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-57 of 2005

 

Appellant               Qadir Bakhsh alias Qadoo s/o Manik through

                             Mr. Shamsuddin Khushik  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-C of Control of Narcotic Substances Act, 1997 and was sentenced to suffer R.I. for 05 years with fine of Rs.25,000/-, in default whereof, to suffer further R.I for six months vide Judgment dated 05.04.2005 passed by learned Special Judge C.N.S Dadu. The appellant was given benefit of section 382-B Cr.P.C.

2.       The prosecution case in a small compass is that on 26.06.2004 at 1045 hours, complainant party apprehended the appellant from Pir Badaruddin graveyard Johi District Dadu alongwith a plastic bag containing 12 small and big pieces of charas, weighing 1050 grams.

3.       Formal charge against the appellant was framed u/s 9-C 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 HC Aijaz Ali Charan at Ex.4. He produced roznamcha entry at Ex.4/A and memo of arrest and recovery at Ex.4/B. P.W.2 SHO Fazal Haque Chandio was examined at Ex.5. He produced FIR 5/A and report of Chemical Examiner at Ex.5/B. Thereafter prosecution 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 impugned Judgment is opposed to law, facts and equity. He submitted that learned trial court did not examine the evidences available on record properly and ignored material contradictions therein. He added that the contradictions in the evidence of the P.Ws have made entire prosecution case doubtful and it is well settled law that if a single circumstance creates doubt in the prudent mind, its benefit must go to the accused. He further contended that SHO and mashir both stated that after recovery of chars from the accused at place of incident, mashirnama was prepared but charas was weighed at a shop at Makhdoom Bilawal Bus Stand, which is at the distance of 03 Kilometers from the place of incident. He further contended that as per mashirnama and FIR, cash Rs.165/- were recovered from the possession of the appellant but same were not produced before the trial court nor shown to the witnesses during their evidence. He submitted that mashir in his examination in chief stated that SHO got the charas weighed from a shop which became 1012 grams whereas I. O disclosed the same to be 1050 grams. He further pointed out the contradictions and submitted that the I.O. stated that accused was standing at the distance of about 25-50 paces from graveyard whereas mashir stated that accused was standing about 200 yards away from graveyard when he was arrested. He argued that mashirnama is silent regarding weight of the alleged recovered charas whereas FIR discloses the weight of alleged charas as 1050 grams. He further argued that chemical report also controverted the weight of alleged charas as it shows the weight of charas received by them as 990 grams whereas the complainant stated that it was 1050 grams while mashir stated that it was 1012 grams. Learned counsel submitted that in view of the above contradictions, case of the prosecution has become doubtful but the learned trial court erroneously convicted the appellant.

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.

9.       From careful examination of the evidences of both the witnesses, we found material contradictions. The mashir in his examination in chief stated that on the day of incident during patrolling, they reached at Pir Badaruddin graveyard and found the appellant having blue shopping bag. He further deposed that they recovered shopping bag from the appellant in which 12 pieces of charas were lying and such mashirnama was prepared at the spot. He further stated that they brought the accused and recovered charas at Makhdoom Bilawal Bus Stand, where SHO got the charas weighed from a shop and it became 1012 grams. Complainant SHO Fazul Haq Chandio in his deposition stated that he arrested the appellant at the place of incident, prepared mashirnama and sealed the charas on the spot. He further deposed that he got the charas weighed from a shop at Makhdoom Bilawal Bus Stand, which became 1050 grams. The complainant further deposed that he recovered cash Rs.165/- from the possession of the appellant while mashir did not say anything about recovery of the amount from the appellant.

10.     In his cross examination, the mashir HC Aijaz Ali stated that “it is incorrect to suggest that we had left P.S. in order to arrest proclaimed offenders but we have left P.S. for patrolling only” while the FIR shows that the complainant party left police station for the purpose of arrest of proclaimed offenders. The mashir stated that they saw the accused standing at the distance of 200 yards from the graveyard while the complainant stated that accused was standing at the distance of 25-50 paces from the graveyard. The mashir stated that charas was sealed at the shop of Makhdoom Bilawal Bus Stand while the complainant stated that it was sealed at the spot.

11.     The above noted contradictions of both the witnesses have made the recovery of alleged charas from the possession of the appellant highly doubtful. The mashirnama allegedly prepared at the place of incident is a basic document upon which the entire prosecution case depends, does not show the exact recovery of alleged charas from the possession of appellant. In the mashirnama only recovery of 12 pieces of charas has been shown and such document could not be used against the appellant to convict him u/s 9-C of C.N.S Act. In our view, 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 looked into the Chemical Examiner’s report, which reflects that the sample was sent on 30.06.2004 and it was received by the Chemical Examiner on 01.07.2004 and the report was prepared and signed on 11.09.2004 and dispatched on 13.09.2004. There is no explanation available on record as to whether the charas remained in safe custody for more than 04 days 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.

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