IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Appeal No. D- 27 of 2023.

Present:

Mr. Justice Muhammad Saleem Jessar,

Mr. Justice Jawad Akbar Sarwana,

Appellant Through M/s Asif Ali Abdul Razak Soomro and

(Nek Muhammad) Safdar Ali Ghouri, Advocates.

Respondent Through Mr. Aitbar Ali Bullo, DPG.

Date of hearing : 13.3.2024.

Date of Judgment : 13.3.2024.

J U D G M E N T

MUHAMMAD SALEEM JESSAR, J.- By this Criminal Appeal, appellant Nek Muhammad Soomro has assailed the judgment dated 11.4.2023 passed by learned 1^st Additional Sessions Judge/MCTC/Special Judge for CNS Cases, Kandhkot, in Special Narcotics Case No.24 of 2022 re: The State v. Nek Muhammad Soomro, emanating from Crime No.176 of 2022, registered with Police Station A-Section, Kandhkot, District Kashmore at Kandhkot, for an offence under Section 9(c) of Control of Narcotic Substances Act, 1997, whereby the appellant has been convicted and sentenced to suffer R.I for 09 years and pay fine of Rs.80,000/-; in case of default in payment of fine to further undergo S.I for 2 years. Benefit of Section 382-B, Cr.P.C has also been extended to the appellant.

2. Briefly, the facts of the prosecution case as disclosed in the FIR lodged by ASI Balaksher Jakhrani are that on 19.10.2022, he along with PC Mohammad Tayyab, PC Mohammad Asad, DPC Riaz Ahmed, left PS in police mobile, under Entry No. 48, at 2050 hours, for patrolling purpose. During patrolling, when they arrived behind Ideal Hospital, Kandhkot in a street leading towards Mitha Chowk, near Old Mill, where they saw on bulb’s light that a person having black colour shopping bag was coming by foot, who on seeing police party started to go backward. The police party stopped the vehicle, alighted from it, chased and apprehended said person at the distance of 10 paces at 2145 hours. The complainant took the black colour shopping bag from accused and found 04 pieces of charas in it. The complainant weighed the charas on digital weighing scale, which became 1500 grams. On query, he disclosed his name to be present appellant. On further enquiry, the accused disclosed that he was going to sell out the charas. The complainant by citing PC Mohammad Tayyab and PC Mohammad Asad as mashirs, conducted body search of the accused but nothing was recovered. Thereafter, complainant sealed charas on spot, prepared mashimama of arrest and recovery in presence of above-named mashirs and got their signatures on it, as such, the arrested accused and recovered property were brought at PS, where instant FIR under section 9(c) CNS Act, 1997 was registered against the accused on behalf of State.

3. On completion of usual investigation the case was challaned and the appellant was sent up to stand trial before learned trial Court.

4. Trial Court framed charge against the appellant/accused at Ex.2, to which he pleaded ‘not guilty’ and claimed to be tried vide his plea recorded at Ex.2/A.

5. In support of its case, the prosecution examined PW/complainant ASI Balakhsher at Ex:3, PW/Mashir PC Muhammad Tayab Gujrani at Ex:4, SIP/I.O Akbar Ali Bangwar at Ex:5, the PW/dispatch rider PC Nawab Ali Bangwar at Exh: 6 and PW/PC Faisal Akhtar Bhutto, incharge of Malkhana, at Ex:7, respectively. Thereafter, learned DDPP for the State closed the prosecution side vide statement at Ex.8.

6. The statement of accused as provided under section 342 Cr.P.C has been recorded at Ex.9, wherein he (accused) neither got examined any witness in his defense nor opted to examine himself on oath, however, he stated that he is innocent and the charas was foisted upon him at the instance of SHO Gul Muhammad Mahar of P.S A-Section, Kandhkot; hence, prayed for justice and mercy.

7. On conclusion of trial and after hearing learned counsel for the parties, learned trial Court passed impugned judgment dated 11.4.2023, whereby the appellant was convicted and sentenced, as above, giving rise to filing of instant criminal appeal.

8. Learned counsel for the appellant has mainly contended that the appellant is innocent and he has been falsely implicated by the police with malafide intention and ulterior motives. He next contended that the appellant is victim of personal grudge of SHO Gul Mohammad Mahar due to non-payment of illegal gratification to him and the alleged charas has been foisted upon the appellant. He further contended that there is conflict in the chemical report issued by FSL regarding weight of the contraband charas, as the prosecution has claimed that 1500 grams was recovered from the possession of accused but as per chemical report the weight of the contraband charas was 1300 grams. He contended that per prosecution story there were 04 pieces of charas, while the I.O SIP Akber Ali himself stated in his examination-in-chief that besides less weight of charas the Chemical Examiner has mentioned receiving of 05 pieces instead of 04 pieces of charas, which creates doubt and benefit thereof has to go in favour of the accused. Learned counsel further contended that there are major contradictions in the depositions of the complainant and recovery mashir; that both mashirs of arrest and recovery are police personnel and subordinates to the complainant; hence, they are set up, interested and partisan. He further contended that place of incident is located within populated area, but no efforts were made to associate any private person to attest the recovery proceedings. He argued that credibility of the complainant is under clouds, therefore, there is every likelihood to believe that he falsely implicated the present appellant/accused in this case and that learned trial judge has totally brushed aside the defence version in instant case without rational assessment of evidence and material brought on record therefore, impugned judgment is not sustainable under the law and is liable to be set aside. Per learned counsel, on all these scores, prosecution has failed to bring home the guilt of the accused/appellant beyond shadow of reasonable doubt; hence, the impugned judgment is liable to be set aside and appellant is entitled to be acquitted by extending benefit of doubt.

