Cr

Cr.Jail Appeal No.D- 34 of 2012.

Present.

Mr.Justice Ahmed Ali Shaikh.

Mr.Justice Salahuddin Panhwar.

Appellant Abdul Latif through Mr.Abdul Haq G. Odho advocate.

Respondent The State through Mr.Sardar Ali Shah APG.

J U D G M E N T.

SALAHUDDIN PANHWAR,J- By this criminal jail appeal, the appellant has assailed the Judgment dated 4.5.2012 passed by the Special Judge (CNS), Khairpur in Special Case No.50/2011 (Re-The State v Abdul Latif arising out of Crime No.50/2011 of Police Station, Sorah, registered for offence under Section 9-C Control of Narcotic Substance Act, 1997 whereby convicting the appellant under Section 9(c) CNS Act, 1997 and sentenced him to suffer R.I for six years and to pay a fine of Rs.50,000/- and in case of default in payment of fine, the appellant shall further undergo S.I for three months. The benefit of Section 382-B, Cr.P.C was also extended in favour of the appellant.

2. The relevant facts leading to this appeal are that complainant SIP Irshad Hussain Lashari left Police Station, alongwith ASI Sikander Ali, HC Ghulam Qadir, PC Mir Hassan, PC Alam Khan alongwith DPC Anwaruddin in Government Mobile for patrolling vide DD No.7 at 1100, hours; when they reached at Khatarnak Morr(curve), they saw a person, having black plastic Thelhi in his hand, was standing there,and tried to escape away but was apprehended after 10 to 12 paces;during interrogation, disclosed his name Abdul Latif, and that he is absconder in Crime No.80/2009, under Section 365-A, PPC Police Station, Sorah and in Crime No.37/2009 under Section 399 PPC Police Station, Sorah, thus, he was arrested; due to non-availability of private mashirs, ASI Sikander Ali and HC Ghulam Qadir acted as mashirs. Plastic Thelhi was opened and found eight pieces of Charas and same was weighed at the spot and became 4000 Grams; and same was sealed at the spot. On personal search Rs.500/- were also recovered from the front pocket of shirt of accused, such mashirnama of arrest and recovery was prepared there in presence of mashirs. Accused and property brought at Police Station, and FIR was lodged.

3. A charge against the appellant was framed to which he pleaded not guilty and claimed trial.

4. It is further revealed that prosecution examined PW Sikandar Ali ASI at Exh.4, who produced mashirnama of arrest and recovery of vardat at Exh.4-A and B; P.W Walidad SIP at Exh.5, who produced the copies of letters at Exh.5-A and B and chemical report at Exh.5-C; P.W Irshad Hussain Lashari SIP/Complainant at Exh.6, who produced copy of roznamcha at Exh.6-A,6-B and FIR at Exh.6-C; Prosecution closed its side by way of statement at Exh.7.

5. It further reveals that the statement of appellant was recorded under Section 342, Cr.P.C, wherein, he denied all the allegations of prosecution and stated that he has been implicated due to enmity with SIP Aijaz Wassan as his brother Muhammad Rafique had made C.P.No.2355/2010 and Misc. Application No.1670/2010, before the Court, therefore, police officials were annoyed and lodged this false case against him and his relatives and produced photocopies of order and newspaper clippings. The opportunity was given to the appellant to examine himself on oath, but he refused and did not lead any defence.

6. The learned counsel for the appellant has inter-alia contended that the appellant is innocent and has been implicated falsely due to enmity with SIP Aijaz Wassan; false case has been registered and property has been foisted upon him; PWs are interested and the police has not taken any independent witness from the vicinity; the police has violated Section 103, Cr.P.C; there are material contradiction in the testimony of PWs. He has relied upon the case of Nazeer Ahmed v The State (NLR 2008 Criminal 150), Yaseen Gul v State (2011 P.Cr.L.J 345), Muhammad Saeed alias Rashid alias Sheda and another v The State (2011 P.Cr.L.J 454) and Ayoob Masih v The State (NLR 2003 Criminal 01).

7. Conversely, the learned APG appearing for the State has argued that there is no material contradiction in the testimony of the PWs; huge quantity of 4000 Grams Charas was recovered from the appellant at the spot; the appellant has not produced any documentary evidence in order to show that there is enmity between him and complainant Irshad Hussain Lashari; whole property was sent to chemical examiner, the report is positive, therefore, conviction awarded by the learned trial Court is legal and in accordance with the law.

