IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No.D-117 of 2009

PRESENT:

Mr. Justice Naimatullah Phulpoto,

Mr. Justice Salahuddin Panhwar,

Appellant : Munawar Ali Jatoi, through Mr. Habibullah G. Ghouri,

Advocte.

Respondent : The State, through Mr. Qazi Muhammad Bux, State Counsel.

Date of hearing: 23-08-2012. Date of Judgment: 23.08.2012.

J U D G M E N T.

NAIMATULLAH PHULPOTO, J.- Through this criminal appeal judgment dated 10.12.2009, passed by learned Special Judge for CNS, Larkana in Special Narcotic Case No.35/2008 has been challenged by the appellant Munawar son of Rustam Jatoi, whereby the appellant has been convicted and sentenced to suffer imprisonment for two years R.I and to pay fine of Rs.20,000/- and in case of default of payment of fine it was ordered that he shall undergo simple imprisonment for two months more.

2/- Brief facts of the prosecution case as disclosed in the F.I.R are that on 11.5.2008 SIP/SHO Kamaluddin of PS Arija left police station alongwith his subordinate staff in the private car vide Roznamcha entry No.10, at 1330 hours for patrolling duty. While patrolling at various places when the police party reached at Malook Khuhro, SHO received spy information that appellant was standing in the suspicious manner at link road near Khaliqoo. On such information, police party proceeded to the pointed place and reached there at 1500 hours and saw the accused standing there under the tree. Appellant while seeing the police party tried to slip away, but he was surrounded and caught hold. SHO finding the accused in the suspicious manner conducted his personal search by making ASI Hakim Ali and HC Irshad Ali as mashirs and enquired the name of the accused, to which he disclosed his name as Munawar son of Rustam, by caste Jatoi, resident of Village Ali Murad Jatoi, Taluka Larkana. From the personal search of the appellant from the left fold of his ‘shalwar’ one plastic bag was recovered, it contained Charas. Weight of the Charas came 1000 grams, out of it 100 grams were separated for sending to the Chemical Examiner for analysis. Appellant/accused was arrested, mashirnama of arrest and recovery was prepared in the presence of above-named mashirs, case property was sealed. Accused and the case property were brought at the police station, where SHO lodged F.I.R against the accused on behalf of the State under Section 9(b) of the Control of Narcotic Substances Act, 1997.

3/- After registration of the F.I.R its copy was supplied to Jameel Ahmed, investigating officer for investigation purpose. During investigation 161, Cr.P.C statements of the P.Ws were recorded. Sample of 100 grams Charas was sent to the Chemical Examiner on 19.5.2008 for analysis. Positive report was received. After usual investigation challan was submitted against the accused under Section 9(b) of the Control of Narcotic Substances Act, 1997.

4/- A formal charge against the appellant was framed at Ex.2 by the learned Special Judge for CNS, Larkana. Accused met the charge with denial. At the trial prosecution examined complainant SHO Kamaluddin at Ex.9, he produced attested copy of the Roznamcha entry at Ex.9/A, F.I.R at Ex.9/B; mashir ASI Hakim Ali was examined as Ex.7, he produced mashirnama of arrest and recovery at Ex.7/A, mashirnama of the inspection of place of wardat at Ex.7/B; P.W Jameel Ahmed, investigation officer of this case was examined as Ex.8, he produced duplicate copy of the positive Chemical report at Ex.8/A. Thereafter statement of the accused was recorded by the trial Court under Section 342, Cr.P.C. Accused claimed his false implication in this case and denied the prosecution allegations. Accused declined to examine himself on oath in disproof of prosecution allegations. After hearing the learned Counsel for the parties, learned Special Judge for CNS, Larkana came to the conclusion that case has been proved against the accused, he convicted and sentenced the appellant as stated hereinabove.

5/- Mr. Habibullah G. Ghouri, learned Advocate for the appellant contended that the prosecution story is unnatural and unbelievable. Appellant was arrested from the main road on spy information, SHO had sufficient time to collect the private persons of the locality for making them as mashir in this case but SHO failed to perform his duty honestly. He argued that evidence of the SHO, who has lodged F.I.R himself, is not trustworthy, as the same is contradictory with the evidence of the mashir on so many material points. Learned defence Counsel referred to the major contradictions in the evidence of the complainant and mashir with regard to the mode of recovery and side of the ‘Shalwar’, from which plastic bag was recovered. Reference has also been made to other contradictions with regard to the points where patrolling was made and exact location of the arrest of the accused. Learned advocate for the appellant argued that attested copy of the Roznamcha entry and duplicate positive report have been produced by the prosecution and primary evidence has been withheld without any legal justification. It has also been argued that there was delay of about 9 days in sending the sample of Charas to the Chemical Examiner and prosecution has failed to examine PC Abdul Sattar, who had taken the sample to the Chemical Laboratory, Rohri. It is argued by Mr. Ghouri that prosecution has failed to prove its case against the appellant. There are several circumstances in this case, which create reasonable doubt in the prosecution case. In support of his contentions he relied upon the case reported as Muhammad Aslam v. The State, 2011 SCMR 820.

