IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Appeal No.D-73 of 2018

Present:

Mr. Justice Muhammad Iqbal Mahar.

Mr. Justice Amjad Ali Sahito

Appellant : Ghulam Nabi alias Iqbal s/o Abdul Salam alias

Salam Khan alias Karamat Ali 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.72/2016, St.Vs. Ghulam Nabi alias Iqbal, for offence punishable under section 9(c) of Control of Narcotics Substance Act, 1997, arising out of Crime No.8/2016 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 12(twelve) years and 06(six) months and to pay fine of Rs.60,000/-(Rupees Sixty Five thousand only) and in case of default in payment of fine, to suffer S.I for 09(Nine) months more. 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 HC Muhabat Ali, PC Manthar, PC Abdul Rasheed and driver PC Hakim Ali left police station to vide Roznamcha Entry No.10 at 1230 hours in official vehicle for patrolling within the jurisdiction. During patrolling when they reached Kando Wahan link road leading to Dolah Dadan Peer, they made Nakabundi and at about 1415 hours they noticed a person having a white coloured plastic sack on his head was coming, who on seeing the police party tried to slip away but was apprehended strategically at the distance of 40/45 paces along with said plastic sack, on opening it, found containing 20(twenty) slabs of Charas lying in it. Since no private person was available, therefore, HC Muhabbat Ali and PC Manthar Ali were chosen as mashirs and in their presence the apprehended accused was inquired so also his personal search was conducted to which he disclosed his name as Ghulam Nabi alias Iqbal s/o Abdul Salam alias Salam Khan alias Karamat Ali, by caste Durrani Pathan resident of New Goth Sukkur. On his personal search cash of Rs.200/- was recovered from the side pocket of his shirt. All the slabs of charas were weighed through digital scale and each slab became of one 1000(thousand) grams, making a total of 20,000 (Twenty thousand) grams, out of which 200 grams from each slab were segregated as samples and samples as well as remaining charas were sealed separately. The memo of arrest and recovery was prepared on the spot which was signed by the above-said mashirs. Thereafter, the accused and case property were brought at the police station where FIR under CNS Act was registered against the accused.

3. The learned trial Court on 22.10.2016 framed a charge against the appellant at Exh.02, to which he pleaded not guilty and claimed trial vide his plea at Exh.03.

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

(i) PW-01 Mashir HC Muhabbat Ali at Exh.05, he produced a memo of arrest and recovery at Exh.5-A and mashirnama of inspection of the place of the incident at Exh.5-B.

(ii).PW-02 I.O SIP Muhammad Laiqat Exh.6 who produced a letter of SSP Sukkur with regard to the investigation of the case at Exh.6-A, F.I.R. at Ex.6-B and chemical report at Exh.6-C.

(iii) PW-3 complainant SIP Gul Hassan was examined at Exh.7 who produced entry of departure at Exh.7-A.

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 at Exh.8.

5. Statement of the appellant was recorded u/s.342 Cr.P.C at Exh.9, in which he denied the prosecution allegations and further stated that he is innocent and lastly prayed for justice. He produced application, true copy of enquiry report along with true copy of submissions of report, true copy of 'Order' dated 30.7.2016 passed by the learned trial Court in Cr. Misc. application No.879/2016 at Exh.09/A to 09/E, produced photocopy of license regarding weapon No.F74281 along with letter issued by NADRA at Exh.9/F, he produced copy of F.I.R. No.52/2011 of P.S.A-Section Sukkur U/s 302, 148,149,337-H(2) PPC, F.I.R. No.136/2015 of P.S.A-Section Sukkur U/s 302, 114, 504, 148, 149 PPC F.I.R. No.70/2015 of P.S.A-Section Sukkur U/s 302, 324, 148, 149 PPC and F.I.R. No.82/2015 of P.S.A-Section Sukkur U/s 302, 337-H(2), 114, 34 PPC at Ex.09/G to 09/J. He also examined himself on oath at Exh.10. He intended to examine defense witnesses namely Dilawar Khan, Taj Muhammad, Haibat, Haider Khan, Zaheer Ahmed Kalwar and Inspector Zulfiqar Ali Soomro,however, he only examined DWs Dilawar Khan, Taj Muhammad and Inspector Zulfiqar Ali Soomro. Thereafter learned counsel for the appellant closed his side vide statement dated 14.9.2017 at Exh.14.

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 filing an instant criminal appeal.

