THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.576 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

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Appellant : Yaqoob alias Sindhi son of Ali Muhammad through Mr. Qadir Hussain Khan and Mrs. Shehla Anjum, advocates

Respondent : The State through Mr. Muhammad Iqbal Awan, Additional Prosecutor General Sindh

Date of Hearing : 13.03.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.-- Yaqoob alias Sindhi appellant was tried by learned 1^st Additional Sessions Judge/MCTC-1/Special Court (CNS), Karachi Central in Special Case No.1429 of 2022, arising out of FIR No.302/2022, registered at P.S. Nazimabad, Karachi for offences under Sections 6, 9(c) of the Control of Narcotic Substances Act, 1997. On conclusion of trial, vide judgment dated 06.09.2022, appellant was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo rigorous imprisonment for 10 years RI and to pay fine of Rs.100,000/-, in default whereof to SI for 3 months 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 SIP Agha Madad Ali of P.S. Nazimabad, during patrolling, on spy information arrested the appellant on 16.06.2022 at 01:30 a.m. from Khatiawari Mohallah, near KMC School, Nazimabad, Karachi and recovered 1100 grams charas in presence of mashirs, namely, HC Shaukat Zaidi and PC Tariq Khan. Mashirnama of arrest and recovery was prepared, thereafter, appellant and case property were brought to the police station where FIR No.302/2022 for offences under Sections 6, 9(c) of the Control of Narcotic Substances Act, 1997 was registered on behalf of the State. During investigation, charas was sent to the chemical examiner, positive report was received. On the conclusion of investigation, final report was submitted. Trial Court framed charge against the appellant under section 9(c) of the Control of Narcotic Substances Act, 1997, to which accused pleaded not guilty and claimed trial. At trial, prosecution examined four witnesses. Thereafter, prosecution side was closed.

3. Trial Court recorded statement of accused under Section 342 Cr.PC at Ex.8. Appellant claimed his false implication in the present case and denied the prosecution allegations. Appellant raised plea that police officials have deposed against him falsely, however, appellant did not lead any defence and declined to give statement on oath in disproof of prosecution allegations.

4. Trial Court after hearing the learned counsel for parties and assessment of evidence, convicted and sentenced the appellant as stated above, hence this appeal is filed.

5. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 06.09.2022 passed by the trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant mainly contended that the prosecution case was based upon spy information and alleged recovery was made at 01:30 a.m., it was night time, source of light was torch but it was not produced before the trial Court; that SIP Agha Madad Ali, PW-1 has deposed that after arrest of appellant, he was brought to the police station along with case property where he lodged FIR against the appellant on behalf of the State but there is no evidence with regard to the handing over of the case property to the Head Moharar of the police station for its safe custody and safe transmission to the chemical examiner; that there were two pieces of charas, one small and another large, weight of each piece and description have not been mentioned in the mashirnama of recovery. It is also argued that PW Salamat Ali has deposed that he did not associate private persons present at place of recovery. Lastly, it is argued that appellant in his statement has raised plea that he has been falsely implicated by the police due to enmity but no independent piece of evidence has been brought against the appellant. In support of his contentions, counsel for appellant has relied upon the case of Mir Waiz versus The State (2022 SCMR 2015).

7. Mr. Muhammad Iqbal Awan, learned Additional Prosecutor General Sindh argued that 1100 grams charas was recovered from the possession of the appellant in presence of mashirs, report of chemical examiner was positive and evidence of police officials is reliable and trustworthy. It is submitted that police officials had no enmity whatsoever against the appellant, to falsely implicate him in this case. Learned Additional Prosecutor General Sindh has prayed for dismissal of the appeal.

8. We have carefully heard the learned counsel for the parties and re-examined prosecution evidence for our satisfaction. We have come to the conclusion that the prosecution had failed to prove its case against the appellant beyond any shadow of doubt for the reasons that prosecutor story appears to be unnatural and unbelievable. Appellant was arrested on spy information at 01:30 a.m., PW-1 Agha Madad Ali had sufficient time to associate the independent and respectable persons of the locality but he avoided. It has come on record that mashirnama of arrest and recovery was prepared on the torch light but said torch was neither produced by PW.1 before the IO nor before the trial Court. It is unbelievable that the appellant was selling charas but no person was found around him at the time of recovery and arrest and those were odd hours of the night. PW SIP Salamat Ali has admitted that private persons were present but as to why they were not joined as mashir in this case has questioned the entire prosecution case. There were two pieces of charas one small and another large sized but weight of each piece and description have not been mentioned by the prosecution. As regards to the safe custody and safe transmission of charas is concerned, PW-1 Agha Madad Ali has simply deposed that after recovery he brought accused and case property to the police station and lodged FIR against the accused on behalf of the State. His evidence is silent regarding handing over of the charas to the Head Moharar for safe custody in the Malkhana of the police station and its safe transmission to the chemical examiner. We have noticed several major contradictions with regard to the material particulars of the case, including the cash recovery from the appellant and denomination of the currency notes. No doubt, Head Moharar had been examined by prosecution, he has deposed that he received the charas but his evidence is contradictory to PW-1 Agha Madad Ali. There is no evidence that PW-1 SIP Agha Madad Ali handed over charas to Head Moharar for keeping in safe custody in Malkhana. As such, link is missing in this case. It is settled principle of law that prosecution is bound to produce the evidence before the trial Court with regard to the safe custody and safe transmission of the narcotics to the chemical examiner. In case, this piece of evidence is not proved the same cannot be used against the appellant. Rightly reliance has been placed on the case of Mir Waiz versus the State (2022 SCMR 2105). Moreover, appellant in his statement recorded under section 342, Cr.PC had raised plea that police has involved him in this case falsely. Availability of private persons has come on record, non-examination of the private persons created serious doubt in the prosecution case.

9. 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.

10. 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 concession 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).

11. 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 Appellant Yaqoob alias Sindhi son of Ali Muhammad is acquitted of the charges in Special Case No.1429 of 2021, arising out of FIR No.302/2022, under sections 6, 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Nazimabad, Karachi. Appellant Yaqoob alias Sindhi son of Ali Muhammad shall be released forthwith, if not required in some other custody case..

12. These are the reasons for our short order dated 13.03.2023.

J U D G E

J U D G E

Gulsher/PS