IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANO
Criminal Appeal No. D- 07 of 2021
Before:
Mr.Justice Omar Siyal
Mr. Justice Zulfiqar Ali Sangi
Appellant: Ali Nawaz Lolai, Through Mr. Saeed Ahmed B. Bijarani, Advocate.
The State: Through Mr. Muhammad Noonari, Deputy Prosecutor General.
Date of hearing: 06-04-2021
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 appellant/accused against his conviction and sentence awarded through the impugned judgment dated 18.2.2021 passed by learned Special Judge for CNS, Kashmore in Special Case No.09/2020arising out of Crime No.84/2020, registered at Police Station Gouspur, under section 9(c) of the Control of Narcotics Substance Act, 1997.
2. The brief facts of the case as contemplated in FIR, lodged by complainant S.I.P Muhammad AyoubBajkani is that on 05.10.2020, he along with his staff consisting upon PCs Nazir Ahmed and Samabo, left PS, vide entry No.36 at 2330 hours, for patrolling. It is further alleged that during patrolling, when at 0030 hours, they reached at Dolichowk, where they saw a person standing in street, carrying one poly thin bag of black colour in his hand, who on seeing police party tried to escape, but he was encircled and apprehended by complainant party alongwith poly thin bag, it was opened, which was containing charas. On enquiry apprehended accused disclosed his name as Ali Nawaz s/o Tegho, by caste Lolai, r/o village PehalwanLolaitaluka Kandhkot, and further disclosed that he used to sale the chars in town. Complainant then appointed P.Cs Nazir Ahmed and Samabo as mashirs and took his personal search and secured two currency notes of Rs.50/- each, total Rs.100/-, from side pocket of his shirt. Thereafter, complainant weighed the chars through computerized weighing scale and the charas recovered from possession of accused became Two Kilo Grams. Thereafter, complainant prepared such memo of arrest and recovery, in presence of mashirs and after completing the legal formalities brought the accused and case property at PS. where instant FIR was lodged on behalf of the State.
3. After usual investigation, the SHO PS. Ghouspur submitted charge sheet against accused, before concerned Magistrate, who sent up the case to the court of Special Judge CNS, for trial. A formal charge against accused was framed at Ex:3, to which he pleaded not guilty, vide his plea at Ex:3-A and claimed his trial.
4. Inorder to prove its case the prosecution examined complainant/Investigation Officer SIP Muhammad AyoubBajkani at Ex:5, who produced departure entry at Ex.5-A, memo of arrest of accused and recovery of chars at Ex.5-B, arrival entry at Ex.5-C, FIR at Ex.5-D, entry of registration of FIR at Ex.5-E, memo of inspection of place of vardat at Ex.5-F, departure and arrival entries at Ex.5-G and Ex.5-H, letter addressed to SSP at Ex.5-I, road certificate at Ex.5-J and report of Chemical Examiner, Chemical Laboratory Sukkur at Rohri at Ex.5-K. P.W.2 PC Samabo was examined at Ex.6 and P.W.3 PC Majid Ali was examined at Ex.7, he produced departure and arrival entries at Ex.7-A and Ex.7-B. Thereafter, learned I/C DPP for the State closed the prosecution side, vide statement at Ex.8.
5. The trial court recorded statement of accused under section 342 Cr.P.C at Ex.9, wherein he pleaded his innocence and false implication. However, neither accused led any evidence in his defence nor examined himself on oath as contemplated U/S 340 (2) Cr.P.C.
6. After assessment of evidence and hearing the parties, learned trial court has passed the above judgment. Being aggrieved by the said judgment, the appellant has preferred this criminal appeal.
7. Learned counsel for the appellant has submitted that accused is innocent and he has been falsely involved in this case by the complainant SIP Muhammad AyoubBajkani, just to show his efficiency otherwise he has nothing to do with the alleged offence. He further argued that complainant has failed to associate any private person from the vicinity to act as witness of the arrest and recovery proceedings though the place of incident was populated area.The prosecution witnesses are subordinate to complainant. He further submitted that complainant himself is investigating officer therefore, such type of investigation is illegal and faulty. He finally submitted that there are so many other contradictions in their evidence, as such, their evidence is not inspiring confidence, therefore, appellant may be acquitted by extending 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 the appellant regarding recovery of 02-Kilograms of Charas respectively from accused beyond any shadow of doubt. The report of Chemical Examiner shows that parcels contained Charas and such positive report has come on record. He also argued that minor contradictions regarding carrying the weapons, 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 the 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. SakinaRamzan 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. From the reassessment of entire evidence produced by the prosecution we have noticed some contradictions in the evidence of prosecution witnesses which are (a). Complainant during the cross-examination stated that they arrested the accused at the right side corner of street, whereas the mashir stated during the cross-examination that they apprehended the accused from the left side of the street. (b). Complainant stated during the cross-examination that he himself apprehended the accused whereas the mashir stated during the cross-examination that SIP Muhammad Ayoub and PC Nazir Ahmed jointly apprehended the accused. (c) In the mashirnama of arrest and recovery it is not mentioned that with what material/cloth the charas was sealed at the spot nor any of the witness deposed before the court however, the chemicalexaminer’s report showed that the charas was sealed in the white cloth. These contradiction are sufficient to hold that the prosecution has failed to prove the case against the appellant beyond a reasonable doubt.
11. The important point in the present case is that the complainant during the cross-examination stated that he handed over the charas to WHC Kaleemullah, who kept the same in safe custody in malkhana, the said WHC Kaleemullah was not examined by him being the investigation officer nor the said WHC was produced before the trial court to prove the safe custody of the charas in the malkhana. This point alone is sufficient to make the entire case of prosecution as doubtful. Reliance is placed on the case of Mst. SakinaRamzan v. the State (2021 SCMR 451).
12. As regards to safe transmission of the property to the chemical examiner the chemical examiners report showed that the property was sent through PC Majid Ali, PC Majid Ali was not examined during the investigation nor he was produced before the trial court to prove the safe transmission of the property which makes the case of prosecution as doubtful. Reliance is place on the case of Mst. Razia Sultana V. The State and another (2019 SCMR 1300) andZahir Shah alias Shat V. The State throughAdvocate General, Khyber Pakhtunkhwa (2019 SCMR 2004).
13. In the present case the recovery of charas was allegedly effected from the appellant on 06-10-2020 and as per the RC it was sent to the chemical examiner on 07-10-2020 but the chemical examiner’s report shows that it was reached at laboratory on 09-10-2020. The laboratory was situated at Rohri/Sukkur at the distance of about 85 Kilometers from the police station and one can came back at the police station after depositing the property within one day but in the present case there is no evidence brought on record by the prosecution that where the property was from 07-10-2020 to 09-10-2020,even the prosecution has not been able to explained such delay in sending the property to the chemical examiner which makes the case of prosecution as doubtful. Reliance is placed on the case of Nazar Muhammad alias Nazroo V. The State (2018 YLR 1992).
14. After the reassessment of material available on record 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).
15. 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 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 18-02-2021, passed by the learned Session Judge/Special Judge CNS, Kashmore, at Kandhkot in Special Narcotics case No. 09 of 2020 arising out of FIR No. 84 of 2020, P.SGhouspur for offence under section 9 (c) CNS Act, 1997, and acquit the appellantAli Nawaz s/o Tegho by caste Lolaifrom the charges by extending him the benefit of the doubt. He shall be released forthwith if not required in another custody case.
16. The above appeal is disposed of in the above terms.
JUDGE
JUDGE