JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
HYDERABAD.
PRESENT;
MR. JUSTICE IRFAN SAADAT KHAN J.
MR. JUSTICE AFTAB AHMED GORAR J.
DATE JUDGMENT WITH SIGNATURE OF JUDGE
Cr. Appeal No.D-20 of 2006
Appellant Shahid Ali s/o Ali Nawaz Mallah through Mr. Tarique Ahmed Shah Advocate
Respondent The State through Syed Meeral Shah Deputy Prosecutor General Sindh.
Date of hearing 28.02.2013.
Date of decision 28.02.2013.
J U D G M E N T
AFTAB AHMED GORAR J: The appellant was convicted u/s 9-B of Control of Narcotic Substances Act, 1997 and was sentenced to suffer R.I. for 02 years with fine of Rs.20,000/-, in default whereof, to suffer further R.I for two months vide Judgment dated 28.01.2006 passed by learned Special Judge C.N.S Dadu. Benefit of section 382-B Cr.P.C was also extended to the appellant.
2. The prosecution case in a small compass is that on 29.12.2004 at 2200 hours, complainant party on spy information, reached at a road leading towards Shahbaz Colony Dadu near Mounder Octroi Post, Dadu arrested appellant Shahid Ali and recovered 130 grams of charas, in presence of mashirs. Out of recovered charas, 10 grams were separated as sample for sending to the Chemical Examiner. Complainant brought the appellant and property at P.S. and lodged the report.
3. Formal charge against the appellant was framed u/s 9-B of C.N.S Act, 1997 in which he pleaded not guilty and claimed his trial.
4. At the trial, the prosecution examined two witnesses i.e. P.W.1 mashir ASI Ali Asghar and P.W.2 complainant SHO Nazar Muhammad Deshak. The mashir produced mashirnama of arrest and recovery while the complainant produced FIR, report of Chemical Examiner and entry of his departure.
5. Statement of the appellant was recorded u/s 342 Cr.P.C, in which he denied the allegations and claimed his innocence. He, however, neither examined himself on oath nor produced any evidence in his defence.
6. Learned counsel for the appellant argued that the appellant is innocent and has falsely been implicated in the present case. He contended that the prosecution has failed to prove the charge against the appellant but the learned trial court erroneously convicted him. He added that conviction of the appellant is based on contradictory evidences as both the P.Ws have contradicted each other on material points. He submitted that there is more than one month’s delay in sending the sample to the Chemical Examiner and there is no explanation whether during such period, the sample remained in safe custody or not and thus, the prosecution case has become doubtful. Learned counsel further submitted that alleged place of incident is situated in a thickly populated area and no private person was joined by the complainant party inspite of information in advance, which creates doubt in the prosecution case. Learned counsel lastly argued that there is no signature of the appellant on first page of his statement u/s 342 Cr.P.C recorded by the learned trial court, which is flagrant violation of section 342(2) Cr.P.C. He has relied upon the case of Muhammad Achar Machhi Vs. The Sate (2001 P Cr. L J 1762).
7. On the other hand, learned Deputy Prosecutor General supported the impugned Judgment and contended that the prosecution has proved its case beyond shadow of doubt. He further argued that the chemical report is in positive, which has corroborated the ocular testimony, and the appellant has failed to establish any enmity against the complainant and P.W to implicate him falsely.
8. We have heard learned counsel for the parties and examined the record and the decision relied upon carefully.
9. The complainant in his examination in chief deposed that on the day of incident, he left for patrolling during which he received spy information near Circuit House Dadu regarding availability of a person having contraband charas, on the road leading to Shahbaz Colony Dadu. He further deposed that he alongwith police party proceeded towards place of incident and reached there, apprehended the appellant, recovered charas, cash Rs.25/-, prepared mashirnama and took the accused and property to P.S. and registered the case.
10. From careful examination of the evidence of both the witnesses, we found material contradictions. The complainant deposed that during search of the accused, a polythene shopper containing pieces of charas was recovered from his side pocket and cash Rs.25/- was recovered from front side pocket of his shirt while mashir says that charas and cash amount were recovered from side pocket of the shirt of the accused. The complainant further deposed that the charas was weighed at the spot, which became 130 grams while mashir deposed that he alone got weighed the charas from nearby shop. The complainant deposed that charas recovered from the appellant was in shape of pieces but the mashirnama and FIR did not disclose the same. The complainant further stated in his cross-examination that investigation kit was with them at the time of leaving police station but neither entry nor FIR or mashirnama disclosed that investigation kit was with the complainant party, when they left the police station.
11. In view of the abovementioned contradictions of both the witnesses, the recovery of alleged charas from the possession of the appellant has become doubtful. The prosecution has failed to produce any strong or unimpeachable evidence to prove the charge against the appellant beyond shadow of doubt.
12. We have also examined the Chemical Examiner’s report, which reflects that the sample was sent on 28.02.2005 and it was received by the Chemical Examiner on 01.03.2005 and the report was prepared and signed on 04.04.2005 and dispatched on 06.04.2005. There is no explanation available on record as to whether the samples of charas remained in safe custody for more than 02 months at the police station, and for about one month with Chemical examiner.
In the case of Qayum Vs. The State (2005 P Cr. L J 2034)), there was six days delay in sending the samples, 22 days occurred in checking the same and 15 days consumed in receiving back the said samples and such long delay was not explained. It was observed by the bench that said delays made the case against accused doubtful to the extent that it had not been proved by the prosecution that the samples of contraband charas were safe for six days in police station and for 22 days in Laboratory before report and accused was acquitted. In the present also there is no explanation regarding delay in sending the samples, checking, preparation of report and dispatching of the same, therefore, in view of the above case, present case against the appellant has become doubtful.
In the case of Muhammad Achar Machhi Vs. The State (supra), it was held that no signature was found on the first page of statement of accused recorded u/s 342 Cr.P.C, which was flagrant violation of the mandatory provisions of section 342(2) Cr.P.C and in such case accused was acquitted. In the present case also admittedly there is no signature of the appellant on first page of his statement u/s 342 Cr. P.C, therefore, this case supports the case of the appellant.
13. In view of the contradictions and discrepancies discussed above, we are of the view that the prosecution has failed to prove charge against the appellant beyond shadow of doubt. Accordingly, we allow this appeal, set aside the impugned Judgment of the learned trial court and acquit the appellant. Since the appellant is already on bail, his bail bonds stand cancelled, and surety discharged.
14. Vide our short order dated 28.02.2013, appeal was allowed and above are the reasons there of.
JUDGE
JUDGE
A.K