IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No. D- 22 of 2012.

Present:

Mr. Justice Sadiq Hussain Bhatti.

Mr. Justice Abdul Maalik Gaddi.

Deedar Ali Jatoi. ………….Appellant.

Versus

The State. ...…..…Respondent.

Mr. Ghulam Ali A. Samtio, Advocate for the appellant.

Mr. Imtiaz Ali Jalbani, A.P.G.

Date of hearing: 19.11.2014.

Date of Judgment: 19.11.2014.

J u d g m e n t

Abdul Maalik Gaddi, J-. Through this criminal appeal, judgment dated 25.2.2012, passed by learned Special Judge for CNS, Dadu, in Special Narcotic Case No.194/2009, has been challenged by the appellant Deedar Ali son of Rasool Bux, whereby the appellant has been convicted and sentenced to suffer imprisonment for three years R.I and to pay fine of Rs.30,000/- (Thirty thousands), and in case of default of payment of fine, it was ordered that he shall undergo simple imprisonment for six months more.

Brief facts of the prosecution case as disclosed in the F.I.R are that on 11.3.2009, at about 1600 hours, complainant SIP Muhammad Sadique lodged F.I.R at Police station Thariri Mohabbat, alleging therein that he is posted as SHO at P.S Thariri Mohabbat. On same date, he alongwith staff ASI Muhammad Afzal Solangi, P.C Ali Nawaz, P.C Abdul Ghafoor with arms and ammunitions left police station in police mobile with driver P.C Aijaz Ali for patrolling vide entry No.8, at 1400 hours, while patrolling when reached at Sehwani Chowk Radhan station they received spy information that one person alongwith charas is standing at Sim Shaakh on link road leading from Salah Jatoi to Jalal Jatoi. On receipt of such information the police party proceeded there and when reached at the pointed place, it was about 1500 hours they saw one person was standing at Sim Shaakh who on seeing police party tried to run away but the police caught hold him and enquired about his name and address, who disclosed his name Deedar Ali son of Rasool Bux Jatoi, resident of Jalal Jatoi, Taluka Mehar, who arrested under Section 55 Cr.P.C and his personal search was conducted, during which cash Rs.50/- from front pocket and one plastic shopper from his fold of shalwar which was containing three patties of charas. The said charas was weighed through ASI Muhammad Afzal which became 1250 grams, out of which ten grams was separated for chemical examiner and remaining was sealed at the spot. The complainant then prepared mashirnama of arrest and recovery in presence of mashirs ASI Muhammad Afzal Solangi and PC Ali Nawaz and then he brought the arrested accused and recovered property at police station and lodged F.I.R on behalf of the State.

A formal charge was framed by the trial Court against appellant on 02.6.2010, at Ex.3, to which he pleaded not guilty vide plea at Ex.4, and claimed to be tried.

In order to establish its case, the prosecution examined P.W -1 SHO Muhammad Sadique Solangi (Complainant), at Ex.5, he produced departure entry No.8, Memo of arrest and recovery, F.I.R at Ex.5-A to 5-C, respectively. P.W-2 S.I.O Shaman Ali Khoso (Investigating officer), at Ex.6 who produced chemical report at Ex.6-A, and P.W-3 SHO Muhammad Afzal Solangi (mashir) at Ex.7. Thereafter, side of the prosecution was closed vide statement at Ex.8.

The statement of the accused under Section 342 Cr.P.C was recorded at Ex.9, in which he has denied the allegations leveled by the prosecution and stated that alleged charas has been foisted upon him. All the prosecution witnesses are police officials and subordinates to the complainant, hence interested and set up; he is innocent, the police has lodged false F.I.R against the accused falsely, hence he pray for justice. He has not examined himself on oath or any witness in his defence.

