IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Appeal No.   D- 64 of 2009.

                                                     Before :

     Mr. Justice Naimatullah Phulpoto -J.

Mr. Justice Farooq  Ali Channa –J.

Appellant                Abdul Ghafoor, through Mr.Akbar Ali H. Dahar,

                                    Advocate.

Respondent            The State  through Mr.Abdul Rasheed Soomro,

State Counsel.

Dates of hearing:   29.11.2012.

Date of judgment:29.11.2012.

J U D G M E N T.

FAROOQ ALI CHANNA,J.:-  The appellant through the instant Criminal Appeal has challenged the conviction awarded to him Under Section 9(b) of Control of Narcotic Substance Act, 1997 in Spl. Case No.29/2008 which was the outcome of Crime No.158/2007  of P.S Darri, District Larkana under Article 3/4 of Prohibition of Hadd Order, 1979, by the  learned Sessions Judge/Special Judge for CNS Larkana, sentencing him to undergo one year and 9 months R.I with fine of Rs.13,000/=, in case of default thereof  the appellant has to undergo S.I for  4 months and 15 days more.  The appellant was also extended the benefit U/S 382-B Cr.P.C.

                        Succinctly the facts of the prosecution case are that on 11.12.2007  the complainant ASI Qamaruddin alongwith sub-ordinates as per orders of  S.H.O P.S Darri, District Larkana raided the quarter of appellant situated in Baitul Mal Colony, Larkana, arrested the appellant Abdul Ghafoor, seized one Rifle alongwith  magazines loaded with bullets and Charas weight 1000 grams out of which 500 grams was sealed as sample for sending to the Chemical Examiner, whereas the remaining 500 grams charas  was sealed separately the complainant thereafter  brought the appellant and recovered property at Police Station where he lodged the F.I.R.

                        After completing the investigation the I.O submitted the challan, converting the Article 3/4 of Enforcement of Hadd Order, 1979 into Section 9(b) of Control of Narcotic Substance Act, 1997.  The trial Court after recording the evidence and hearing the counsel appearing for both the parties, convicted the appellant and  awarded the sentence referred hereinabove, which is impugned in this appeal.

                        Mr. Akbar Ali H. Dahar, advocate for appellant has contended that  the case is false and fabricated due to some personal grudge of complainant with the appellant.  The prosecution case is full of doubts as there is inordinate delay in sending the sample of charas to Chemical Examiner, without explaining that before sending the sample of charas to Chemical Examiner in whose custody it was lying.  He submitted that tampering with the case property could not be overruled.  The learned counsel  has further contended that the trial Court has failed to appreciate the failure on the part of prosecution for not  producing the departure Roznamcha entry whereby the police party left P.S for conducting the raid at the quarter of appellant.  The learned trial Court has also failed to appreciate that the alleged raid was in violation of Section 21 of Control of Narcotic Substance Act 1997 which provides that for search of place Search Warrants are required to be obtained.  On these points, the learned defence counsel has relied upon the case of Aijaz Ali V/S State PLJ 2001 Cr.C (Karachi) 724 (DB), Qalandro alias Nazro PLJ 1997 Cr.C.(Karachi) 577 (DB) and State through A.G Sindh Vs. Hemjoo 2003 SCMR 881.  Learned Counsel has further contended that there are material contradictions in the evidence of prosecution witness which make the dents in the prosecution case but the same were not considered hence the appellant is liable to be acquitted.

                        Conversely the learned State Counsel has contended that the prosecution case is supported by the  evidence  of eye-witnesses/mashirs in whose presence the incident had taken place and recovery effected, they have fully supported the prosecution case and  the contradictions pointed out by the Counsel for the Appellant being minor in nature are not fatal to the prosecution case.  He has further contended that the sample of contraband recovered from the appellant was sent to the Chemical Examiner  and the report was positive as such the prosecution has succeeded to establish its case against the appellant.  However, learned State Counsel  could not controvert  the lacunas in the prosecution case pointed out by the Counsel for the appellant.

                        We have considered the arguments and perused the record.  It is a matter of record that the prosecution in support of its case has not produced the copy of Roznamcha entry of leaving  the Police Station for conducting the raid at quarter of appellant which defect is sufficient    to create doubt in the entire prosecution story as the base of prosecution story for proceeding towards the place of incident is not supported by the documentary evidence though  per prosecution case such entry was made in the Roznamcha before leaving the Police Station.   It has been held in a case of Qalandro alias Nazro  Vs  State (Supra) that:-

                        “According to the prosecution witnesses they proceeded to the place of incident vide entry No.23 but no copy of the station diary has been produced to show that the police party led  by the complainant had actually left the  Police Station and proceeded to the place of incident.  Non-production of this vital document  creates a serious doubts in relation to the genuineness of the prosecution story.”

