JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH CIRCUIT COURT HYDERABAD

Cr. Appeal No.D-90 of 2013

Appellant                               :           Muhammad Qasim through                 

Mr. Ishrat Ali Lohar advocate.

Respondent                           :           State through Mr. Shahid Ahmed

Shaikh Asstt. P.G. Sindh.

Date of hearing                     :         13.03.2014.

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SHAHNWAZ TARIQ J.- Through instant appeal, the appellant Muhammad Qasim has assailed the Judgment dated: 06.11.2013 passed by learned Special Judge for CNS Cases, Sanghar, in Special Case No.25 of 2013, arising out of FIR No.38 /2013 of P.S. Sinjhoro, U/S 9(c) of CNS Act, 1997, whereby he was convicted u/s 9(c) of CNS Act, 1997, to undergo R.I. for 07 years with fine of Rs.100,000/- and in default to suffer SI for six months, however, the appellant was also extended benefit under section 382(B) Cr.P.C.

2.         Precisely, the facts of prosecution case are that SIP Zahid Hussain Brohi, SHO Police Station Sinjhoro lodged FIR bearing No. 38/2013, at Police Station Sinjhoro, narrating that on 14.03.2013, he along with his sub-ordinates staff left Police Station for patrolling vide roznamcha entry No: 30 at 0500 hours. During patrolling, he received spy information at Raowtiyani check post that one person having black colour plastic shopping bag of charas, is waiting for bus at the curve of Raowtiyani of Dim Wah. On receiving such information, they reached at pointed place at 0615 hours, where they saw that one person standing at the bridge towards northern side having black colour plastic shopping bag, who looking police mobile, started walking fastly towards northern side, but he apprehended him and recovered black colour plastic shopping bag, which was containing 15 big and small pieces of charas and during his personal search three currency notes of Rs:100/- total Rs:300/- from side pocket of his shirt were recovered. On enquiry, who disclosed his name as Mohammad Qasim s/o Moriyo Kerio R/o Raowtiyani, Taluka Sinjhoro. The complainant weighed the recoverd cahras, which became seven kilograms. Small quantity was separated from each piece total weighing 10 grams for chemical examiner and same was sealed separately. Due to non-availability of public mashir, mashirnama of arrest and recovery was prepared in presence of mashirs H.C Muharram Ali and HC Mehboob Ali. Thereafter accused and property were brought at P.S, where complainant lodged FIR accordingly.   

3.         After completing the usual investigation, police submitted the challan against the above named accused before the trial Court.

4.         During the course of the trial prosecution examined following witnesses:-

i) PW 1 complainant SIP Zahid Hussain Brohi at Ex:04, who produced mashirnama of arrest and recovery at Ex:04-A, departure and arrival entries No:30 and 04 at Ex:04-B, FIR at Ex:04-C,

ii) P.W-02 Mashir HC Muharram Ali at Ex:05, who produced mashirnama of place of Wardat at Ex:05-A and departure and arrival entries No:13 and 16 at Ex:05-B,

iii) P.W-03 I.O SIP Muhammad Javed Pathan at Ex:06, who produced  chemical examiner report at Ex:06-A and attested copy of letter addressed to chemical examiner at Ex:06-B.

Learned ADPP closed the side of prosecution on behalf of the State vide  statement at Ex:07.

5.         Statement of accused u/s 342 Cr.P.C was recorded at Ex.08, wherein he has denied the allegations of prosecution and stated that he has been falsely involved in this case due to enmity, and claimed to be innocent. Property has been foisted upon him by SHO and DSP. However, he did not examine himself on oath, but lead the evidence of following defence witnesses:-

i) D.W-01 Mst: Sodhi appellant at Ex: 09,

ii) D.W-02 Oladi at Ex:10, who produced attested copy of order dated 08.04.2013 at Ex: 10-A, attested copy of FIR bearing Crime No. 49/2013, P.S Sinjhoro at Ex:10-B, regarding dacoity in his house.

iii) D.W-03 DSP Raja Bisharat Ali at Ex:11, who conducted the enquiry of the crime upon application moved by the wife of the appellant to DIG Police.

