HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.114 of 2020

Present: Mr. Justice Abdul Maalik Gaddi

Justice Mrs. Rashida Asad

Appellant : Muhammad Kamran son of Abdul Razzak

Qureshi, through Mr. Tanveer-ul-Islam, Advocate.

Respondent : The State through Mr. Muntazir Mehdi

Deputy Prosecutor General, Sindh.

Date of hearing : 06.04.2020

Date of Judgment : 06.04.2020

J U D G M E N T

Abdul Maalik Gaddi, J.– This appeal is directed against the Judgment dated 01.02.2020 passed by the Court of learned Ist Additional Sessions Judge/Model Criminal Trial Court (MCTC)/Special Court (CNS), Karachi (Central) in Special Case No.52 of 2019 [re. The State v. Muhammad Kamran], arising out of Crime No.16 of 2019, registered at police station NKIA, Karachi, under Section 6, 9 (c) of CNS Act, 1997, whereby the appellant was convicted under Section 265-H(ii), Cr.P.C. for offence under Section 6, 9 (c) of CNS Act, 1997 and sentenced to suffer R.I. for four years and five months with fine of Rs.20,000/- and in default thereof, he shall suffer S.I. for five months more. However, benefit of Section 382-B, Cr.P.C. was also extended to him.

2. Succinctly facts of the prosecution are that complainant ASI Laeeq Ahmed of police station NKIA, Karachi, has arrested accused Muhammad Kamran Qureshi on 07.01.2019 at about 1630 hours under memo from street of Ashraf Colony Sector 5/G, New Karachi, Karachi near bus stop No.5 and recovered Chars weighing on electronic scale 1100 grams. He has also seized copy of his CNIC and cash amount Rs.200/- only and lodged such FIR under Sections 6, 9 (c) CNS Act, 1997.

3. The formal Charge was framed on 20.08.2019 at Exh.2 against the appellant by the trial Court, to which he pleaded not guilty and claimed to be tried vide his plea at Exh. 2/A.

4. At trial, in order to establish accusation against appellant/accused, prosecution had examined following witnesses:-

(i) PW-1 mashir of arrest/ recovery PC Muhammad Subhan at Exh. 3, who has produced memo of arrest/ recovery at Exh. 3/A and memo of site inspection at Exh. 3/B;

(ii) PW-2/I.O/ SIP Khalid Mehmood at Exh.4, who has produced entry No.40 at Exh.4/A, letter to CRO at Exh.4/B, CRO of accused at Exh.4/C, letter to chemical lab at Exh. 4/D and chemical report at Exh.4/E;

(iii) PW-3 ASI Laique Ahmed/ complainant at Exh.5, who has produced entry No.4 at Exh.5/A, entry No.38 at Exh.5/B, FIR at Exh.5/C;

(iv) PW-4 ASI Tariq Jawed at Exh.6, who has produced entry No.26/19 at Exh.6/A.

5. Statement of accused under Section 342 Cr.P.C. were recorded at Exh.8, in which he denied the allegations of the prosecution and professed to be innocent and claimed his false implication in this case. However, he neither examined himself on oath nor produced any witness in his defense.

6. Mr. Tanveer-ul-Islam, learned Counsel for appellant contended that appellant is innocent and has been falsely implicated by the police; that the alleged recovery of chars has been foisted upon him; that the evidence so brought on record by the prosecution witnesses in this case is contradictory in nature to each other on material particulars of the case. During the course of arguments, learned Counsel for appellant has taken to us towards the evidence of prosecution witnesses and highlighted the number of contradictions in between the statements of prosecution witnesses, therefore, according to him, on the basis of contradictory evidence, conviction could not be maintained, hence, prayed for acquittal of appellant.

7. In contra, Mr. Muntazir Mehdi, learned Deputy Prosecutor General, Sindh for the State has supported the impugned judgment passed by the trial Court and contended that the appellant was arrested on spot and 1100 grams of chars was recovered from his possession in presence of mashirs, so also the mashirs have fully supported the case of prosecution; that offence committed by the appellant is serious and heinous in nature, thus, appellant is not entitled for any relief.

