IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Cr. Appeal
No. D-122 of 2018.
|
Date |
Order with signature of Judge |
Appellant: Asghar Ali Shah son of Muhammad Shah by caste Syed. (Now
confined at Central Prison Sukkur).
Through Mr. Abdul Baqi Jaan Kakar advocate.
The State: Through Mr.
Abdul Rehman Kolachi,
Deputy Prosecutor General.
Date
of hearing. 14-11-2018.
Date
of decision. 14-11-2018.
J U D G M E
N T.
.-.-.-.-.-.-.-.-.-.-.-.-.
AMJAD ALI
SAHITO, J.- Appellant Asghar Ali Shah was tried by
learned Sessions Judge/Special Judge (CNS) Sukkur in Sessions Case No. 140/2017
Re. The State Vs. Asghar Ali Shah, arising out of Crime No. 18/2017, registered
at police station ANF Sukkur for offence under section 9 (c) of Control of
Narcotics Substance Act, 1997 and by judgment dated 05-10-2018, he was
convicted and sentenced to suffer rigorous imprisonment for four (04) years and
six (06) months and to pay fine of Rs. 20,000/- (twenty thousand) in default
whereof, to suffer simple imprisonment for five (05) months more. The benefit
of section 382-B Cr.P.C was also extended to the appellant. Through the instant
appeal, the appellant has assailed the said judgment.
02.
Briefly,
the facts of the prosecution case are that complainant Sub Inspector Attaullah
Khan Jadoon of PS ANF Sukkur lodged the F.I.R. on 22-11-2017 alleging therein
that on the day of report he was on duty and received information that
notorious drug dealer Asghar Ali Shah who is also wanted in Crime No. 17/2017
would deliver Narcotic to hiss customer at Bus Terminal, Sukkur. On receipt of
such information, the complainant along with Inspector Wajid Hussain, A.S.I.
Ali Sher and PC Qasim Memon left police station vide
entry No. 12 in the official vehicle under the supervision of Assistant Director Muhammad Faisal and reached the
pointed place. It was about 7-30 am, where they apprehended a person along with
blue colour shopping bag, it was opened,
which contained two packets of charas and two slabs in each packet were found.
The said charas was weighed at the spot, which became 02 kilograms. On enquiry the said person disclosed his name as
Syed Asghar Ali Shah. During his body
search cash of Rs. 410/- and his C.N.I.C. was secured from his pocket. Such mashirnama/memo
of arrest and recovery was prepared in presence of mashirs A.S.I. Ali Sher and
PC Qasim. Then accused and case property were
brought to police station, where complainant lodged the F.I.R. against the
accused on behalf of the state.
03. After completing all the
formalities, the charge was framed against the appellant, to which he pleaded
not guilty and claimed to be tried.
04. In
order to establish accusation against the appellant/accused, the prosecution
examined complainant Sub-Inspector Attaullah Khan at Ex. 7, who produced
mashirnama of arrest and recovery, entries of departure and arrival, letter
issued to chemical examiner, chemical report, criminal record of accused at Ex.
7/A to 7/D respectively, PW/2 mashir PC
Muhammad Qasim at Ex. 8. Thereafter learned SPP for the State closed the side
of prosecution vide statement at Ex.
9.
05. Statement
of the appellant was recorded to which he pleaded his innocence and denied the
prosecution allegations. However, neither accused examined himself
on oath to disprove the prosecution allegations nor led any evidence in his defence, but claimed that he is innocent and has
falsely been implicated as such prayed for justice.
06. The learned trial Court after
hearing the learned counsel for the parties and appraisal of the evidence
convicted and sentenced the appellant vide
judgment dated 05-10-2018, which is impugned by the appellant before this Court
by way of filing instant Cr. Appeal.
07. It is, inter-alia,
contended by the learned counsel for the appellant/accused that appellant/accused
is innocent and has falsely been implicated in this case; that impugned
judgment passed by learned trial Court is against the law and facts of the
case; that place of incident is thickly populated area of Sukkur City, but no
any single private person was associated as a witness or mashir of the alleged
incident; that prosecution could not utilized the chemical examiner report for
all the alleged recovered contraband material as such the chemical examiner was
not cited as witness and no such proof
is produced by prosecution regarding the safe custody and of contraband material; that prosecution
failed to examine ASI Ali sher through whom case property was sent to the
office of chemical examiner for its safe transit; that there are many
contradictions between the evidence of prosecution witnesses which create
serious doubt in the prosecution case;; that the appellant is not previously
convict for any such like case; that in the earlier case crime bearing No.
