THE HIGH COURT OF SINDH AT KARACHI
Criminal Jail Appeal No.14 of 2023
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Shamsuddin Abbasi
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Appellant : Saifullah
son Mansoor Khan through Mr. Habibullah, Advocate
Respondent
: The State through
Mr. Muhammad Iqbal Awan, Additional Prosecutor General Sindh
Date of Hearing : 28.02.2023
JUDGMENT
NAIMATULLAH
PHULPOTO, J.-- Saifullah appellant was tried by
learned Additional Sessions Judge-VII/MCTC-2, Karachi Central in Special Case
No.674 of 2021. On conclusion of the trial, vide judgment dated 17.10.2022,
appellant was convicted under Section 9(b) of the Control of Narcotic
Substances Act, 1997 and sentenced to undergo rigorous imprisonment for 01 year
and 03 months, with direction to pay fine of Rs.9000/-. In
case of default in payment fine, to undergo SI for 3 months and 15 days more.
Benefit of Section 382(b) Cr.P.C was also extended to the appellant.
2. Brief facts leading to the filing of
the instant appeal are that on 26.05.2021, ASI Muhammad Hashim left the police
station along with his subordinate staff for patrolling vide
Entry No.19 at about 2000 hours. When the police party reached at Achanak
Hotel, it was 05:30 a.m. (dawn time) where it is alleged that present appellant
was running in suspicious manner, he was apprehended by the police party and on
inquiry he disclosed his name as Saifullah son of Mansoor Khan. His personal search
was conducted and from the right side pocket of his pant a plastic shopper was
recovered, it contained 120 grams charas. Appellant was arrested in presence of
mashirs, namely, PC Lutuf Ali and DPC Younus. Case property was sealed at the
spot. Thereafter, appellant was bought to the police station where FIR was
lodged against the appellant on behalf of the State being Crime No.713/2021 for
offence under Section 9(b) of the Control of Narcotic Substances Act, 1997. During
investigation charas was sent to the chemical examiner for analysis, report was
positive. On the conclusion of the investigation, challan was submitted against
the accused. Trial Court framed Charge against appellant at Ex.2 under the
above referred section. Accused pleaded not guilty and claimed trial. At trial,
prosecution examined four witnesses. Thereafter, prosecution side was closed.
2. Trial Court recorded statement of
accused under Section 342 Cr.P.C at Ex.8. Appellant claimed his false
implication in the present case and denied the prosecution allegations.
Appellant did not lead any defence and declined to give statement on oath in
disproof of prosecution allegations.
3. Trial Court after hearing the learned
counsel for the parties and assessment of evidence, convicted and sentenced the
appellant as stated above, hence this appeal is filed.
4. Learned counsel for the appellant
mainly contended that the prosecution had failed to establish before the trial
court the safe custody of the charas and its safe transmission to the chemical
examiner. It is further contended that there are material contradictions in the
evidence of the prosecution witnesses. It is contended that it was night time,
source of light is not mentioned and according to the evidence of the
prosecution witnesses mashirnama was prepared on the light of torch but the
said torch was not produced before the trial court. It is lastly submitted that
appellant was aged about 18 years at the time of arrest and he has been falsely
implicated in this case.
5. Mr. Muhammad Iqbal Awan,
learned Additional Prosecutor General Sindh argued that 120 grams charas was
recovered from the possession of the appellant in presence of mashirs, report
of chemical examiner is positive and evidence of the prosecution witnesses is
reliable and trustworthy. He has prayed for dismissal of the appeal.
6. We have reassessed the evidence of the
prosecution witnesses and have come to the conclusion that safe custody and
safe transmission of charas to the chemical examiner have not been established
before trial Court. Mere words of the police officials without material are not
sufficient. It has come on record that place of arrest was thickly populated
area i.e. Achanak Hotel at Katchi Abadi,
however, no efforts were made by the ASI to call the independent persons of the
locality/vicinity to witness the incident but in this case appellant has
alleged enmity with the police officials and the presence of the private
persons has also come on record and non-examination/association of the private
persons would be fatal to the prosecution case. From perusal of evidence of
complainant ASI Muhammad Hashim it transpired that after arrest of the accused,
mashirnama was prepared by Munshi/PC on his dictation but PC Lutuf Ali at Ex.3
has deposed that mashirnama was prepared by ASI Muhammad Hashim himself on
torch light. The torch on which mashirnama was prepared was not produced before
the trial court.
7. The prosecution has failed to offer
plausible explanation as to where the charas was kept during intervening period.
In narcotics cases, it is duty of the prosecution to establish each and every
step from the stage of recovery, making of sample parcels, safe custody of
sample parcels and safe transmission of the sample parcels to the concerned
laboratory. This chain has to be established by the prosecution and if any link
is missing in such like offences the benefit must have been extended to the
accused. Reliance is placed upon the cases reported as the State through Regional
Director ANF Vs. Imam Bakhsh and others (2018 SCMR
2039). In these circumstances, we have come to an irresistible
conclusion that the prosecution has failed to prove the case against the
appellant beyond any shadow of reasonable doubt.
8. Even otherwise, it is well settled that
for the purposes of extending the benefit of doubt to an accused, it is not
necessary that there be multiple infirmities in the prosecution case or several
circumstances creating doubt. A single or slightest doubt, if found reasonable,
in the prosecution case would be sufficient to entitle the accused to its
benefit, not as a matter of grace and conces sion but
as a matter of right. Reliance in this regard may be placed on an unreported
judgment dated 13.12.2022 of the Hon’ble Supreme court passed in the case of Ahmed Ali and another vs. The State
(Criminal Appeal No. 48 of 2021) and the cases reported as Tajamal
Hussain v. the State (2022 SCMR 1567), Sajjad Hussain v. the State (2022 SCMR
1540), Abdul Ghafoor v. the State (2022 SCMR 1527 SC), Kashif Ali v. the State
(2022 SCMR 1515), Muhammad Ashraf v. the State (2022 SCMR 1328), Khalid Mehmood
v. the State (2022 SCMR 1148), Muhammad Sami Ullah v. the State (2022 SCMR
998), Bashir Muhammad Khan v. the State (2022 SCMR 986), The State v. Ahmed
Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. the State (2021 SCMR 736),
Muhammad Imran v. the State (2020 SCMR 857), Abdul Jabbar v. the State (2019
SCMR 129), Mst. Asia Bibi v. the State (2019 PLD 64 SC), Hashim Qasim v. the
State (2017 SCMR 986), Muhammad Mansha v. the State (2018 SCMR 772), Muhammad
Zaman v. the State (2014 SCMR 749 SC), Khalid Mehmood v. the State (2011 SCMR
664), Muhammad Akram v. the State (2009 SCMR 230), Faheem Ahmed Farooqui v. the
State (2008 SCMR 1572), Ghulam Qadir v. the State (2008 SCMR 1221) and Tariq Pervaiz
v. the State (1995 SCMR 1345).
9. For what has been discussed above, we are
of the view that the prosecution has failed to prove its case beyond a
reasonable doubt and the benefit of doubt is extended to the appellant. Consequently,
this appeal is
allowed and conviction and sentence recorded by the trial Court are hereby set
aside and appellant Saifullah son of Mansoor Khan is acquitted
of the charge. He shall be released forthwith, if not
required to be detained in any other custody case.
10. These are the reasons for our short order
dated 28.02.2023.
J U D G E
J
U D G E
Gulsher/PS