Mr. Ghulam Ali A. Samtio, learned counsel for the appellant contended that appellant is innocent and has been falsely implicated in this case by police due to enmity with local Zamindar. Nothing has been recovered from his possession. The alleged charas has been foisted upon him though the police party reached at the place of incident on receipt of spy information but no any independent person has been associated to act as mashir to witness the event. Per learned counsel that three big pieces of charas weighing 1250 grams were allegedly recovered from the possession of appellant on 11.3.2009, but only ten grams charas was sent for chemical examination on 27.3.2010 after one year and eleven days, such delay in sending parcel to chemical examiner has not been explained. IT is also nowhere mentioned that from which piece of the charas the sample was taken as such it cannot be said that all recovered material was contraband narcotic. Per learned counsel the whole case of prosecution based on evidence of police officials, which is not supported by any independent corroboration and the same is also contradictory on material points, as such the same cannot be safely relied upon. He has prayed for acquittal of the appellant.

Learned A.P.G. in view of the above factual and legal aspect of the case as argued by the learned counsel for the appellant has not supported the impugned judgment.

Heard the learned counsel for the parties and perused the record.

We have come to the conclusion that prosecution has failed to prove its case against the appellant for several reasons. Admittedly, this was the case of spy information. Complainant/ SHO has sufficient time to call the private persons for making them as mashir in the case. Omission has not been explained by the prosecution to the satisfaction of the Court. No doubt the evidence of police officials is as good as other witness, but when whole case of prosecution based on evidence of police officials it requires some independent corroboration on material particulars; particularly in the circumstances when incident has taken place in a public area. Here, in this case admittedly complainant received spy information about the accused at Sehwani road Radhan stop, which was a busy area, yet they did not associate with them any private person of the locality to witness the event. Not only this, place of the alleged arrest of the accused has been shown at link road village Salah Jatoi to Jalal Jatoi at Sim minor bridge, which is admittedly a thoroughfare for public and transport, but no reason and effort has been assigned by prosecution for non joining the private person of the locality to witness the event. This aspect of the case create doubt in the prosecution case.

The evidence of complainant is contradictory to the evidence of mashir on so many material points. Complainant in his evidence has stated that during patrolling police party stayed for fifteen minutes at police post Radhan, but on this point mashir Muhammad Afzal has contradicted him and has stated that police party did not stay anywhere. Another material contradiction has also been brought to the notice of this Court that complainant in his evidence has stated that weighing scale was of “Pital” but on this point mashir though available with the complainant, stated that he does not know the kind of weight used in weighing the charas. Complainant and mashir when asked in evidence that who send the sample to chemical examiner, both have claimed that they had sent the sample to the chemical examiner. It means that anyone of them either suppressing the facts or telling a lie on this point. When learned A.P.G. was confronted with such material contradiction in the evidence, no satisfactory explanation was furnished.

As per prosecution case, three big pieces of charas weighing 1250 grams were recovered from the possession of appellant but only ten gram charas was sent for chemical examination and it is also nowhere mentioned that from which piece of charas the sample was taken, as such it cannot be said that all recovered material was contraband narcotics. This aspect of the case also create doubt in the prosecution case.

As regard to the positive report is concerned, situation is alarming. According to prosecution charas was allegedly recovered from the possession of accused on 11.3.2009, but out of 1250 grams only 10 grams were sent to the chemical examiner on 27.3.2010, after about one year. Delay about one year in sending the sample parcel to the chemical examiner has not been explained. Even for the satisfaction of the Court it has not been brought on record that it was in safe custody of the investigating officer of the case and there was no chance of tampering. Prosecution has also failed to examine the police constable who had taken sample to the chemical examiner so that he could have been subjected to cross examination on the point, as to in whose custody the sealed parcel of sample of charas was lying during the intervening period of one year though as per Rule 4 (2) of the Control of Narcotic Substances (Government Analysis) Rules, 2001,this exercise was required to be completed within 72 hours of the recovery, but this has not been done in this case.

The above circumstances in the light of evidence adduced by the prosecution clearly shows that evidence of prosecution witnesses is highly unbelievable, hence cannot be relied upon.

For above stated reasons, we have no hesitation to hold that prosecution failed to prove its case against appellant. Learned trial Court did not appreciate the evidence properly. For the above stated reasons we extend the benefit of doubt to the appellant. Resultantly, appeal is allowed, impugned judgment is set-aside and appellant is acquitted of the charge. The appellant is on bail, his bail stands cancelled and surety discharged.

This appeal was allowed by a short Order dated 19.11.2014, and above are the reasons in support thereof.

Judge