IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Jail Appeal No. D-85 of 2019

Present:

Mr. Justice ShamsuddinAbbasi,

Mr. Justice Zulfiqar Ali Sangi,

Appellant Ahsan s/o Muhammad Usman Marfani,

Through Mr. Muhammad Bux Odho, advocate

The State: Through Mr. Aitbar Ali Bullo,

Deputy Prosecutor General.

Date of hearing: 17-03-2021.

Date of Decision: 27-04-2021.

J U D G M E N T

Zulfiqar Ali Sangi, J. Through instant criminal jail appeal, the appellant Ahsan Marfani has assailed the Judgment dated 23.11.2019, passed by the learned Sessions Judge/Special Judge (CNSA & MCTC-II), Jacobabad, in special narcotics case No. 63 of 2019, re: State V/S Ahsan Marfani, being outcome of Crime No.197/2019 of P.S. Saddar Jacobabad, U/S 9(c), C.N.S Act, 1997, whereby the trial court has convicted the appellant U/S 265-H(ii) Cr.P.C for committing the offence U/S 9(c) of C.N.S. Act, 1997 and sentenced to suffer R.I for 12 years & 6 months and to pay a fine of Rs.60,000/- and default in payment of fine, he shall further undergo S.I for 09 months. The benefit of Section 382-B Cr.P.C was also extended to the appellant.

2. Brief facts of the prosecution case as per F.I.R lodged by complainant A.S.I. Azizullah Katto on 04.10.2019 at 1545 hours are that on the same day at 1430 hours, he along with subordinate staff arrested accused Ahsan Marfani from Umrani Laro (curve), Quetta Road Jacobabad and recovered 20 K.G charas in the shape of 20 packets lying in a carton. The packets were opened and found 02 slabs of charas were lying in each packet. The charas was weighed and each slab became 500 grams. They separated 10 K.G charas, sealed the same separately in a bachka and remaining 10 K.G charas was also sealed in said carton. Such memo of arrest/recovery was prepared on the spot in presence of mashirs. Thereafter, the arrested accused & recovered property were brought at P.S, where the complainant lodged the above F.I.R.

3. After completing all the legal formalities, Investigation Officer submitted the challan of this case before the court. Charge was framed against the appellant/accused to which hepleaded not guilty and claimed to be tried.

4. The prosecution in order to prove its case, examined complainant A.S.I. Azizullah at Ex.5. He produced memo of arrest/recovery at Ex.5/A, F.I.R at Ex.5/B, attested copies of D.D entries (one sheet) at Ex.5/C, P.W-2 P.C Muhammad Murad (mashir) was examined at Ex.6. He produced memo of inspection of place of recovery at Ex.6/A. P.W-3 P.C Saeed Ahmed was examined at Ex.7. He produced carbon copy of R.C at Ex.7/A, attested copies of D.D entries (one sheet) at Ex.7/B; P.W-4, I/O Inspector Shabbir Ahmed was examined at Ex.8, he produced attested copies of D.D entries (one sheet) at Ex.8/A, hulia form of accused at Ex.8/B and report of Chemical Examiner at Ex.8/C. Thereafter, learned DPP for State closed the side of prosecution case vide his statement Ex.09.

5. The trial court recorded statement of accused under section 342 Cr.P.C, wherein he denied the prosecution allegations, claimed his false implication by stating that he has been falsely involved by police at the instance of Aijaz Khan Jakhrani, due to enmity between Jakhrani and Marfani communities and prayed for justice. However, the appellant/accused has neither examined himself on oath U/S 340(2) Cr.P.C, nor produced any witness in his defence.

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

7. Learned counsel for the appellant has contended that the appellantis innocent and has falsely been implicated in this case by the police at the instance of Aijaz Khan Jakhrani, as there was murderous dispute between Jakhrani and Marfani communities; that police arrested the appellant from his house and brought at Police Station , where the police forced him to sale his land in lowest rate otherwise he will be involved in so many heinous offences; that police has foisted false case of huge quantity of narcotic on the instigation of one Aslam Abro; thatall the P.Ws are police officials and no independent person was cited as witness; that there are material contradictions in the evidence of official P.Ws on the point of availability of the charas, as P.W deposed in examination-in-chief that charas was available in box, checking of number of vehicles, the distance of firstly seeing the accused and availability of bachka in which they sealed the recovered charas was not mentioned in mashirnama; that the prosecution has not proved the case against the appellant beyond a reasonable doubt. Lastly, he prayed that the appeal of the appellant may be allowed and he may be acquitted by extending him the benefit of the doubt.

