IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Appeal No. D-41 of 2020

Present:

Mr. Justice Omar Sial,

Mr. Justice Zulfiqar Ali Sangi,

Appellants Zaheer s/o Haji Qasim Lakho

Through Mr. Ahmed Bux Abro, advocate

The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Date of hearing: 22-04-2021

Date of Decision: 05-05-2021

J U D G M E N T

Zulfiqar Ali Sangi, J. Through instant criminal appeal, the appellant Zaheer s/o Haji Qasim Lakho has assailed the Judgment dated 01.12.2020, passed by the learned III-Additional Sessions Judge(MCTC)/Special Judge (C.N.S.), Larkana in Special Narcotic Case No.44/2020 (Re: State V/s Zaheer), being outcome of Crime No.11/2020 of P.S. Hatri Ghulam Shah, for the offence U/S 9(c) of Control of Narcotic Substances Act, 1997, whereby the trial court has convicted the appellant U/S 265-H (ii) Cr.P.C, for committing offence punishable under section 9(c) of C.N.S. Act, 1997, being in possession of three kilograms of charas and sentenced him to suffer R.I for four years and to pay fine of Rs.8500/-. In default of payment of fine, the accused was directed to suffer S.I for 4 months and 15 days. The benefit of section 382 (b) Cr.P.C. was extended to the appellant.

2. Brief facts of the prosecution case as per F.I.R lodged by complainant ASI Ghulam Yaseen Kalhoro on behalf of the State on 10.07.2020 at 1440 hours at P.S Hatri Ghulam Shah are that on the aforesaid date, when he along with his staff was on patrol duty, at about 1330 hours, accused Zaheer son of Haji Qasim Lakho was arrested by them as suspected and 3000 grams charas was recovered from him lying in black colour plastic shopper for which, the accused disclosed that, he used to sell the charas, therefore, he being guilty for an offence punishable under Section 9(c) Control of Narcotic Substances Act, 1997 was arrested under mashirnama of arrest and recovery attested by PC Abdul Hussain and PC Bakhat Ali being mashirs, after such recovery the FIR was lodged against the accused Zaheer son of Haji Qasim Lakho.

3. After registration of first information report, investigation was carried out and on completion of the investigation the accused was sent-up to face his trial before the competent court of law.

4. In compliance of Section 241-A Cr.P.C, the case papers were supplied to the accused. Formal charge was also framed against him, to which he pleaded not guilty and claimed to be tried.

5. The prosecution in order to prove its case, examined PC Abdul Hussain PW-1 at Ex.3, he produced mashirnama of arrest, personal search & recovery of charas, travelling railway ticket of accused, mashirnama of site inspection at Ex.3-A to 3-C; Investigating Officer SIP Sajid Hussain examined as PW-2 at Ex.4, he produced entry No.11, letter of SSP Larkana to Director Laboratory & Chemical Examiner Sindh, Karachi, letter of SHO to Incharge Chemical Examiner Karachi Sindh, Certificate of test/analysis at Ex.4-A to 4-D; Complainant ASI Ghulam Yaseen examined as PW-3 at Ex.5, he produced entry No.5, entries Nos. 8 & 9 (joint entries) at Ex.5-A and 5-B; ASI Sher Mohammad (who took the property to the laboratory for its analysis) examined as PW-4 at Ex.6, he produced road certificate at Ex.6-A. Thereafter learned State Counsel closed the side of the prosecution under his statement placed at Ex.7.

6. Trial Court recorded statement of accused under section 342 Cr.P.C, wherein he claimed his innocence. The accused neither examined himself on oath nor produced any defence evidence.

7. After assessment of evidence, learned trial court has passed the above impugned judgment and awarded sentence to the present appellant/accused as mentioned above. Being aggrieved by and dissatisfied with the said judgment, appellant/accused above named has preferred this criminal appeal.

