IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Appeal No.   D-  34 of 2011.

Present:

                                                Mr. Justice Naimatullah Phulpoto.

                                                Mr. Justice Farooq Ali Channa.

Fida Hussain Sethar.                                               …………...Appellant.

Versus

The State.                                                                   …..…..….Respondent.

Mr. Asif Ali Abdul Razzak Soomro, Advocate for the appellant.

                        Mr. Naimatullah Bhurgri, State counsel.

Date of hearing:                    19.12.2012.

Date of judgment:                19.12.2012.

J U D G M E N T

Naimatullah Phulpoto, J-.  Appellant Fida Hussain Sethar was tried by learned Special Judge for CNS, Kamber-Shahdadkot, in special case No.20/2009, St. v. Fida Hussain Sethar. Appellant was convicted under Section 9 (c) of the Control of Narcotic Substances Act, 1997, and was sentenced to seven years R.I, and to pay fine of Rs.10,000/-; in case of default in payment of fine the appellant was further ordered to suffer S.I for six months more. Benefit of Section    382-B Cr.P.C. was extended to the appellant.

2.         Brief facts leading to the filing of the instant appeal are that on 08.4.2009, complainant Khadim Hussain SHO of PS Mirokhan, was present at Police station; he received spy information that accused wanted in Crime No.110/2008, under Section 9 (b) of CNS Act, 1997, registered at PS Mirokhan and absconder in Crime No.13/2009, registered under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, at PS Mirokhan, was present at his Otaq and he was selling chars. On such information, SHO alongwith his subordinate staff, namely, A.S.I Ghulam Abbas Chandio, P.Cs Piyar Ali, Sikander           Ali and Abdul Samad left police station in Government                        vehicle  vide roznamcha entry No.08, at 1130 hours and proceeded to the pointed place and reached at the Otaq of appellant at 12.00 noon, where police party saw that present appellant was sitting on the mat and there was plastic bag in front of him. The appellant while seeing the police party tried to run away while taking plastic bag, but police party surrounded and caught him hold. Appellant was arrested by SHO in presence of Mashirs ASI Ghulam Abbas Chandio and PC Piyar Ali; his name was enquired, to which he disclosed his name to be Fida Hussain son of Abdullah alias Hussain by caste Sethar, resident of village Darra, near Shahpur, taluka Mirokhan. Plastic bag was taken in possession by the SHO and it was opened in presence of the mashirs; in the plastic bag there was a small knife and pieces of charas. Charas was weighed, it became 1100 grams. 200 grams were separately sealed for sending to chemical examiner. Personal search of the appellant was also conducted; from right side pocket of his shirt cash of Rs.230/- was recovered. Mashirnama of arrest and recovery was prepared in presence of the mashirs. Thereafter, accused and case property were brought to PS, where FIR on behalf of the State vide Crime No.36/2009, under Section 9 (c) of the Control of Narcotic Substances Act, 1997, was registered.

3.         After registration of the FIR, copy of FIR was supplied to the Investigating Officer. After completion of the investigation challan was submitted against the appellant under Section 9 (c) of the Control of Narcotic Substances Act, 1997.

4.         A charge was framed against the appellant under Section 9 (c) of the Control of Narcotic Substances Act, 1997. To the charge, the appellant pleaded not guilty and claimed to be tried. At the trial the prosecution examined complainant SHO Khadim Hussain, Mashir ASI Ghulam Abbas and S.I.O Abdul Wahab. Thereafter, side of the prosecution was closed on the completion of prosecution evidence. After hearing the counsel for both the parties appellant was convicted and sentenced as stated above.

5.         Mr. Asif Ali Abdul Razzak Soomro, learned Advocate for the appellant mainly contended that it was the case of spy information, inspite of that SHO failed to associate with him private persons of the locality. Even SHO failed to call any person from the village to make him mashir in this case. He has further contended that original arrival and departure entries have also not been produced. He further submitted that complainant and I.O in their depositions no where have stated that charas was sent to the chemical examiner for analysis. He further submitted that in-fact examiner’s report was not produced in the evidence, which could have been subjected to the cross examination by deference counsel. It is further argued that inspite of that reliance has been placed by the trial Court upon report of the chemical examiner. There was delay of 13 days in sending the charas to the chemical examiner, for which no plausible explanation has been furnished. He has further submitted that according to the case of prosecution, pieces of charas were recovered from the possession of appellant, but number of such pieces have not been mentioned and copies of the FIRs: already registered against the appellant have also not been placed on record, to show that police officials had actually left for arrest of the wanted accused in the aforementioned cases. Lastly, it is contended that prosecution case is highly unnatural and unbelievable and appellant is entitled to the benefit of doubt.

6.         Learned State Counsel argued that all the prosecution witnesses have fully implicated appellant in the commission of the offence. Report of the chemical examiner is positive. Police officials had no enmity with appellant to foist charas upon him.

7.         We have carefully heard the learned counsel for the parties, and scanned the entire evidence available on record.

8.         We have come to the conclusion that prosecution case is not free from the doubt for several reasons. Admittedly, this was the case of spy information, police had advance information, inspite of that persons of the locality were not associated to make them as mashirs in this case. Entry of spy information was not made by SHO in roznamcha for satisfaction of Court. It has also come on record that SHO left for arrest of accused wanted in Crime No. 110/2008, under Section 9 (b) of CNS Act, 1997, and Crime No.13/2009, registered under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, at PS Mirokhan, but copies of those FIRs: have not been brought on record in order to establish that SHO had actually left PS to arrest the wanted accused. The complainant and Investigating Officer no where in their evidence have stated that they sent the charas to the chemical examiner for analysis. From perusal of chemical report it transpired that it was sent to the chemical examiner after 13 days of recovery, for which no plausible explanation has been furnished. Report of chemical examiner was not produced in evidence according to law. Certainly, its benefit shall go to the appellant. Other material contradictions with regard to mode of recovery have also been brought on record.

9.         Therefore, we have no hesitation to hold that prosecution case is not free from doubt. It is settled principle of law that if there is slightest doubt in the prosecution case, its benefit shall go to the accused, therefore, while extending benefit of doubt to appellant, appeal is allowed, conviction and sentence dated 19.3.2011, are set aside. The appellant is acquitted of the charge. He is present on bail, his bail bond stands cancelled and surety discharged.

Judge

Judge