8. Learned Deputy Prosecutor General has submitted that the accused was found in possession of 20 K.G charas and out of which 10 K.G charas was kept in plastic kata and sent to Chemical Analyzer through P.C Saeed Ahmed, who has also been examined; the report of Chemical Examiner has proved the guilt of the accused beyond doubt, therefore the prosecution has discharged its onus of proving that the substances recovered from the accused was charas and the accused has not produced any evidence in rebuttal to the prosecution evidence; the prosecution has established its case by producing ocular evidence of the complainant and eye witness P.C Muhammad Murad; that police employees are the competent witnesses like any other independent witness and their testimony could not be discarded merely on the ground that they are police officials; besides nothing has been brought on the record by the defence against the official P.Ws and so also against the I.O to show any animosity or false implication; that the contradictions pointed out by defence counsel are minor in nature and do not go to the root of the case. In support of his contentions, learned D.P.G. has placed his reliance on the cases of Habib Khan versus The State(2017 P.Cr.L.J Note 259), Ghulam Shabbir Shar versus The State(2018 P.Cr.L.J 829), Muhammad Sarferaz versus The State(2017 SCMR 1874) and Mushtaq Ahmed versus The State (2020 SCMR 474). In the end he has submitted that accused is involved in heinous offence, therefore, his appeal may be dismissed.

9. We have heard learned counsel for the parties and have gone through the material available on the record and the case law including that cited at the bar with their able assistance.

10. On our reassessment of entire evidence produced by the prosecution we are of the view that the prosecution has failed to prove the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

11. The complainant and the witness/mashir gave their contradictory evidence on each aspect of the case including sealing of the alleged recovered charas, patrolling in the area before the recovery, inspection of the vehicles before the recovery, description of the recovered charas and on the safe custody of the recovered charas, which make the entire case of prosecution as doubtful.

12. The complainant ASI Azzizullahdeposed in his examination-in-chief that they apprehended the appellant at the spot and he in his cross-examination stated that he had not disclosed in examination-in-chief that the accused on seeing police party tried to escape, whereas the mashir PC Muhammad Murad deposed during his examination-in-chief that the accused on seeing the police party tried to slip away, during the cross-examination he again stated that the accused has tried to escape but we apprehended him. The complainant during his cross-examination stated that they stayed for about 40/45 minutes at Bughia Bridge and then came at Jilani Chowk and stayed for about 40/45 minutes, then came at Umrani Laro(curve). The witness/mashir Muhammad Murad stated during his cross-examination that they spent 40/50 minutes on each place. The complainant stated in his cross-examination that at Bughia Bridge they checked 8 to 10 wagons and 04 to 05 motorcycles whereas at Jilani Chowk they checked 2/3 wagons and 6/7 motorcycles. The witness/mashir Muhammad Murad in his cross-examination stated that they checked 8/10 vehicles only at each place.

13. That in the end of F.I.R, the complainant has stated that he handed over the police papers to Sub Inspector Shabbir Ahmed, while Sub Inspector Shabbir Ahmed has stated in his examination-in-chief that he received the case papers from A.S.I. Sikandar Ali not from A.S.I. Azizullah Katto.

14. The description available on the charas were not mentioned in the mashirnama of arrest and recovery to show and to prove that the charas produced before the chemical Analyzer and the court at the time of evidence was same and was recovered from the accused. The complainant admitted this fact during his cross-examination when the property was de-sealed before the court, complainant stated that it is fact that the slab of charas present in court having mono gram and such monogram is not mentioned in mashirnama. It is fact that charas is available in cartoon.

15. The above-noted contradictions clearly indicate that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of arrest of accused and recovery of charas from the possession of appellant had occurred. Taking notice of the contradictions in the evidence of complainant and mashir, 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. Both the witnesses contradicted each other on material aspects of the case. 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."

16. After the contradictions in the evidence of witness of the prosecution as has been discussed above, we have noted that WHC of police station was not examined during the investigation nor was examined during the trial to prove the safe custody of the charas for six days. Complainant deposed that he handed over the chars to WHC for keeping it in malkhana and the PC Saeed Ahmed who deposited the property at the office of chemical examiner also deposed that investigation officer handed over the property to him while taking from WHC who (WHC) took the property from the malkhana. Non examination of said WHC who’s possession the property was for six days is fatal to the case prosecution and make it doubtful.Reliance can be place on the case of Mst. SakinaRamzan V. The State (2021 SCMR 451).

17. The alleged recovery was effected on 04-10-2019 and was sent to the chemical examiner on 10-10-2019 with the delay of six days and the same delay has not been explained by the prosecution which too make the case doubtful coupled with the fact the WHC (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.

18. The case of prosecution was that the property was sealed in the plastic bachkas and was sent for chemical examination, however, in the report of Chemical Examiner it is mentioned that one sealed white cloth parcel was received, which also creates doubt about the property as to whether the property received at the office of chemical examiner was same, which was allegedly recovered from the appellant.

19. After the reassessment of material available in the file we found that in the present case there are also numbers 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 (1995 SCMR 1345), wherein the Hon'ble Supreme Court has held as under:-

"The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. It there is a circumstance which creates reasonable doubtin 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".

20. Thus based on the above discussion and by relying on the above precedents of the Apex Courts, we are of the view that the prosecution has failed to prove the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence. Therefore, we allow the instant appeal, set-aside the impugned judgment dated 23-11-2019, passed by the learned Session Judge/ Special Judge (CNSA & MCTC-II) Jacobabad in Special Narcotics case No. 63 of 2019 arising out of FIR No. 197 of 2019 P.S Saddar Jacobabad for offence under section 9 (c) CNS Act, 1997, and acquit the appellant Ahsan s/o Muhammad Usman by caste Marfanifrom the charges by extending him the benefit of the doubt.

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

JUDGE