8. Learned counsel for the appellant has contended that the appellant is innocent and has falsely been implicated in this case; that there is no any convincing evidence against accused; that the prosecution has failed to establish its case against accused; that there is delay of four days in sending recovered charas to chemical laboratory, hence question of safe custody is arises, no incharge of malkhana was produced before the trial court; that chemical report shows one sealed cloth parcel containing black plastic shopper contains 03 dark brown patties; complainant Ghulam Yaseen has deposed that he himself sealed the recovered charas in a white cloth; that photo copy of R/C shows that charas was in plastic theli of black color; in mashirnama of arrest and body search, date is written with one pen and time is written with other pen; that signature of complainant on mashirnama and F.I.R is different; that appellant was already arrested on 06.07.2020 and one Daim Shah filed Appln. U/S 491-A Cr.P.C on 08.07.2020, raid conducted but the appellant was not recovered. Lastly, he prayed that the appellant may be acquitted by extending him the benefit of the doubt.

9. Learned Additional Prosecutor General has submitted that prosecution has proved the case; recovery of 3 K.G charas was effected from the accused and he was arrested red handed; entire property was sent for analysis; ASI Sher Mohammad (who took the property to the laboratory for its analysis) was also examined; chemical examiner's report is in positive; no question was put from the witnesses on safe custody. He further submits that there are minor contradictions in the evidence of P.Ws. In support of his contentions, he has relied upon the case law reported as Shazia Bibi V. The State (2020 SCMR 460). He has prayed for dismissal of the criminal appeal.

10. We have heard learned counsel for the appellant and learned Additional Prosecutor General and have gone through the material available on the record with their able assistance.

11. On reassessment of entire evidence produced by the prosecution we are of the view that the prosecution has not proved the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

12. We have noticed major contradictions in the evidence of prosecution witness which cut the roots of the prosecution case and make it doubtful, the contradictions in the evidence of prosecution witnesses are as under:-

(a). P.C Abdul Hussain has stated in his cross-examination that they patrolled to Sher Khan Jatoi, Banhu Khan Jatoi and then they took the road of bypass, while complainant A.S.I. Ghulam Yaseen has deposed in his cross-examination that after leaving Police Station they patrolled through village Sher Khan, Banani Curve and then they arrived at the curve of Purano Abad.

(b). P.C Abdul Hussain has deposed in his cross-examination that accused did not try to run upon seeing them, while complainant A.S.I. Ghulam Yaseen has deposed in his cross-examination that accused moved for 10/12 paces in order to slip away after seeing them.

(c). P.C Abdul Hussain has deposed in his cross-examination that he had apprehended the accused, while complainant A.S.I. Ghulam Yaseen has deposed in his cross-examination that he apprehended the accused and conducted his body search.

(d). P.C Abdul Hussain has deposed in his cross-examination that he had taken digital balance from vehicle and handed over it to A.S.I. Ghulam Yaseen, while complainant A.S.I. Ghulam Yaseen has deposed in his cross-examination that weighing machine was lying in the rare part of police mobile which he himself took out for purpose of weighing the recovered charas.

(e). P.C Abdul Hussain has deposed in his cross-examination that the description available on this parcel was written down by A.S.I. Ghulam Yaseen, crime number was written down by A.S.I. Ghulam Yaseen on bonnet of vehicle, while complainant A.S.I. Ghulam Yaseen has deposed in his cross-examination that he obtained the signatures on parcel of sealed property and he put crime number on it after registration the F.I.R. He himself wrote down details on the parcel of sealed case property with black colored marker-pen. He himself wrote down crime number on this parcel at Police Station.

(f). P.C Abdul Hussain has deposed in his cross-examination that they consumed about 40/50 minutes in arresting accused, effective recovery and preparing mashirnama, while complainant A.S.I. Ghulam Yaseen has deposed in his cross-examination that they consumed about 20 minutes at the place of arrest and recovery.

(g). P.C Abdul Hussain has deposed in his cross-examination that it took about one hour in writing down the F.I.R, while complainant A.S.I. Ghulam Yaseen has deposed in his cross-examination that he himself reduced the F.I.R into writing and it took about half hour.

(h). P.C Abdul Hussain has deposed in his cross-examination that his statement was reduced into writing by S.I.P, while investigation officer Sajid Hussain Sangi deposed in his cross-examination that statements of PWs were reduced in to writing by WHC.

(i). P.C Abdul Hussain has deposed in his cross-examination that there is road in the east of place of arrest, while S.I.P Sajid Hussain Sangi has deposed in his examination-in-chief that in its east there is hotel of Rustam and Sabeel of water.