8. Heard the learned counsel for the parties and perused the material available on record.

9. We have examined the evidence, the case law and have considered the contention of learned counsel, In the case of Nazeer Ahmed (supra)it is held:--

“the recovery was affected from the Dera of Saifullah, while accused escaped after scaling over the wall. It was night time incident, the appellant was not shown to be owner of Dera from where the recovery of Charas was allegedly affected, and documents were produced by appellant Nazeer Ahmed, which show that some enmity existed between him and police. Under these circumstances benefit of doubt was extended to the appellant.

In the case of Ayub Masih (supra), it is held:--

“Pursuant to Section 295 PPC, in which the basic principle was discussed with the rule of benefit of doubt, which is described as a golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. This rule is based on that maxim it will be better then ten guilty persons be acquitted rather than one innocent person be convicted”.

In case of Muhammad Saeed alias Rashid alias Sheda and another (supra) it was held that:--

“it is not necessary that there should be a number of circumstances creating doubt in the prosecution case if a simple circumstance creates reasonable doubt in the mind of a man of ordinary prudence about the guilt of an accused, he would be identified to such benefit not as a matter of concession but as a matter of right”.

In the case of Yaseen Gul (supra), it is held:--

“That material contradiction in the statement of PWs would be fatal to prosecution case against the accused under Section 9(c).

9. From the bare perusal of above citations it appears that no doubt it is a settled proposition of law that benefit of doubt must be extended in favour of an accused and single material doubt is sufficient to acquit the accused; but it to be seen that whether same proposition of law is applicable in the case in hand. It is also to be seen whether the impugned judgment is based on wrong appreciation of evidence and instant case is not free from reasonable doubt. We have considered all the aspects of the case, applicability of case law and have minutely examined the evidence available on record.

10. PW Sikander Ali while deposing in examination-in-chief has supported the prosecution case on all the aspects which reflects that appellant was absconder in Crime No.80/2009 under Section 365-A.PPC and Crime No.37/2009 under Section 399, 402, PPC of Police Station, Sorah. The appellant was apprehended when he was available on the western side of the road where from he was arrested and recovery of 4000 Grams Charas was affected.

11. PW Irshad Hussain has also deposed that vide Entry No.07 at 1100 hours they went on patrolling, the appellant was apprehended by them and 8 pieces of Charas were recovered from his exclusive possession, and the same was weighed. Subsequently FIR was lodged.

12. PW Walidad/IO of the case recorded the statements of witnesses interrogated the appellant, sent the samples to Laboratory at Rohri on18.06.2011. During lengthy examination no material contradiction was brought on record nor any major discrepancy found in the prosecution evidence; whole recovered Charas was sent to the chemical examiner on same day; same was reached at Laboratory on next day and by report, it was found that whole property is Charas though counsel for the appellant has taken the plea not only during the trial but also at appeal stage that the appellant was arrested due to enmity with Aijaz Wassan for that the appellant had produced a Cr.Misc.Appln.NO.1670/2010, photographs and order passed on such application. We have also examined all these documents, which apparently filed by one Molvi Muhammad Rafique in the year 2010. Apparently these documents have no nexus with the present case and case pertains to independent proceedings, thus these documents are not helpful to the appellant.

13. Regarding to the contention that no independent witness was associated by the police for that it is a settled proposition of law that the police employees are the competent witnesses like any other independent witness and their testimony can not be discarded merely on the ground that they are the police employees as laid down in the case of Naseer Ahmed v The State (2004 SCMR 1361), Riaz Ahmed v The State (2004 SCMR 988) and Muhammad Haneef v The State (PLD 1996 SC 67).

14. Counsel for the appellant has failed to point out any material contradiction in the prosecution case so as to justify his claim of applicability of golden rule of benefit of doubt. In absence of any material illegality, material contradictions or contradictions in the prosecution case, therefore we are of the considered opinion that the prosecution prima facie has shifted onus upon the appellant successfully thereby conviction awarded to the appellant is very proper and according to law.

15. Regarding to the quantum of sentence, the learned counsel has contended that harsh punishment has been awarded to the appellant. Such contention carries no weight as the case of _murtaza____________________________________, the criteria has been fixed regarding quantity and conviction in Narcotic cases. We have carefully examined such quantum of sentence. On this point the learned trial Judge has rightly convicted the appellant for six years as whole recovered quantity also was examined, is 4 KGs, therefore, six years conviction is not against the spirit of law, which was maintained by the Honourable Supreme Court.

16. Above are the reasons of our short order dated 04.10.2012 whereby this criminal jail appeal was dismissed.

JUDGE.

AKBER.