Cr. Appeal No.D-03/2019

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANO

Criminal Appeal No. D-03 of 2019

Before:

Mr.Justice Omar Siyal

Mr. Justice Zulfiqar Ali Sangi

Appellants: Dost Muhammad and Mehtab Ali both by caste Thebo, Through Mr. Sarfraz Khan Jatoi, Advocate.

The State: Through Mr. Muhammad Noonari, Deputy Prosecutor General.

Date of hearing: 28-04-2021

Date of Judgment: 04-06-2021

J U D G M E N T

Zulfiqar Ali Sangi, J. This judgment will dispose of instant criminal appeal filed by the appellants/accused against their conviction and sentences awarded through judgment dated 13.12.2018 passed by learned Special Judge for Control of Narcotic Substance Act/Sessions Judge, Larkana in Special Case No.10/2015 arising out of Crime No.21/2015, registered under section 9(c) of the CNS Act, 1997.

2. Brief facts of the prosecution case are that on 03.03.2015 at 1330 hours during the course of patrolling Inspector Karim Bakhsh Bhayo of Police Station Waleed had arrested the present accused from the road leading towards Waggan near Agriculture Farm, Beat No.04, Larkana and recovered 08-Kilograms of Charas from the beneath of seat of car upon which accused Dost Muhammad was sitting including cash of Rs.3000/- from his body search and 07-Kilograms of Charas from the beneath of seat of car upon which accused Mehtab was sitting including cash of Rs.2000/- from his body search. Besides, the Corolla Car bearing Registration No.AED-715 was also seized being case property of this case, as such, instant FIR under section 9(c) of the CNS Act, 1997 was registered with Police Station Waleed.

3. After usual investigation, the challan was submitted before the trial Court by showing accused Dost Muhammad in the custody while name of accused Mehtab was placed in column No.2 of the charge sheet with a request to release him on the ground that he was unaware regarding Charas which was recovered from the car lying beneath his seat, however, vide order dated 18.03.2015, accused Mehtab was joined in the case as accused to face the trial. Formal charge was framed against them to which they pleaded not guilty and claimed to be tried.

4. The prosecution in support of its case, examined PW/1 Inspector Karim Bakhsh Bhayo, being complainant as well as investigating officer of this case as Ex.06, who produced departure entries No.12 and 14, memo of arrest and recovery, FIR, entry No.16, memo of site inspection, R.C No.36 and report of Chemical Examiner as Ex.06/A to 06/H respectively and PW-02 ASI Kazim Hussain Jagirani, being first mashir of arrest, recovery and place of incident was examined as Ex.07. Thereafter side of the prosecution was closed by the learned I/C S.P.P for the State vide his statement as Ex.08.

5. The statements of accused under section 342- Cr.PC were recorded wherein they denied the prosecution allegations and categorically stated that they were travelling in their car bearing Registration No.AED-715 and when they reached near Degree College, Larkana, complainant of this case stopped them and snatched their car, as such, they exchanged harsh words with him and refused to give their car hence he took them to Police Station Waleed and kept them in wrongful confinement and on the next day, he involved them in this case falsely. Accused Mehtab further stated that during investigation, he was found innocent and his name was kept in column No.2 of the challan and they pray for justice. However, they did not appear as their own witnesses on oath as required under section 340(2) Cr.P.C in disproof of allegations leveled against them nor produced any evidence in their defence.

6. After assessment of evidence and hearing the parties, learned trial court has passed the above impugned judgment. Being aggrieved by the said judgment, the appellants have preferred this criminal appeal.

7. Learned counsel for both the appellants has submitted that appellants are innocent and they have been falsely involved in this case by the complainant Inspector Karim Bakhsh Bhayo, who snatched the Corolla Car of accused persons from them and when they resisted, complainant took them to Police Station Waleed, where he kept them in wrongful confinement and on the next day registered false case by showing alleged recovery of Charas from the car being driven by the accused persons. He further submitted that nothing has been recovered from the possession of present appellants and the alleged Charas has been foisted upon them. He also submitted that during investigation appellant Mehtab was found innocent and his name was placed in column No.2 of the charge sheet but he was joined in the case to face the trial by the learned trial court. He further argued that complainant has failed to associate any private person from the vicinity to associate him as witness of arrest and recovery proceedings though the place of incident was populated area. He also argued that both the PWs have contradicted each other on material points regarding carrying the weapons each of them and visiting the places during patrolling. He further pointed out that WHC Hamid Nawaz who as per chemical report brought property at laboratory was not examined and the R.C not disclosed as to whom the property was handed over for depositing it before chemical analyzer. He further submitted that recovery has been shown on 3.3.2015 but the same was sent to the Chemical Examiner on 5.3.2015. He further submits that the complainant himself is the Investigation Officer of the case, who admitted that Mehtab was innocent on the basis of DWs. He finally submitted that there are so many other contradictions in the evidence of prosecution witnesses, as such, their evidence is not inspiring confidence, therefore, appellants may be acquitted by extending them the benefit of the doubt. Learned counsel relied upon the unreported Judgment dated 17.2.2021 in Cr.Jail Appeal NO.D-62/2019 of this Court in case of Asmatullah v. the State.