(j). P.C Abdul Hussain has deposed in his cross-examination that in its south there is hotel of Rustam, in its north there is road, while S.I.P Sajid Hussain Sangi has deposed that in its south there is road which leads to District Khairpur.

(k). S.I.P Sajid Hussain Sangi has deposed in his cross-examination that he had asked people available at Maandi and hotel to become mashir but they refused, while complainant A.S.I. Ghulam Yaseen has deposed in his cross-examination that no public person was available at the time of site inspection.

(l). Complainant Ghulam Yaseen has deposed in his cross-examination that he did not remember what was written on colorful wrapper. It was same colour wrapper on all three slabs of charas, while A.S.I. Sher Muhammad has deposed in his cross-examination that two slabs of charas wrapped in Doncafe wrappers of same colour and one slab of charas was wrapped in whiskas top wrapper of other colour.

13. From the above-noted contradictions it established that the complainant and mashir were not the true eye-witnesses of the arrest of accused and recovery of charas from the possession of appellant. The conduct of the investigation officer in the circumstances also seems to be doubtful. Taking notice of the contradictions in the evidence of complainant, mashir and the investigation officer, we are clear in our mind that the prosecution failed to prove its case against the appellant beyond shadow of reasonable doubt and the recovery has not been satisfactorily proved. No implicit reliance can be placed in view of aforesaid contradictions on the evidence of prosecution witnesses. Reliance is placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein Hon'ble Supreme Court of Pakistan has held as under:-

"It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

14. It is also admitted position that the incharge of malkhana where the property was kept in safe custody was not examined during the investigation nor was he produced before the trial court for recording his evidence to prove the safe custody of the recovered narcotics. Non examination of incharge of the malkhana who’s possession the property was is fatal to the case prosecution and make it doubtful. Reliance can be place on the case of Mst. Sakina Ramzan V. The State (2021 SCMR 451).

15. As per the case of prosecution the recovery was effected on 10-07-2020 and was received by the chemical examiner on 15-07-2020, as per report available at page 27 of the paper book, the same was received with the delay of five days and the same delay has not been explained by the prosecution which too make the entire case of prosecution as doubtful coupled with the fact that the incharge of the malkhana was not examined by the prosecution. Reliance is placed on the case of Nazar Muhammad alias Nazroo V. The State (2018 YLR 1992), wherein this court has held as under:-.

The delay of two days in sending samples of chars to the chemical examiner cannot ignored since its safe custody at Malkhana was questioned which the prosecution had not answered by adducing the reliable evidence in order to prove the case against the appellant and the learned trial Court while passing the verdict against the appellant has ignored all the material points of the case.

16. In the cases pertaining to offence of narcotics, which offences are against the society the Courts are required to award adequate punishment instead of showing sympathy, however, the settled principles by the Apex Courts in respect of the giving benefit of the doubt, and that the prosecution is duty bound to prove the case against the accused beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence can also not to be ignored. It is a well-established principle of administration of justice in criminal cases that finding of guilt against an accused person cannot be based merely on the high probabilities. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case is decided merely on high probabilities regarding the existence or nonexistence of a fact to prove the guilt of a person, the golden rule of giving "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Constitutional Courts, will be reduced to a naught. It is also a well settled principal of law that the prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession. The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence, and is deep rooted in our jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): “Avert punishments [hudood] when there are doubts”; and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment”. Reliance is place on the recent (unreported) Judgment dated: 07-12-2020 passed by the Honourable Supreme Court in case of Naveed Asghar and two others V. The State.

17. Thus based on the particular fact and circumstances of the present case and keeping in view the golden rule of giving benefit of doubt to an accused person for safe administration of criminal justice, we are firmly of the opinion that all the evidence produced by the prosecution discussed above is completely unreliable and utterly deficient to prove the charge against the appellant beyond reasonable doubt. The appeal is allowed the judgment dated: 01-12-2020, passed by the III-Additional Session Judge (MCTC)/Special Judge for CNS, Larkana in Special Case No. 44 of 2020, arising out of FIR No. 11/2020, Police Station Hatri Ghulam Shah District Larkana is set-aside and the appellant is acquitted from the charges. He shall be released forthwith, if his custody is not required in some other custody case.

18. The appeal is disposed of in the above terms.

J U D G E