17/2017 the appellant was not found having any contraband material in his
possession, but he has only been shown as absconder by the ANF; that the
alleged recovered charas from the appellant was not de-sealed in the Court at
the time of recording evidence of
prosecution witness nor shown to accuse that this property was recovered from
you; He lastly prayed for acquittal of the appellant/accused.
08. The learned Deputy Prosecutor
General while rebutting the above contention supported the impugned judgment and argued that appellant is
nominated in the F.I.R. with specific role as two kilograms contraband material
has been recovered from his physical possession; that learned trial Court has
rightly awarded the conviction and sentence to the appellant in accordance with
law.
09. We have heard learned counsel
for the parties and have gone through the material available on record with
their able assistance.
10. It is borne out from the record
that one day before registration of the instant F.I.R. viz Crime No. 18/2017
dated 22-11-2017 the appellant became inter provincial Narcotics dealer. On
21-11-2017 the ANF police arrested one accused Muhammad Ali from whom 520 grams
heroin powder was recovered. On enquiry
he has disclosed that he has purchased the said heroin powder from the
appellant. On very next date viz. 22-11-2017 appellant was arrested by the
complainant party and booked in the instant case. The allegation against the
present appellant is that complainant S.I.P Attaullah received spy information
through his superiors that absconding accused in Crime No. 17/2017 would reach at Bus Terminal Sukkur to deliver a huge quantity of Narcotics in between 7-00 am to
8-00 am. On such information he along with his A.S.I. Ali Sher, Inspector Wajid
Hussain and PC Qasim Memon under the supervision of AD Muhammad Faisal reached
at the pointed place, where they arrested the present appellant and recovered
Narcotics in the presence of mashir
A.S.I. Ali Sher and PC Qasim Memon. Though complainant has deposed that
Inspector Wajid Hussain and AD Muhammad Faisal were accompanied with him, but he himself has become the complainant and
investigation officer. Furthermore, before the trial Court, the prosecution has
not examined Inspector Wajid Hussain and AD Muhammad Faisal and first mashir
A.S.I. Ali Sher on whose presence the appellant was arrested and recovery was made. The recovered charas was sent to the
office of Chemical Examiner through A.S.I. Ali Sher and complainant S.I.P
Attaullah admitted in his cross-examination
that " I sent the property to
the chemical examiner through A.S.I. Ali Sher on 23-11-2017 for analysis. I
also recorded statement of A.S.I. Ali
Sher after sending the property on 23-11-2017. I see statement dated 22-11-2017
u/s 161 Cr.P.C statements of A.S.I. Ali Sher and say that said statement was
recorded being witnesses of the above case, whereas his other statement
regarding delivery of case property to the chemical examiner recorded on
23-11-2017".
11. The prosecution has not examined PW A.S.I. Ali Sher through whom the recovered charas was 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 recovered substance had safely been transmitted to the office of the
Chemical Examiner without the same being tampered with or replaced while in
transit. In this context, the reliance is placed on unreported Cr. Appeal No. 523, 524 & 525 of 2017,
Criminal Appeal No.494 of 2017, Criminal Appeal No.452 of 2017, Criminal Appeal
No. 22 of 2018, Criminal Appeal No. 51 of 2017 and Criminal Petition No.94-Q of
2017, wherein the Hon’ble supreme court of Pakistan has held that;
12. We have noticed above that in Criminal Appeals No. 523 to
525 and No. 22/2018, safe and safe transmission of the alleged drug from
the spot of the recovery till its receipt by the Narcotics Testing Laboratory
are not satisfactorily established. The chain of the custody begins with the
recovery of the seized drug by the Police and includes the separation of the
representative sample(s) of the seized drug and their dispatch to the Narcotics
Testing Laboratory. This chain of custody, is pivotal,
as the entire construct of the Act and the rules rests on the Report of the
Government Analyst, which in turn rests on the process of sampling and its safe
and secure custody and transmission to the laboratory. The prosecution must establish that the chain
of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break
in the chain of custody or lapse in the control of possession of the sample,
will cast doubts on the safe custody and safe transmission of the sample(s) and
will impair and vitiate the conclusiveness and reliability of the Report of the
Government Analyst, thus, rendering it incapable of sustaining convicting. This
Court has already held in Amjad Ali v. State 2012 SCMR 577) and Ikramullah
v. State (2015 SCMR 1002) that where safe custody or safe transmission of
the alleged drug is not established, the Report of the Government Analyst
becomes doubtful and unreliable.