            The above dicta was also followed in the cases of Hakim Ali Vs State (Supra) and Aijaz Ali Vs State (Supra).  The production of entry in the instant case was more essential to establish the case as the entry in the roznamcha was for specific purpose of conducting the raid at the place of   incident.  The complainant has also failed to obtain the Search Warrant for conducting the raid which too is fatal to the prosecution case as held by the Honourable Supreme Court of Pakistan in a case of State through A.G Sindh Vs Hemjoo (Supra)  which reads  as under:

                         “In the present case, the Excise Inspector on receipt of  information,  went to the house of respondent and made his personal search  and then by making house search,   recovered Charas from the bed room of house, without satisfying the  requirement of section 21 ibid.  The combined study of sections 20 and 21 of the Control of Narcotic Substances Act, 1997  would show that only in exceptional cases in which the search warrant cannot possibly  be obtained before conducting  the raid, an officer authorized in this behalf can proceed for conduct of raid without  the warrant but this power cannot be allowed  to be used in every case in the normal circumstances.”

                        Per prosecution case, the police party left P.S for raid took place  at about 1.28 p.m means the information was with the police party before leaving P.S during office hours, as such, Search Warrants  could have been obtained as required U/S 21 of the Control of Narcotic Substances Act, 1997 from the concerned Court which he has failed.   No plausible explanation in this respect has been place on record. Non-compliance of 21 of Act, though not fatal to the prosecution but a general license can not be given to a raiding party to violate statutory provision of law.

                        The delay in sending samples to the Chemical Examiner is also the matter of record and admitted by the learned State Counsel.  As per prosecution case the recovery was effected on 11.12.2007  whereas per chemical Examiner’s report the property was handed over to P.C Ali Akber on 31.12.2007  after about 20 days which was delivered  to the  Chemical Examiner on 02.01.2008 with further two days delay.  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 no plausible explanation  has been furnished  by the prosecution  as to why such inordinate delay was caused in completion of this exercise by the  Investigating Officer. Nothing has been brought on record that during such intervening period who remained in possession of the sample taken from case property.  PC Ali Akbar has also not been examined by prosecution to explain the position as to how he retained the sample for further two days as such the tampering with the sample sent for Chemical Analysis can not be overlooked.

                        It is also a matter of record that property was deposited with the record keeper of Sessions Court Larkana on 07.06.2008 and as per the Deposit Receipt Exh:4, two parcels  containing 500 grams charas each duly sealed   were deposited.  If this document is believed then question arises  that which property was sent to the Chemical Examiner became as per prosecution case only two parcels containing 500 grams charas each were sealed at spot.

                        The prosecution has also failed to examine material prosecution eye-witnesses i.e. SHO, P.S Darri who per prosecution case  was the head of the raiding party  and remained at the place of incident till the recovery was effected.

                        Apart from above, as per prosecution case under the same mashirnama two  recoveries of rifle with magazines of bullets and Charas were made, however, two separate F.I.Rs U/S 13(d) of Arms Ordinance, and  under Article 3/4  of  Prohibition of Hadd  Order, 1979 were registered Challans were submitted before two Courts having jurisdiction.  In case of recovery of rifle the appellant has been acquitted by the trial Court vide Judgment dated 12.08.2009 passed in Crl. Case No.328 of 2007 copy whereof has been produced by the learned Counsel for  the appellant for perusal of this Court.  On enquiry the Counsel for the appellant has stated that the said acquittal judgment was passed after the appellant was examined U/S 342 Cr.P.C hence the copy of judgment could not be produced making it the part of the proceedings before the trial Court, however, at the time of arguments the copy was placed before the trial Court but the same was not considered.  We have examined the judgment whereby the appellant was acquitted from charge of offence U/S 13(d)  Arms Ordinance, 1979 disbelieving the prosecution case. No doubt, if the joint recovery under same mashirnama is tried by two competent Courts,  the findings of the one trial Court  are not binding  on the other trial Court, however in view of  conflicting opinion  of two competent Courts in respect of same document a doubt is created  and it is not necessary that there should be many circumstances creating doubt but a slightest doubt in the prosecution case is sufficient to entitle the accused  to be acquitted of charge. 

                        For the reasons above and the dicta laid down by apex Court, we have come to conclusion  that the prosecution case is not free from doubt. Trial Court had failed to appreciate the prosecution evidence, in accordance with settled principle of law therefore, we allow the appeal, set aside the conviction and sentence awarded to the appellant and acquit  the appellant from  the charge and surety is discharged.

                                                                                                            JUDGE

Dated: 29.11.2012.                                                 JUDGE