9. On the other hand, learned D.P.G supported the impugned judgment, on the grounds that the appellant was apprehended at the spot and charas weighing 1500 grams was recovered from his exclusive possession which was contained in black shopper carried by appellant. He contended that the recovered contraband was sent for chemical examination and report, which was received in positive and all prosecution witnesses have fully implicated the present appellant; their evidence does not suffer from any material contradiction, therefore, impugned judgment does not call for any interference by this Court and instant appeal is liable to be dismissed.

10. We have carefully considered the submissions advanced by learned counsel for the parties and scanned the evidence available on record.

11. The prosecution case against present appellant is that on 19.10.2022 a police party headed by ASI Balakhsher Jakhrani during routine patrolling spotted appellant having black shopper in his hand in suspicious condition, who on seeing police officials tried to slip away but was apprehended by them and black shopper was recovered from his possession which contained contraband charas in shape of 4 pieces, which was weighed on spot and became 1500 grams, hence the instant FIR was lodged.

12. Perusal of record reveals 1500 grams contraband was recovered from the appellant in shape of four pieces; however, perusal of Chemical Examiner’s report reveals that weight of contraband received by Chemical Examiner is mentioned as gross weight 1335 grams and Net Weight 1300 grams. Besides, it is also noted that per FIR there were in all four pieces of charas allegedly recovered from possession of the appellant, while per report of chemical examiner, contraband in shape of five pieces of charas was received by Chemical Laboratory Rohri for chemical examination. In this regard, perusal of letter dated 14.11.2022 issued by SSP Kashmore (addressed to Director General Health, Government of Sindh Hyderabad) available at page No.75 of the paper book, shows that SSP concerned asked/recommended for enquiry and departmental action against the defaulters in respect of above variation in number of pieces as well as weight of charas. Looking to such glaring conflict between the number of pieces and weight of contraband from the one allegedly recovered to the other received in the Chemical Laboratory, the credibility of safe custody and safe transmission of contraband is reduced to none.

13. We have also scanned the prosecution evidence brought on record and find that there are major contradictions in the statements of prosecution witnesses recorded at the trial on different counts viz., different places of patrolling before seizure and arrest as well as mode of arrest etc. Complainant Balakhsher stated in his cross-examination that during patrolling first they went to Degree College, then to Jhooley Lal, then to Library Chowk, then Ghanta Ghar and finally to Ideal Hospital; while Mashir Muhammad Tayyab contradicted to this effect by stating that first they went to Library, then to Ghanta Ghar and then to place of arrest. Besides, there are also number of infirmities/lacunas, as stated above, regarding variation in number of pieces of contraband as well as weight of contraband at different stages, which have created serious doubt in the prosecution case. All these contradictions and infirmities in the prosecution case create serious doubts and benefit thereof must go to the accused.

14. The alleged recovery was effected from the appellant on 19.10.2022 and was sent to the chemical examiner on 21-10-2022. Such delay in dispatching the contraband has not been explained by the prosecution, which again makes the case of prosecution doubtful. Although, incharge Malkhana P.W/PC Faisal Akhtar was examined by the prosecution, who stated in his chief that I.O/SIP Akbar Ali Bangwar handed over him recovered charas weighing 1500 grams, but as per report of chemical examiner its gross weight was 1335 grams and net weight as 1300 grams. Besides, PC Faisal Akbar also stated in his cross-examination that he had not kept entries regarding receiving of charas from the complainant or handing over same by complainant to I.O. All these factors denied the safe-custody of contraband at Malkhana and its safe-transmission to the Chemical Laboratory. 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 be 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. In another case of Zahir Shah alias Shat V. The State through Advocate General, Khyber Pakhtunkhwa (2019 SCMR 2004), Honourable Supreme Court has held as under:-

“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).

16. 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 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."

17. In view of the above discussion, coupled with the dictum laid down by Hon’ble Supreme Court in reported cases referred to as above, we are of the considered view that prosecution has failed to bring home the guilt of the accused/appellant beyond shadow of reasonable doubt and it suffers from doubts which are fatal to the prosecution case, therefore, the impugned judgment dated 11.4.2023 passed by learned 1^st Additional Sessions Judge/MCTC/Special Judge for CNS Cases, Kandhkot, in Special Narcotics Case No.24/2022 re-The State v. Nek Muhammad Soomro, is set aside. Consequently, instant appeal is hereby allowed. Resultantly, the appellant is hereby acquitted of the charge by extending him benefit of doubt. He shall be released forthwith if not required in any other custody case.

18. These are the reasons of our short order dated 13.3.2024 by which instant appeal was allowed.

JUDGE

shabir