7. Mr.Mahfooz Ahmed Awan, Learned Counsel for the appellantinter-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 sitting in the Otaq of late Amanullah Pathan along with one Abdul Hakeem when he was standing in the street, 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 Abdul Hakeem; that the relatives of 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 is 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 HC Muhabbat Ali and PW-2 SIP Muhammad Laiq so also PW-3 SIP Gul Hassan which are 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 examined by the prosecution to show safe custody and safe transmission 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. The appellant examined himself on oath at Exh.10 and exhibited application Ex.09-A to DIG Police Sukkur where his relative requested for fair and impartial inquiry, on that application, the enquiry was conducted by the Inspector Zulfiqar Ali Soomro and recorded the statement of witnesses on the basis of statement of said Inspector, recommended for disposal of case under false B-Class, he has also produced such inquiry report and thereafter SSP Sukkar filed report before the trial Court in Cr. Misc. application No.nil/2016 wherein SSP Sukkur recommended all three cases being crime Nos.8, 9 and 10 of 2016 respectively lodged at police station Tamachani under “B” class but such reports were not considered by the learned trial Court and convicted the appellant as mentioned in supra. The present appellant also examined Inspector Zulfiqar Ali Soomro as defense witness at Exh.13 in which he deposed that on 25.4.2016 he was posted as a Reader in the office of DIGP Sukkur on same day one Dilawar Khan appeared with an application addressed to DIGP Sukkur same application was forwarded to him for conducting enquiry of crimes No.8, 9 & 10 of 2016 respectively of police station Tamachani. He recorded the statement of the applicants who have moved the application so also other person and finally prepared the report furnished to DIGP Sukkur by recommending the case to be disposed of under “B” class. The DIGP was agreed with the said report and directed SSP Sukkur for appropriate compliance. He endorsed the contention of the inquiry report being Exh.9/A to the Exh.9/J by saying that they are the same.Learned SPP for the state has cross-examined him. In cross-examination, he admitted that the recovered Kalashinkov having a valid permit in the name of Amanullah and denied the suggestion that due to influence and collusion with the relatives of the accused he has given the said report.

11. In Order to substantiate its case, the prosecution examined
PW-1 HC Muhabbat Ali at Exh.05, he has supported the contentions of mashirnama of arrest and recovery but in cross-examination, he admitted that “According to WHC Aijaz, the samples of the Katta were returned and sealed samples in same Katta of remaining charas and I have received a charge of WHC of the police station from HC Aijaz. The case property of the Katta lying sealed present in the Court also contains the sample of charas”. On the request of learned SSP, the white “Katta” was desealed in open Court and found 20-parcels of remaining charas and 20-samples returned by chemical examiner recovered from “Katta”. It is surprising to say that when remaining case property was sealed by the complainant Gul Hassan and out of which 200/200 grams were taken as a sample for chemical analyzer from each slab. After conducting the chemical examination, the remaining samples were returned to the police station Tamachani but when the Katta was de-sealed in open Court found that 20-samples returned from the office of chemical examiner lying in the same Katta, but nothing has been brought on record that who desealed or resealed the said property in the the said Katta. The complainant failed to produce any entry that as and when said samples were returned back at the police station and who had sealed the same in the said sack/katta.

12. PW-2 SIP Muhammad Laiq at Exh.6 deposed that he was posted at police station Airport as SIP on 26.4.2016, he received investigation of crime No.8 of 2016 U/s 9-C CNS Act of P.S.Tamachani from SHO Jahangir Mahar. He checked the remaining charas and the samples were already sent to the chemical examiner. After recording the statements of PWs so also the receiptof the report of chemical examiner submitted the case papers to SHO P.S.Tamachani for submission of challan, however, he admitted, he did not receive unconsumed samples of charas during the investigation. In cross-examination, he has admitted that he has not examined WHC of P.S.Tamachni with regard to checking of the case property at Mal-Khana, but he failed to produce any entry regarding checking of the case property viz.charas lying in the Mal-khana. Finally, the prosecution examined PW-3 complainant SIP Gul Hassan who has supported the contentions of mashirnama of arrest and recovery so also F.I.R. lodged by him at police station Tamachani. In cross-examination, he admitted that Inspector Zulfiqar Ali Soomro Reader to DIG conducted the inquiry but he has denied the suggestion that this case was disposed of under “B” class. In further cross-examination, he admitted that “the samples were sent by me to the chemical examiner, the date I do not remember through WPC Khadim Hussain. He also admitted that “I do not know whether HC Aijaz sealed remaining parcels of charas and samples of charas in same Katta in my presence”. From the perusal of the chemical examiner report Exh.6-C reveals that the samples were received at the office of chemical examiner through WPC Aijaz Ali but the complainant claims that he has sent the samples through WPC Khadim Hussain on 20.4.2016 and same was received on 21.4.2016 whereas the office of chemical examiner is situated at Rohri can be safely covered through private vehicle within one hour. There is no evidence on the record to believe that the charas was handed over either WPC Khadim Hussain or PWC Aijaz as the complainant failed to produce any letter through whom the samples were sent to the office of chemical examiner, nor produce any entry to believe that who has left the police station for the office of the Chemical examiner which creates doubt upon the truthfulness of the witness/complainant Gul Hassan. WPC Aijaz Ali through whom the samples were sent to the chemical examiner has not been examined by the prosecution in respect of safe custody or safe transit of the charas as such there is likelihood that such samples may have been tamperedwith/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”.

13. 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 brought at the police station and lodged the instant FIR. In this case, the appellant has examined himself on oath so also his defense witnesses including SIP Zulfiqar Ali Soomro who conducted the investigation and supported the plea of the appellant regarding his false involvement in this case. By keeping the evidence of prosecution witnesses and defense version of the appellant in juxtaposition it reveals that the appellant has been falsely implicated in this case, such plea is supported through the evidence collected by the Inspector Zulfiqar Ali Soomro who has recorded the statements of local peoples. Furthermore the evidence of the prosecution witnesses is not reliable being conflicting to each other, on the contrary, the evidence of defense version produced by the appellant is supporting to each other.

14. 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 a single circumstance 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).

15. 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.

-16. These are the detailed reasons for the short order dated 15.8.2018 announced by us.

JUDGE

JUDGE-