iv) D.W-04 PDSP Rana Iqbal Javed at Ex:12, who produced attested copy of letter No:CC/1082/13, dated: 20.05.2013 issued by DIG Mirpurkhas addressed to SSP Sanghar at Ex:12-A, attested copy of letter DSPO/2031 Sinjhoro dated 24.05.2013 issued by SDPO Sanghar addressed to SSP Sanghar annex by enquiry report and statements of Mst: Sodhi, Oladi, PC Muharram, PC. Mehboob Ali, DPC Rustam Ali, PC Peer Dino and SHO Zahid Brohi at Ex:12-B, attested copy of order of SSP Sanghar addressed to SDPO Sinjhoro at Ex:12-C bearing No:CC/219 dated 21.05.2013. Learned counsel for accused closed the side of evidence by filing statement at Ex:13.

6.         After hearing arguments of the learned counsel for the appellant/ accused and learned ADPP, the learned trial court convicted the appellant vide impugned judgment.

7.         Learned counsel for the appellant has contended that appellant is innocent and has falsely been implicated by the complainant SIP Zahid Hussain Brohi who is annoyed with the appellant and foisted charas due to enmity. He further contended that charge framed against the appellant is defective, therefore, conviction on this score is illegal.      Learned counsel further submitted that the sample of alleged recovered charas was sent to chemical examiner after one week and prosecution has failed to explain the delay satisfactorily. PWs have deposed in contradictory manner as such their statements could not be believed. He further contended that on application of wife of the appellant addressed to the DIG Police, case was re-investigated by DSP Raja Bisharat Ali and he had found the appellant to be innocent and submitted his report to high ups. He further contended that DW-2 Oaldi was compelled to lodge FIR of dacoity against the appellant when he approached the complainant SHO SIP Zahid Hussain for lodging of FIR regarding commission of dacoity in his house. The learned trial court has not discussed the evidence of defence witnesses. The learned trial court has failed to examine the record properly, and instead of extending benefit of doubt, has convicted the appellant who has been victimized by the SHO.  

9.         Learned DPG has opposed the submissions made by the learned counsel for appellant, and has contended that appellant was apprehended by the police and recovered 7 Kgs charas from the possession of the appellant and the chemical examiner has confirmed the recover substance to be the charas. He further submitted that prosecution witnesses have fully supported the prosecution story and implicated the appellant regarding the alleged recovery of charas. DWs have failed to create any doubt about the recovery of charas from the appellant, therefore, appeal is liable to be dismissed.

10.       We have heard arguments advanced by the learned counsel for the appellant, learned APG for the State and examined the availavle record with their assistance.

11.       Perusal of record reflects that on 14.3.2013, at 0500 hours, complainant SHO PW-1 left police station along with sub-ordinate staff for patrolling. During patrolling, when he reached at Raowtiyani police check post, received information that one person having black polythene bag at Dim Mori, is waiting for passenger bus. Police reached at pointed place and saw one person available at the northern side of Dim Mori, who seeing the police started walking fastly towards the eastern side. Police encircled and apprehended him and recovered polythene bag which was containing 15 big and small pieces of charas weighing 7 Kgs. Small pieces were separated from the recovered charas weighing total 10 grms, was sealed in one packet for chemical examination. However, there is no detail or description that which sample was separated from which piece of recovered charas.          

12.       During the course of evidence PW-1 complainant has not produced the black polythene bag which was containing charas before the court. PWs have deposed different places of patrolling in their evidence. Admittedly, the alleged recovery of charas was made on 14.3.2013 at 0615 hours and it was sent for chemical examination on 21.03.2013, but Investigation Officer has failed to furnish plausible explanation for the un explained delay to satisfy that during the said period the recovered property was in safe custody, therefore, this delay has also created doubt.

13.       We would like to refer the case of Irfan Ali Bhayo v. The State, (2008 YLR 37, Karchi), wherein it has held that samples were received at laboratory after delay of 8 days from recovery of narcotics. No explanation was available on the record to justify such lapse on the part of prosecution, conviction of accused could not be sustained as case of prosecution was full of doubts.