6/- Conversely, Mr. Qazi Muhammad Bux, learned State Counsel argued that prosecution evidence is trustworthy, contradictions are minor in nature, delay in sending Charas to the Chemical Examiner would not be fatal for the prosecution case, prosecution has proved its case against the accused and prayed for dismissal of the appeal.

7/- We have carefully heard the arguments advanced by the learned Counsel for the parties and scanned the evidence and documents produced by the prosecution in the evidence.

8/- We have come to the conclusion that prosecution has failed to prove its case against the appellant for several reasons. Admittedly, this was the case of spy information. SHO had sufficient time to call the private persons for making them as mashir in this case. Omission has not been explained by the prosecution to the satisfaction of the Court. The evidence of the complainant/SHO is contradictory to the evidence of the mashir on so many material points. SHO in his evidence has stated that during patrolling police party did not stay anywhere, but on this point mashir has contradicted him and has stated that the police party stayed at Mahi Makol for half an hour. Another material contradiction has also been brought into the notice of the Court that SHO has stated that Charas was recovered from the left side fold of ‘Shalwar’ of the accused, but he is contradicted by the mashir by stating that Charas was recovered from the right side fold of the ‘Shalwar’ of the accused. SHO in his evidence has stated that accused while seeing the police party ran to the agricultural land for 70 paces, mashir has contradicted him on this point by deposing that at spot appellant was caught hold. When the State Counsel was confronted with such material contradictions in the evidence, no satisfactory explanation was furnished. Accused in his statement has claimed enmity with the police officials and stated that P.Ws are interested. In the background of the enmity, as alleged by the accused, this Court required some corroboration to the evidence of the police officials. It is a matter of the record that attested copies of the arrival and departure entries of the Roznamcha have been produced in the trial Court. Absolutely, there is no mention in the record as to why original entries were not produced or shown in the Court. For the satisfaction of the Court production of the original arrival and departure entries in the Court was very much essential in the circumstances of the case. As regards to the positive report is concerned, situation is very alarming. Charas, according to the prosecution case, was recovered from the possession of the accused on 11.5.2008, but it was sent to the Chemical Examiner on 19.5.2008. Delay of about 9 days in sending the Charas to the Chemical Examiner has not been explained. Even for the satisfaction of the Court it has not been brought on record that it was in the safe-custody of the investigating officer of the case and there was no chance of tampering. Prosecution has also failed to examine PC Abdul Sattar, who had taken sample to the Chemical Examiner, so that he could have been subjected to the cross-examination on the point as to in whose custody the sealed parcel of sample of Charas was lying during the intervening period of 9 days. The above circumstances in the light of evidence adduced by the prosecution clearly show that evidence of the prosecution witnesses is highly unbelievable. The alleged sample of the narcotic substance was sent to the Chemical Examiner after delay of 9 days, though as per Rule 4(2) of the Control of Narcotic Substances (Government Analysis) Rules, 2001, this exercise was required to be completed within seventy-two hours of the recovery, and for this purpose, even there is no plausible explanation has been furnished by the prosecution as to why such inordinate delay was caused in the completion of this exercise by the Investigating Officer.

9/- For our above-stated reasons we have no hesitation to hold that prosecution failed to prove its case against the appellant. Learned trial Court did not appreciate the evidence properly. It is the settled position of the law that if there is slightest apprehension regarding the prosecution case being not true, its benefit shall be extended to the accused. For the above-stated reasons we extend the benefit of doubt to the appellant. Resultantly, appeal is allowed, impugned judgment is set aside and the appellant is acquitted of the charge. Appellant has been granted bail by this Court vide order dated 24.12.2009. His bail bond stands cancelled and surety is discharged.

10/- This appeal was allowed by a short order dated 23.8.2012 and above are the reasons in support thereof.

JUDGE

T.H.Qazi/*