Justice Munib Ahmed Khan
Date of hearing 0 8. 0 2. 2 0 0 7.
Date of Judgment . 0 2. 2 0 0 7.
Appellant: Muhammad Salahuddin in person.
Respondent: The State through Mr. Habib Ahmed, Assistant Advocate General.
MUNIB AHMED KHAN, J.- Through this Criminal Jail Appeal, appellant Muhammad Salahuddin has challenged his conviction and sentence awarded to him by learned Special Court-1, CNS, Karachi, in Special Case No. 265 of 2004, in pursuance to FIR No. 135 of 2005, under section 6/9-C of Control of Narcotic Substances Act 1997.
The factual position leading to the conviction is that ASI Mohammad Nawaz Police Station Mochko, while on patrolling in private Suzuki Pickup alongwith his companion, got spy information that a person having narcotics in his possession, is standing near Qazi General Hospital, near Saeedabad Road, Karachi. He reached the given place at 19:30 hrs and on pointation of spy, the accused was taken in custody, who was holding a plastic cane in his hand. His name was disclosed as Muhammad Salahuddin. The plastic cane was cut opened and 250 rods of charas weighing 2930 grams were recovered. Sample was taken and both, sample and recovered charas, was sealed, as such mshirnama of arrest and recovery was prepared on the spot, in presence of mashirs, namely, Mohammad Arif, Driver of Suzuki Pickup and ASI Mohammad Ayub Bhatti.
Charge was framed in respect to recovery of charas from the accused. He pleaded for trial therefore, the prosecution examined Mohammad Nawaz, who arrested the accused, Mohammad Arif mashir of recover and Investigating Officer, Naseer Ahmed Magsi. The accused got his statement recorded under section 342 Cr.P.C. and pleaded that he has falsely been implicated in this case as he could not pay illegally demanded money of Rs.50,000/- by the police and the charas has been foisted upon him.
The learned trial court, after going through the evidence although pointed out discrepancies in the evidence but declared them as technical and minor and was of the opinion that those discrepancies do not effect the merit of the case, hence he convicted the appellant to suffer RI for 7 years and also imposed fine of Rs.50,000/- and in lieu thereof to undergo 4 months RI.
The appellant has himself argued the case and beside the grounds he has taken in his appeal, he has submitted that he has falsely been involved in this case by the police as he could not pay illegally demanded Rs.50,000/- by the police and in the alternative he has solicited leniency in the matter of sentence.
Since the appeal has been admitted for regular hearing, therefore, it is the duty of the Court to go through the entire material available on record and to check the legality of sentence, to which aspect, Mr. Habib Ahmed, learned Assistant Advocate General has agreed.
In the circumstances, we have analyzed the evidence on record and found that the interception and arrest of the accused in the matter by an ASI was unauthorized under CNS Act 1997 but on the explanation that he intercepted due to urgency with permission from SHO and that the matter was investigated by SIP Nasir Ahmed Magsi, hence we considered this defect is technical and does not effect the prosecution case. However, on sorting out evidence, it appears that according to ASI Mohammad Nawaz, he went to the place of incident alongwith spy and on his pointation accused was arrested at 19:30 hours and sample of charas was taken and the case property was sealed. In cross-examination, he has admitted that spy information was received at 6:45 p.m. and spy did not accompany to the place of incident and that he found the accused at 7:00 p.m, standing on bus stop. He has further admitted that plastic cane, from which the charas was recovered, was of blue colour and that plastic cane produced in court was of green colour and not of blue colour. He has further admitted in cross-examination that it is not mentioned in mashirnama that mashirs did put their signatures on sealed packet of recovered property, as well as on the sample. He has admitted in cross-examination that neither any entry number in daily diary of Police Station is mentioned in the FIR nor he has produced in court, nor the factual position in respect to permission, he obtained from SHO, is mentioned in the FIR. From his evidence, it transpires that he was patrolling the area from 8:00 a.m. on that date and private Suzuki Pickup was taken for the said purpose, who was paid Rs.200/- and that the distance between the place on which the information was received from spy to the place of wardat is 1½ km.
On the other hand, PW-2 Mohammad Arif Suzuki Pickup driver has submitted that Suzuki was used for patrolling by police and while they were standing near Qazi General Hospital a person came there, he talked with ASI Mohammad Nawaz and pointed out towards a person, who was holding plastic cane in his hand. The said person was arrested and charas was recovered. This evidence of PW-2 completely belies the evidence of PW-1 in respect to spy information, time, distance between the place of information and wardat, as according to PW-1, the appellant was arrested from Qazi General Hospital but he received spy information 1 ½ km earlier, while spy had departed, but according to PW–2, information was received while they were standing near Qazi General Hospital and the accused was arrested at the pointation of spy. According to PW-2, accused was arrested 3/4 minutes after information and further he has denied any cash payment by the police for the use of his Suzuki Pickup and that very important evidence in this respect is, which he has stated that whole of the recovered property was sealed and he put his signature on that. The said witness did not mention in respect to separation of samples; mashirnama prepared by PW-1 is also silent in respect to the signature of mashirs on the recovered property or on the sample. It has also been noted that according to prosecution, recovery was effected on 29.06.2004 but it was sent to Chemical Examination after delay of 9 days i.e. on 08.07.2004 but according to Chemical Examiner, recovered property was received by him on 12.07.2004 i.e. after 4 days, which factual position made the case of the prosecution more suspicious, when according to PW-2 sample was not obtained and according to PW-1 plastic cane recovered from the accused was blue colour but in court it turned to green. This controversial factual position making the case of the prosecution suspicious and full of doubts, of which benefit must go to the accused, as the prosecution has not proved its version satisfactorily.
By a short order dated 08.02.2007, we have allowed the appeal and set aside the impugned judgment dated 09.12.2005 and the above the reasons for the same.
J U D G E
J U D G E
Samie