8. Learned Deputy Prosecutor General for the State argued that prosecution has been able to prove the charge against both the accused regarding recovery of 08-Kilograms and 07-Kilograms of Charas respectively from both the accused beyond any shadow of doubt. The report of Chemical Examiner shows that both the sent parcels contain Charas and such positive report has come on record. He also argued that minor contradictions regarding carrying the weapons and visiting the places during the course of patrolling is not that much important when the recovery of huge quantity of Charas has been proved,he furthercontended that impugned judgmentneeds no interference and same is in accordance with law. In support of his contentions he relied on the case of Abdul Ghani and others V. The State and others(2019 SCMR 608)and Mst. Sakina Ramzan v. The State (2021 SCMR 451).

9. We have heard learned counsel for the appellants and learned Deputy Prosecutor General, and have gone through the material available on the record with their able assistance.

10. After reassessment of entire evidence produced by the prosecution we are of the view that the prosecution has notproved the case against the appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

11. Before discussing the other points raised by the learned counsel for the appellants we have look into the evidence of the prosecution witnesses with the able assistance of learned counsel for the appellants and the learned prosecutor and found the contradictions in their evidence.(a) Complainant during cross- examination stated that he was armed with K.K while mashir Kazim Hussain deposed in cross-examination that SHO was armed with pistol. (b) Complainant stated in his cross examination that the memo of site inspection was not written by him and the same was written by head Munshi on his dictation, while the Mashir stated in his cross-examination that the memo of site inspection was written by SHO himself. (c) Complainant stated during his cross examination that he asked few people from the nearby villages to become witness but they refused to become the witness of the inspection of the place of incident, while, mashir stated in his cross examination that PC-Abdul Jabbar, PC- Mohammad Sharif he and SHO, went to the place of incident for inspection of the site. No other police personal came at the place of incident except the police officials stated by him. (d) Complainant stated in cross examination that a private Alto Car of golden colour was in his personal use, while the mashir stated in his cross-examination that the car of SHO was having bosky colour.

12. 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 appellants had occurred as alleged by the prosecution. 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 appellants 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 coupled with the fact that the investigation officer found the appellant Mehtab as innocent and place his name in colum No 2 of the challan during the investigation. 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."

13. As per the case of prosecution the property was sent to the Chemical Analyzer through WHC Hamid Ali and the Prosecution not examined the said important witness WHC Hamid Ali who brought the property at laboratory which cut the chain of evidence to prove the case against the appellants. The prosecution not proved the safe transmission of the property to the chemical examiner which create serious doubt in its case. In this regards Honourable Supreme Court in case of Mst. Razia Sultana V. The State and another (2019 SCMR 1300),has held as under:-

2. At the very outset, we have noticed that the sample of the narcotic drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to prove safe transmission of the drug from the Police to the chemical examiner. The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability making it unsafe to support conviction. Reliance is placed on State v. Imam Bakhsh 2018 SCMR 2039).

3. For the above reasons the prosecution has failed to establish the charge against the appellant beyond reasonable doubt, hence the conviction and sentence of the appellant is set aside and this appeal is allowed, setting the appellant at liberty unless required in any other case.

In another case of Zahir Shah alias Shat V. The State throughAdvocateGeneral, Khyber Pakhtunkhwa (2019 SCMR 2004),Honourable SupremeCourt has held as under:-

2. We have reappraised the evidence with the able assistance of learned counsel for the parties and have noticed at the very outset that the Police constable, bearing No.FC-688, who delivered the sealed parcel to the Forensic Science Laboratory, Peshawar on 27.2.2013 was not produced by the prosecution. This fact has been conceded by the learned law officer appearing on behalf of the respondents. This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. Reliance is placed on State v. Imam Bakhsh (2018 SCMR 2039).

14. The alleged recovery was effected form the appellants on 03-03-2015 and was sent to the chemical examiner on 05-03-2015 with the delay 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.

15. After the reassessment of material available in the file we found that in the present case there are also 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 (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. If there is a circumstance which creates reasonable doubtin a prudent mind about the guilt of the accused, thenthe accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".

16. Thus based on the particular facts and the circumstances of the present case 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 appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence. Therefore, we allow the instant appeal, set-aside the impugned judgment dated 13-12-2018, passed by the learned Session Judge/ Special Judge (CNSA) Larkanain Special Narcotics case No. 10 of 2015 arising out of FIR No. 21 of 2015, P.S Waleed for offence under section 9 (c) CNS Act, 1997, and acquit the appellantsDost Muhammad s/o Muhammad Sallah and Mehtab s/o Dost Muhammad both by caste Thebo from the charges by extending them the benefit of the doubt. They shall be released forthwith if not required in another custody case.

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

JUDGE