqar Ali Soomro carried out an inquiry in this case on the direction of DIG Sukkur, however, he denied the suggestion that “I do not know whether Inspector recommended the case to be disposed of under “B” class”. In cross-examination, he further admitted that “I do not remember whether that sack (Katta) was sealed by me or not”.There is also a contradiction in respect of sending the samples to the office of the Chemical Examiner, according to PW-1 Jahangir Khan, he sent the samples on 26.4.2016 whereas PW-2 Gul Hassan stated that he sent the sample on very next day viz. 20.4.2016 to the office of Chemical Examiner which creates doubt in the prudent mind that which version is correct on the ground that both police officials failed to produce any documentary evidence for sending a sample to the office of Chemical Examiner. PW-3 Muhammad Khan ASI also supported the version of the complainant.

11. In this case,the Investigating Officer PW-1 Inspector Jahangir Khan claims that he received ten parcels of remaining charas and ten parcels of samples which were kept by him as a case property at Mal-Khana of P.S.Airport. The case property was shown to him by WHC Chachar on 26.4.2016. On the other hand,PW-2 Gul Hassan, SHO P.S.Tamachani in his examination in chief admitted that after took up the investigation he sent the sample to the Chemical Examiner Rohri for its report, but these witnesses have not produced any letter through which they have sent the case property to the Chemical Examiner.From the perusal of the chemical examiner’s report, it reveals that through a letter dated 20.4.2016 he has received case property on 21.4.2016 by WPC Aijaz Ali. PW-2 SHO Gul Hassan brought the accused and property at police station Tamachani but nothing has been brought on the record that how the property was sent to the police station Airport nor any entry was produced by the Investigation Officer Inspector Jahangir Khan. There is no evidence on the record to believe that the charas was handed over to WPC/Incharge of Mal-Khana of P.S.Tamachani nor any entry has been produced by the SHO/complainant Gul Hassan to prove the safe custody of recovered charas, at police station Tamachani or police station Airport which creates doubt upon the truthfulness of these witnesses. WPC Aijaz Ali through whom the samples were sent to the Chemical Examiner has not been examined by the prosecution in respect of the safe custody or safe transit of the charas and as such there is likelihood that such sample may have been tampered with/interfered before it was sent to the chemical examiner which would mean that report of the chemical examiner cannot be safely relied and the fact that it has proved positive under these circumstances of non-safe custody will not assist the prosecution case. In respect of the importance of safe custody of the Narcotics in a case under the CNS Act reliance is placed on the case of Ikramullah and others V. The State (2015 SCMR 1002) where it was 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 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”.

12. Moreover, PW-2 SHO Gul Hassan failed to produce the arrival entry of police station to believe that after the arrest of the appellant, he along with the accused and property were brought at the police station and lodged the instant FIR. From the perusal of departure Entry No.20, it is transpired that PC Nawab Ali was along with the SHO P.S.Gul Hassan Soomro for patrolling but nowhere in the FIR it has been mentioned that PC Nawab Ali was with them, even SHO Gul Hassan Soomro failed to disclose in the entry that in which vehicle they left the police station

13. Apart from above material infirmities and contradictions in the prosecution evidence rendering the prosecution case highly doubtful, there are several other infirmities and discrepancies which need not be discussed just to save the space. It needs no reiteration that single circumstances creating reasonable doubt in the prudent mind about the guilt of the accused, benefit thereof is to be extended to the accused not as a matter of grace or concession but as a matter of right.The reliance in that context is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has heldthat:

4.--- Needles 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 accused, then 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 guilt persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of TariqPervez

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. The over-all discussion involved a conclusion that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt, therefore, while extending the benefit of doubt, appeal was allowed by a short order dated 15.8.2018, and the conviction and sentence recorded by the trial Court were set aside and the appellant was acquitted of the charge and was ordered to be released from the custody forthwith if not required in any other criminal case.

-15. These are the detailed reasons for the short order dated 15.8.2018 announced by us.

JUDGE

JUDGE-