IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No.D-34 of 2023

PRESENT:

Mr. Justice Muhammad Saleem Jessar,

Mr. Justice Jawad Akbar Sarwana,

Appellant : Majid son of Allah Warayo @ Allah Ditto @ Allah

Wadhayo Bhutto, through Mr. Asif Ali Abdul Razak

Soomro, Advocate.

Respondent : The State, through Mr. Aitbar Ali Bullo, Deputy

Prosecutor General.

Date of hearing : 30.01.2024.

Date of Judgment : 30.01.2024.

J U D G M E N T.

Muhammad Saleem Jessar, J.- Through instant appeal, appellant Majid son of Allah Warayo alias Allah Ditto alias Allah Wadhayo Bhutto has assailed the judgment, dated 06.05.2023, penned down by learned 1^st Additional Sessions Judge/MCTC, Jacobabad, in Special Case No.14/2022, re-The State Vs. Majid Bhutto, being outcome of Crime No.221/2022, registered at Police Station A-Section, Kandhkot, for offence under Section 9(c) of Control of Narcotic Substances Act, 1997, whereby he was convicted and sentenced to suffer R.I. for 9 years, with fine of Rs.80,000/- (rupees eighty thousand); in default whereof to suffer simple imprisonment for two years more. However, benefit of Section 382-B, Cr.P.C was extended to the appellant.

2. The crux of the prosecution case as unfolded by complainant SIP Akbar Ali Bhangwar of P.S A-Section, Kandhkot, is that on 25.12.2022, he along with his subordinates was on patrolling, during which they spotted the appellant/accused Majid Bhutto near Suhriyani Graveyard situated on the link road leading from Juman Shah to Degree College, Kandhkot and recovered 1250 grams charas lying in a black colour shopper. After preparation of memo of arrest and recovery on spot, the charas and the accused were taken to police station, where instant case was registered on behalf of State.

3. After registration of the FIR, investigation was assigned to SIP Ghulam Shabir Mirani, who after completion of usual formalities submitted challan before the competent Court of law.

4. In order to prove its case, the prosecution examined in all six witnesses, namely, PW-1 mashir PC Muhammad Tayab, PW-2 incharge Malkhana PC Faisal Akhtar, PW-3 complainant SIP Akbar Ali Bangwar, PW-4 IO/SIP Ghulam Shabeer Mirani, PW-5 dispatch rider PC Sadam Hussain and PW-6 second mashir PC Muhammad Asad. Then side of the prosecution was closed vide Ex.9.

5. On conclusion of trial, the learned trial Court held the appellant guilty of the charge, hence awarded him conviction and sentence, as mentioned supra, which has been challenged by the appellant through this appeal.

6. Learned Counsel for the appellant contended that though the alleged contraband was shown to have recovered in pieces, yet the number of such pieces was neither mentioned in the mashirnama nor in the evidence. He next submitted that the charas was foisted upon the appellant at the behest of his rivals owing to the tribal clash and such plea specifically raised by the appellant in evidence as well as in his statement recorded u/s 342, Cr.PC, was also supported from the evidence of D.Ws examined by him in his defense, but the learned trial court did not consider the same properly and brushed it aside by simply observing that the statements of DWs were contradictory. He further contended that the alleged recovery was made at the busy public place of Kandhkot town, but even then no independent person was picked from general public to act as witness/mashir of alleged recovery. He also submitted that the sample was sent to the laboratory after four days of recovery and the delay so caused was not explained satisfactorily by the prosecution. Lastly, learned Counsel submitted that the plea taken by the accused at trial has not been kept in juxtaposition with the prosecution case by the trial Court. He, therefore, submitted that the case against the appellant is full of doubts, hence he may be acquitted by extending benefit of doubt. In support of his contentions, he has placed reliance on the case of Tariq Pervaiz vs. The State (1995 SCMR 1345).

7. On the other hand, learned DPG while supporting the impugned judgment, opposed the appeal and contended that the prosecution has succeeded to establish the charge against the appellant and the impugned judgment does not suffer from any illegality or infirmity, which may require interference by this Court in this appeal.

8. We have considered the submissions of learned Counsel for the parties and have examined the material available on record.

9. Admittedly, the prosecution has not explained delay of 04 days for keeping the contraband at police station and subsequently its dispatch to the laboratory concerned for its examination. The delay so occasioned on the part of the prosecution is sufficient to hold that the prosecution has not come with clean hands. Moreover, the evidence of complainant and the mashir does not show the number of pieces of charas allegedly recovered from the appellant; even the mashirnama does not contain the number of pieces. No doubt, the prosecution has examined incharge Malkhana PC Faisal Akhtar, with whom the alleged contraband was kept in safe custody, but the delay of 04 days in sending the sample to the laboratory has not been plausibly explained by the prosecution. In such view of the matter, positive report of chemical examiner does not appear to be much importance. The alleged recovery was though made at the busy area of Kandhkot town, yet no independent person of the locality was cited or picked to act as witness/mashir of the recovery proceedings. No doubt Section 34 of the Act of 1997 debars the applicability of Section 103, Cr.P.C; however, when a police officer was going to charge a person for the offence which carries punishment of imprisonment, then it was incumbent upon him to associate some independent person(s) aims to avoid possibility of any doubt as to the recovery proceedings. The defense evidence led by the appellant was discarded by the trial Court on certain contradictions in the statements of DWs; however, the law is settled that the prosecution has to stand on it’s own legs and it cannot be benefited from the weakness of defense. We have also noted certain contradictions in the evidence of the eye-witnesses, namely, PC Muhammad Tayab and PC Muhammad Asad. PW-1 PC Muhammad Tayab stated in his cross-examination stated that that all of them jointly apprehended the accused, while according to PC Muhammad Asad, complainant SIP Akbar Ali apprehended the accused. PC Muhammad Asad stated that SIP Akbar Ali himself had written down the FIR, while according to SIP Akbar Ali, the Munshi of PS had written the FIR under his dictation, whose name he did not remember. There are many other contradictions in the evidence of PWs, particularly the eye-witnesses of the alleged recovery and the trial Court has neither discussed nor considered those while passing the impugned judgment.

10. There cannot be squabble with the proposition it is the primary obligation of the prosecution to prove it’s case beyond reasonable doubt and its burden is not shifted under the presumption contained in section 29 of the Act. It only says that once the prosecution establishes recovery beyond shadow of doubt it is then that the burden is shifted. Section 29 of the Control of Narcotic Substances Act, 1997 does not absolve the prosecution of its primary duty to prove its case beyond doubt.

11. After having analyzed the entire case, we are of the considered view that prosecution has failed to prove its case against the appellant beyond reasonable doubt so, we while extending the benefit of doubt accepted this appeal, set-aside the conviction and sentence recorded against the appellant by the trial Court vide impugned judgment dated 06.05.2023 and acquitted him of the charge by a short order passed in Court on 30.01.2024. Above are the detailed reasons for such short order.

JUDGE