14.       We would also refer the case of Umer Rehman Versus The State, (PLD 2009 Karachi 284), wherein it has held that contraband charas was received in chemical laboratory after eight days of its recovery and report was prepared after one month and twenty days and no explanation was offered by the prosecution for such considerable delay in sending the contraband charas to the laboratory, such a delay was opposed to the law i.e the Control of Narcotic Substance (Government Analysts) Rules 2001. Difference existed with regard to quantity of weight of charas between prosecution and report of chemical examiner, duty of prosecution was to prove its case beyond and reasonable doubt but prosecution having failed to prove its case against accused, accordingly accused was acquitted by extending benefit of doubt.

15.       Admittedly, in present case the sample of recovered substance was sent to the chemical examiner with unexplained delay of one week and there is difference of weight as allegedly complainant separated 10 grams charas for chemical examination while as per chemical examination report dated 28.03.2013 the net weight of substance was 9 grams.

16.       For appropriate conclusion, we would also like to discuss the relevant portions of evidence of prosecution witnesses as well as defence witnesses as under:-

(i) PW-1 complainant SHO Zahid Hussain Brohi has stated that on 14-03-2013, he along with sub-ordinate staff left for patrolling at 0500 hours, and in the meantime, he received information at Rawatiyani police check post that one person with black polythene bag, was available at Dim-Mori, police rushed to the pointed place at 0615 hours, where he saw one person on the northern side of Dim-Mori, who on seeing the police started walking quickly towards the eastern side. They encircled and arrested him and one polythene bag containing 15 small pieces of charas, was recovered. There is no population around the Rawatiyani check post but same situated on road. He took 20 minutes in arrest of accused and sealing of charas before writing mashirnama. He admitted that mashirnama was written at 0615 hours and time of arrival of police at the spot so also time of the search and arrest of the accused was also mentioned at 0615 hours. After arriving at PS, firstly he made arrival entry in roznamcha and thereafter FIR was lodged. He saw copy of arrival entry No.4 as Ex:4-B and admitted that he has written FIR No.38 of 2013 in said entry. Nobody was on duty at police check post Rawatiyani. First time he saw the accused from the distance 20-30 paces. After parking the vehicle, he arrested accused after covering the distance of 10/20 paces. He himself searched accused. He admitted that on 09-04-2013, FIR of dacoity was lodged at PS by one Oladi. He admitted that on application of Mst. Sodhi wife of accused, Honourable Supreme Court had ordered for inquiry. He is unaware that SSP Sanghar by order dated 24-05-2013 had entrusted inquiry to DSP Raja Basharat Ali Janjhua. He is unaware that said DSP had come at Police Station Sinjhoro where PWs appeared before him and inquiry officer on Holy Quran recorded their statements, wherein all PWs have shown their ignorance about the place of incident and recovery of charas.

(ii) PW-2 mashir H.C Muharram Ali has stated that at 0610 hours SHO received information on mobile phone. Place of information was 400/500 meters away from the place of arrest and recovery. The place of recovery is a busy road. SHO had tried to associate private person but nobody was available.

(iii) PW-3 SIP Muhammad Javed, Investigating Officer has stated that place of arrest is 8/9 kilometers away from PS Sinjhoro. Place of recovery is a busy road. On 21-03-2013, he sent sample of recovered property to the Chemical Examiner. He admitted that the letter addressed to the Chemical Examiner was issued by complainant SHO Zahid Hussain. He admitted that report of Chemical Examiner also revealed that SHO PS Sinjhoro had sent the property to Chemical Examiner. He admitted that as per Chemical Examiner’s report the grass weight of parcel was 13 grams and the net weight of substance was 09 grams. He admitted that wife of accused had sent applications to higher authorities upon which inquiry was ordered. He admitted that inquiry was conducted by DSP Raja Basharat.

(iv) DW-1 Mst. Sodhi (Ex:09) has stated that she sent applications to the higher authorities. SSP Sanghar appointed DSP Raja Basharat to hold inquiry and such inquiry was held where PWs of present case was called and their statements were recorded on Holy Quran, and they had shown their ignorance about the arrest and recovery of present appellant.