16 ……….. Rule 6 is, therefore, in
the public interest and safeguards the rights of the parties. Any Report
(Form-II) failing to give details of the full protocols of the test applied will be inconclusive,
unreliable, suspicious and untrustworthy and will not met the evidentiary
assumption attached to a Report of the Government Analyst under section 36(2).
Resultantly, it will hopelessly fail to the support conviction of the accused.
This Court has already emphasized the importance of protocol in Ikramullah's case supra).
12. In this case, though PW
Inspector Wajid Hussain, AD Muhammad Faisal and A.S.I. Ali Sher are said to be eyewitnesses of the alleged
incident and in their presence alleged charas was secured from the possession
of the appellant by the complainant, yet they were not examined by the
prosecution for no obvious reason, then the presumption will be drawn under
illustration (g) of Article 129 of Qanun-e-Shahadat
Order, 1984, that if they have been produced and examined in this case, then
the same would have been unfavorable to the prosecution case. Apart from above, it is very surprising for us
that at the end of the examination in
chief, complainant S.I.P Attaullah has deposed that "Accused Asghar
Shah present in the Court is same. I produce the sealed cloth bag parcel
returned back by the chemical examiner as Article A/3, it is same".
Now question is that when the property was not de-sealed in the open Court,
then how the complainant came to know that it is same property, surprisingly in
the entire case property was not de-sealed and the case has proceeded and
appellant was convicted by the learned trial Court.
13. So for the next contention of
learned counsel that place of incident was thickly populated area and the
complainant has early spy information, but no private person was joined in the
recovery proceedings. It is admitted position that place of incident was Bus
Terminal Sukkur, which remains busy for 24 hours, but no efforts were made by
the complainant to join the private person from the Bus Terminal in recovery
proceedings, which is gross violation of Section 103 Cr.PC. No doubt
application of Section 103 Cr.P.C has been excluded under Section 25 of Control
of Narcotics Substance Act, 1997, yet necessity of employing private person as mashir cannot be overlooked whenever same is
possible. In case of MUHAMMAD ASLAM
V. THE STATE (supra) The Honourable Supreme Court has observed as under:-
It is significant to note that as per prosecution's own case, this
incident had occurred in a busy area (public place) of town where a number of private persons were available, but
no efforts were made by the Investigation officer of the crime to arrange any
witness of the locality, who might have seen the appellant in any manner linked
with the ten sacks of the narcotics lying new the road in open space.
14. In view of the above discussion
and perusal of evidence of prosecution witnesses, we have found that there are
many contradictions and discrepancies in the prosecution case, which cannot be
ignored while deciding the case and no conviction could be recorded on the
basis whereof. It is settled
proposition of law that prosecution is bound to prove its case beyond
any shadow of a doubt. If any reasonable doubt arises in the prosecution
case, the benefit of the same must be
extended to the accused not as a grace or concession, but a matter of right. Likewise,
it is also the well-embedded principle of
criminal justice that there is no need of so many doubts in the prosecution, rather any reasonable doubt arising out of the
prosecution evidence pricking the judicious mind is sufficient for the acquittal of the accused. In this respect, reliance is placed upon the case of MOHAMMAD MANSHA v. The STATE (2018 SCMR
772).
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 Tarique Parvez v. The
State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The
State (2008 SCMR 1221), Mohammad Akram v, The State 2009 SCMR 230) and Mohammad
Zaman v. The State (2014 SCMR 749).”
15. For the reasons discussed
above, the instant appeal was allowed. The conviction and sentence awarded to
the appellant by the trial Court/Sessions/Special judge (CNS) Sukkur vide impugned judgment
dated 5-10-2018 were set aside.
Appellant Syed Asghar Ali Shah was acquitted of the charge leveled
against him in this case by extending the benefit
of the doubt. The appellant was in jail, he
was directed to be released forthwith if
not required in any other custody case.
The above are the
reasons of our short order dated
14-11-2018.
Judge
Judge
Nasim/P.A