8. I have given my anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before me.

9. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, we have examined the ocular evidence as well as documentary evidence, alongwith impugned judgment.

10. After going through the record, we have come to the conclusion that the prosecution has failed to prove its’ case against the appellant for the reasons that whole case of the prosecution revolves around the evidence of police officials. No doubt the evidence of police officials is as good as any other citizens; however, their evidence must be scrutinized with greater degree of circumspection for the reasons that in the society with the level of moral values that whether unfortunately have a subordinate officers is seldom expected to tell the truth in deviation of the express or employed instructions of his superiors. We have perused the evidence and documents on record showing that it is a day time incident and the appellant was apprehended from the populated area i.e. Ashraf Colony, Sector 5/G, New Karachi, and the witnesses were available there, but despite this fact, no public witness has been cited in the arrest and recovery memo. No explanation in this regard has been furnished. There is also no explanation with regard to the fact that any efforts were made to pursue any person from the locality to witness the event, hence, there is a violation of Section 103, Cr.P.C. This fact, thus, renders the alleged recovery of chars extremely doubtful.

11. Apart from this, the evidence so brought on record appears to be contradictory on material particulars of the case i.e. PW-1 Muhammad Subhan in his evidence at Ex.3 deposed that after the arrest of accused, they have consumed about ten minutes in all proceedings at the spot, whereas, while contradicting this fact, complainant ASI Laeeq Ahmed in his cross examation at Ex.5 deposed that he consumed one hour. Not only this, PW-1 Muhammad Subhan at Ex.3 deposed that his 161 Cr.P.C. statement was recorded by the investigating officer at place of incident; while contradicting this fact, investigating officer of the case namely, SIP Khalid Mehmood in his evidence at Ex.4 deposed that he recorded 161 Cr.P.C. statement of the prosecution witnesses at police station. This fact also creates doubt in the prosecution story.

12. Moreover, as per memo of arrest and recovery and FIR at Ex.3/A and Ex.5/C, the alleged incident took place on 07.01.2019 and alleged recovery of chars has been shown as recovery from the appellant on 07.01.2019, but the alleged case property (chars) was received by the Director Laboratories and Chemical Examiner, Government of Sindh, Karachi, for examination on 09.01.2019, after the delay of about three days, for which no explanation has been furnished by the prosecution. Moreso, the alleged contraband/chars was retained by whom during this intervening period has also not been explained by the prosecution that after its recoveries under whose custody, it were lying. For the sake of arguments, if it is assumed that the case property was lying in the Malkhana, then no report/entry of the Malkhana has been produced to corroborate the version of prosecution. No official from Forensic Division or Malkhana has been examined in this case. Therefore, under the circumstances, no reliance could safely be placed on chemical report for conviction of the appellant on the basis of contradictory evidence. So also, the foistation of the alleged chars upon the appellant with due deliberation and consultation could not be ruled out. During the course of arguments, when we confronted all these infirmities/lapses/lacunas to learned Deputy Prosecutor General, Sindh for reply, he has no satisfactory answer with him.

13. Nothing on record that present appellant was previously convicted or remain indulged in such type of activities in past.

14. Admittedly, in this case, there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which 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, as has been held in the case of Tariq Pervez v. The State reported as 1993 SCMR 1345, wherein the Hon’ble Supreme Court has held as under:-

“The concept of benefit of doubt to an accused person are deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”

15. In view of the hereinabove facts and circumstances of the case and while respectfully relying upon the above cited case law, we have no hesitation to hold that prosecution has failed to prove its’ case against the appellant beyond any shadow of reasonable doubt and for that reasons, this appeal was allowed by us through our short dated 06.04.2020, by setting aside the impugned judgment dated 01.02.2020 passed by the trial Court and these are the detailed reasons thereof.

JUDGE

Faizan A. Rathore/PA*