(v) DW-2 Oladi (Ex: 10) has stated that on 13-02-2013 at 1045 p.m., a dacoity was committed in his house. He went to PS Sinjhoro for lodging FIR which was not registered, therefore, he filed miscellaneous application before the Court for lodging of FIR which was allowed. SHO Zahid Brohi asked him to lodge FIR against appellant Qassim Kerio. DSP Raja Basharat recorded his statement and he had that complainant SHO Zahid Hussain Brohi insisted him to involve appellant in case of robbery.

(vi) DW-2 DSP Raja Basharat Ali (Ex:11) has stated that on 16-05-2013, SSP Sanghar had directed him to hold an inquiry regarding the application of Mst. Sodhi and submit such report. He received such order in writing and called PWs and recorded their statements on oath. The mashirs disclosed in their statements that at the time of arrest of accused they were not present. He recorded their respective statements and obtained their signatures whereupon. He also recorded the statement of Mst. Sodhi wife of appellant and one Oladi. He submitted his inquiry report to SSP Sanghar. According to his finding, the alleged offence was not proved against the appellant.

(vii) DW-4 PDSP Rana Iqbal Javed (Ex: 12) has produced attested copies of letter No.CC/1082/13 dated 20-05-2013 issued by DIG Mirpurkhas addressed to SSP, Sanghar at Ex: 12-A. He produced attested copy of letter DSPO/2031/2013 Sinjhoro dated 24-05-2013 issued by SDPO Sanghar addressed to SSP Sanghar annexed by enquiry report and statements of Mst. Sodhi, Oladi, P.C Muharram, P.C Mehbood Ali, DPC Rustam Ali, P.C Peer Din and SHO Zahid Brohi at Ex:12-B. He produced attested copy of order of SSP Sanghar addressed to SDPO Sinjhoro at Ex:12-C bearing No.CC/219 dated 21-05-2013 on the back side of annexure “A”.

17.       Perusal of the evidence of PWs as well as DWs, it has reflected that PWs in their statements have deposed in contradictory manner regarding their route of patrolling, mode of arrest of accused. Admittedly, no person was on duty at police post Rawatiyani and even none was available on road. PW-1 has stated that after return at police station firstly he made entry in roznamcha report and then lodged FIR, but amazingly the crime number is mentioned in said entry and PW-1 has failed to explain such position. The alleged narcotic substance was recovered on 14-03-2013 at 0615 hours but same was sent to the Chemical Examiner on 2103.2013, after one week and in this regard, no plausible explanation has been furnished. Amazingly, the information was received at 0610 hours about 400/500 meters away from the pointed place, then police reached at the spot and parked their vehicle, and also chased the accused for 25 paces and apprehended the accused at 0615 hours, search was made at same time, mashirnama was prepared at same time, which shows that statements of PWs are not inspiring confidence.

18.       PW-1 complainant SIP Zahid Hussain Brohi has admitted that Mst. Sodhi wife of the appellant had moved applications and Honourable Supreme Court had ordered for inquiry into the matter. DW-4 PDSP Sanghar had produced all the relevant documents issued by the SSP Sanghar to DSP Raja Basharat for conducting inquiry into the matter. DW-3 DSP Raja Basharat has stated that he conducted inquiry into the matter under written order of SSP and recorded statements of PWs on oath and PWs had denied the fact of recovery of charas from the appellant and he had submitted such report to SSP Sanghar.

19.       The peculiar facts and circumstances discussed supra have created serious doubt regarding the truthiness of prosecution story, and it is prime duty of the prosecution to establish its case beyond reasonable doubt, but in present case defence has succeeded to create a series of doubts. It is well settled law that a slightest iota of doubt is sufficient to acquit the accused.

20.       In the wake of forgoing reasons, we are of the considered view that serious doubts have been created in the prosecution story, therefore, the defence has succeeded to make out its case for extension of benefit of doubt. Consequently, instant criminal appeal filed by the appellant Muhammad Qasim s/o Morio Kerio stands allowed and impugned judgment dated: 06-11-2013 passed by the learned Special Judge for CNS cases, Sanghar is set aside and appellant is acquitted from the charge. The appellant shall be released forthwith if he is not required in any other case.

21.       These are the reasons of the short order passed by this Court on 13-03-2014, whereby instant criminal appeal was allowed.

JUDGE

JUDGE