IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No.D-77 of 2010

PRESENT:

Mr. Justice Abdul Rasool Memon,

Mr. Justice Naimatullah Phulpoto,

Appellant : Asif Ali Jagirani, through Messrs Asif Ali Abdul Razak Soomro

and Safdar Ali Ghouri, Advoctes.

Respondent : The State, through Mr. Altaf Hussain Surahio, State Counsel.

Date of hearing: 29-06-2012. Date of Judgment: 29.06.2012.

J U D G M E N T.

ABDUL RASOOL MEMON, J.- Appellant Asif Ali son of Munwar Ali, resident of Shaikh Zaiyed Colony, Larkana, was tried by Mr. Bashir Ahmed Khoso, Sessions Judge/Special Judge, for C.N.S., Larkana, on the charge of having found in possession of Charas weighing 400 grams. AT the conclusion of trial, vide impugned Judgment, dated 24.5.2010, the appellant found guilty was convicted under section 9(b) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer one year rigorous imprisonment in addition to pay fine of Rs.10,000/- (ten thousand) or in default thereof to undergo an additional imprisonment for one month. Benefit of section 382-B, Cr.P.C was also extended to him.

2/- Being aggrieved by the conviction and sentence, the appellant has filed instant criminal appeal No.D-77/2010 which is before us for consideration.

3/- Succinctly narrated the facts are, that complainant Mukhtiar Ali Thebo, A.S.I. Police Station Darri, Larkana on 01.3.2010 was on mobile duty, when he arrested the appellant Asif Ali at 2230 hours near Animal Husbandry at the road leading towards Baqapur and on his personal search 400 grams charas was found from his possession. A skimpy quantity was separated from the recovered contraband and sealed into parcel for Chemcial Examiner and such memo of arrest and recovery was prepared in presence of mashirs namely PC Sudhir Ahmed and PC Shah Muhammad and case was registered against appellant vide F.I.R No.25/2010 dated 01.3.2010 at Police Station Darri, Larkana, under Section 9(b) of the Control of Narcotic Substances Act, 1997.

4/- The prosecution in order to prove its case produced three police officials, complainant namely A.S.I. Mukhtiar Ali Thebo (P.W-1), mashir of arrest and recovery P.C Sudhir Ahmed (P.W-2) and A.S.I. Zahid Hussain, Investigating Officer (P.W-3). In evidence, memo of arrest and recovery, F.I.R and Chemical Examiner’s report were placed on record at Ex.5-A, 5-B and 7-A respectively.

5/- After recording the prosecution evidence, the learned trial Judge examined the appellant under Section 342, Cr.P.C wherein he denied the prosecution allegations and claimed to have been falsely implicated. He led no evidence in defense.

6/- At the conclusion of trial, the appellant having been adjudged guilty, was convicted and sentenced as noted above.

7/- In support of the appeal Mr. Asif Ali Abdul Razak Soomro, Advocate for the appellant contended, inter alia, that the impugned Judgment is noticeably against the law, facts and material available on the record of the case and finding and conclusion arrived at are, on the face of it, erroneous and as such cannot be allowed to remain in intact. The learned counsel submitted that appellant has remained unrepresented by Advocate during the trial proceedings even then he was able to bring material contradictions in the evidence of prosecution witnesses which has made the recovery highly doubtful. Concluding the arguments, the learned Counsel submitted that sample was dispatched to the laboratory with delay without any explanation and as such report of the analyst is of no avail of the prosecution. In support of the contention reliance was placed on Asghar Ali Versus The State, 1996 SCMR 1541, Amjad Ali Versus The State, 2012 SCMR 577 and Sayed Saeed Mohammad Shah Versus The State, 1993 SCMR 550.

8/- Contrarily, learned Counsel for State has candidly conceded the arguments advanced at Bar by learned Counsel for the appellant and submitted that impugned Judgment is not sustainable under the law.

9/- We have heard in detail the arguments of learned Counsel for the parties in the light of the material brought on the record.

10/- It needs no recurrence that it is the primary obligation of the prosecution to prove its 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 established 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/- In the present case F.I.R is placed on record at Ex.5-B. Its contents clearly indicate that contraband/Charas allegedly recovered from the possession of appellant wrapped in the plastic was in the fold of ‘Shalwar’. But complainant A.S.I Mukhtiar Ali Thebo (P.W-1) in his deposition stated that the said contraband/Charas was recovered from right side fold of Shalwar of the appellant which is not mentioned in the F.I.R. Besides this, mashir of arrest and recovery P.C Sudhir Ahmed in his deposition at (Ex.6) has given dissimilar story regarding the recovery, which indicate that pieces of Charas were recovered from right side pocket. The finding of the trial court in impugned Judgment to the effect that there is no contradiction in the evidence of prosecution witnesses is not sustainable in view of the afore said contradictions in the evidence of material witnesses and discrepancies in the F.I.R.

12/- Having heard the arguments of learned Counsel for the parties and taking notice of the contradictions pointed out by learned Counsel for the appellant in the statements of A.S.I. Mukhtiar Ali Thebo and P.C Sudhir Ahmed, we find ourselves in agreement with learned Counsel for the appellant that prosecution has failed to prove its case beyond shadow of reasonable doubt and the recovery has not been satisfactorily proved. Both the witnesses contradicted each other on point of recovery.

13/- It has also been contended with justification that there was delay in dispatching the sample to the Chemical Examiner, which makes the recovery doubtful. The alleged recovery having been effected on 01.3.2010 and one parcel containing Charas was received in the office of Chemical Examiner Rohri on 13.3.2010. The report (Ex.7-A) of the Examiner is dated 17.3.2010. There is no explanation on record as to in whose custody the said parcel was lying during this period. No implicit reliance can be placed in view of aforesaid contradictions in the evidence of prosecution witnesses.

14/- 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 accept this appeal, set-aside the conviction and sentence recorded against the appellant by the trial Court and acquit him of the charge and his surety is discharged.

JUDGE

T.H.Qazi/*