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-28 of 2005

Appellant Abdul Sattar s/o Umar Solangi through Syed Tarique Ahmed Shah Advocate

Respondent The State through Syed Meeral Shah Deputy Prosecutor General Sindh.

Date of hearing 26.02.2013.

Date of decision 26.02.2013.

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 03 years with fine of Rs.10,000/-, in default whereof, to suffer further R.I for two months vide Judgment dated 10.03.2005 passed by learned Special Judge C.N.S Dadu. Benefit of section 382-B Cr.P.C was extended to the appellant.

2. The prosecution case in a small compass is that on 18.09.2001 at 8.00 p.m complainant Muhammad Nawaz AETO alongwith his subordinate staff, on spy information, reached in the street situated at Buth Mohalla Dadu Town. They arrested the appellant Shahid Ali and recovered 220 grams of charas, in presence of mashirs. Complainant brought the appellant and property at P.S. and lodged the present 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 complainant Muhammad Nawaz at Ex.6. He produced mashirnama of arrest and recovery at Ex., FIR at Ex.7-B and chemical report at Ex.7-C. P.W.2 mashir Zahid Hussain was examined at Ex.10. Prosecution then closed its side.

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 by the complainant party. 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 the complainant did not produce his departure entry, therefore, without such proof, the very departure of the complainant party is doubtful. He further contended that as per the chemical report, the material was dispatched on 19.09.2001 but the same was received by the Chemical Examiner on 22.09.2001 through complainant and it was sent back on 09.01.2002. There is no explanation whether case property remained in safe custody or not for 04 days at Police station and for about 3 ½ months with Chemical Examiner, thus, the prosecution case has become doubtful. Learned counsel further submitted that complainant himself has investigated the case and despite of the fact that alleged place of incident is situated in a thickly populated area, no private person was joined by the complainant party inspite of information in advance, which also create doubt in the prosecution case. He further argued that no 161 Cr.P.C statements of witnesses were recorded, therefore, their presence at the place of incident at the relevant time has become doubtful. He has relied upon the case of Nazeer Ahmed Vs. The State (PLD 2009 Karachi 191).

7. On the other hand, learned Deputy Prosecutor General supported the impugned Judgment and contended that the prosecution has proved its case beyond any 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. From careful examination of the evidence of both the P.Ws, we found material contradictions between them. The complainant in his examination in chief stated that when they reached at the place of incident, they saw that accused was standing in the street, whom he inquired about his whereabouts while the mashir in his examination in chief stated that accused was sitting in the street, whom the complainant called and inquired about his name and whereabouts. The complainant deposed that accused was standing in the street while mashir stated that he was selling the charas. Both the witnesses have deposed that they went to the place of incident in a car of friend of the complainant and came back in the said car. Neither mashirnama nor the FIR disclosed that the complainant party left Police Station in a car.

10. It is important to note here that in order to prove their movement from the police station; the complainant had to produce entry under which he alongwith police party left Police station on spy information and recovered the charas from the appellant. In absence of such entry, the departure/ movement of the complainant party from the Police Station towards place of incident becomes doubtful. Since movement of the complainant party remained disproved/doubtful, subsequent event i.e. recovery of contraband charas from the possession of the appellant has also become doubtful.

11. We have also examined the Chemical Examiner’s report, which reflects that the case property was sent on 19.09.2001 and it was received by the Chemical Examiner on 22.09.2001 through complainant himself and the report was prepared and signed on 26.12.2001 and dispatched on 09.01.2002. There is no explanation available on record as to whether the case property remained in safe custody for 04 days with the complainant, and for about 3 ½ months 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 had 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 case also there is no explanation regarding receipt of case property to the Chemical examiner after four days, 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 Nazeer Ahmed Vs. The State (PLD 2009 Karachi 191), it was held that Complainant was also Investigating Officer of the case and at the time of recovery from the accused, did not associate private persons as recovery witnesses and only relied upon his subordinates and furthermore he himself registered the complaint and investigated the case. It was held that Investigating Officer was not authorized to exclude independent witnesses nor it did away with principle of producing the best of available evidence. It was further observed that by excluding applicability of S.103 Cr.P.C in narcotic cases, legislature had not conferred any additional or extra sanctity upon officers of police or such other forces. Seizing Officer excluded independent persons to act as witnesses of arrest and recovery and chose two of his subordinates to act as attesting witnesses, who too did not support the prosecution case. Seizing Officer himself acted as investigating officer and the trial court finding him innocent acquitted one of the two persons sent for trial. High court declined to maintain conviction and sentence awarded to accused by Trial Court, as accused was entitled to benefit of doubt.

In the above case, point of non recording statements of witnesses u/s 161 Cr.P.C was also discussed. It was held that recovery witness was required to be examined on the same day so that one might not be able to know answers given by others in cross-examination. In absence of statement under S.161 Cr.P.C of recovery witness and recording of his evidence much later after recording complainant’s evidence, accused was deprived to some extent. No weight could be given to evidence of such witness particularly when he was subordinate of complainant.

In the case of Ali Hassan Vs. The State (PLD 2001 Karachi 369), it has been held that exception of applicability of S.103 Cr.P.C in cases under the Control of Narcotic Substances Act, 1997 as provided under S.25 of the said Act, could give a legal technical support to the admissibility of the evidence of official witnesses but it would not make them reliable. It was further held that man could not be made moral through legislation. Evidence of such official witnesses should always be examined keeping in view the fact that in a society with the level of moral values that unfortunately prevails, a subordinate official is seldom expected to tell the truth in deviation of express or implied instructions of his superior. In said case, out of eight Excise officials in company of complainant at the time of incident, Investigating officer had mentioned only two witnesses i.e. I.O. and another witness were examined. It was held that presumption would be that prosecution witnesses who were not examined would not have supported the prosecution case. While extending benefit of doubt, accused was acquitted. In the present case though the complainant and mashir stated in their evidence that they asked 4/5 persons gathered at the scene to witness the recovery but they refused but same is not mentioned in the mashirnama or FIR, therefore, same appears to be an afterthought. The complainant was in company of four other officials but only one of them has been examined. In view of the observation in respect of non examining the other witnesses, the case of the prosecution becomes doubtful.

In the case of Muhammad Akram Khan Vs. The State(1996 P Cr. L J 843), it was observed that sample parcel of heroin allegedly recovered from the accused remained in the personal custody of the complainant police officer for one day and no evidence was brought on the record to show that it was not tampered with which had made the whole affairs doubtful. It was further observed that question about enmity of the complainant with the accused asked from every witness although was denied, yet such was the contention of the accused from the very beginning and the authenticity of the allegations of enmity could not, therefore, be ignored and in such circumstances accused was acquitted. In the present case also the case property was in personal custody of the complainant for about four days and there was no explanation that same was not tampered with. Further the appellant took the plea that he was falsely implicated due to enmity with some relative of the mashir Zahid, and at his instance he has been implicated. Both the witnesses though have denied such questions but it was the defence of the appellant from the very beginning. The case on this account also appears to be doubtful.

12. 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 any 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.

13. Vide our short order dated 26.02.2013, appeal was allowed and above are the reasons there of.

JUDGE

A.K