IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Appeal No.D- 100 of 2011

                       

Present:

                                        Mr. Justice Syed Hassan Azhar Rizvi

                                        Mr. Justice Rasheed Ahmed Soomro.

         

Mr. Abdul Haq Odho Advocate for appellant a/w appellant.

Mr. Saleem Akhtar, Additional Prosecutor General.

 

                    Date of hearing:     27-04-2017

           

                                        J U D G M E N T

 

RASHEED AHMED SOOMRO J., This appeal has been preferred against the conviction and sentence recorded by learned Special Judge (CNS), Khairpur vide judgment dated 24.08.2011, passed in special case No. 40 of 2010, arising out of Crime No. 104 of 2010 registered with P.S, B-section, Khairpur under section 9(b) of CNS, Act,1997, whereby the appellant Mohammad Azam Phulpoto has been convicted under section 9(b) of CNS Act, 1997 and sentenced to suffer R.I for two years and fine of Rs.5000 or in default thereof, to suffer S.I. for one month with benefit of section 382-B, Cr.P.C.

2.       Brief facts giving rise to the present appeal are that on 06.06.2010 at about 1700 hours, at link road leading from Mitho Mari to  Tando Masti near village Khanpur, the appellant was found in possession of 250 grams of Charas which were secured by the police party. Such memo of arrest and recovery was prepared on the spot. The appellant and recovered property were brought at Police Station, where complainant lodged FIR. Recovered property was sent to the chemical Analyzer. The report came in positive, therefore, the appellant was challaned in the Court.

3.       Trial court framed charge against the appellant under section 9(b) of CNS Act, 1997, to which appellant pleaded not guilty and claimed trial.

4.       In order to prove its case, prosecution examined PW-1 Mashir HC- Sikandar Ali Jagirani, he produced Mashirnama of arrest and recovery, PW-2 complainant SIP-Tufail Ahmed Bhutto, he produced copy of FIR, departure and arrival entries and PW-3 SIO-Mohammad  Fahim, he produced copy  addressed to S.P (Investigation) seeking permission for sending the same to  Chemical Examiner and Chemical Report. Thereafter, side of prosecution was closed.

5.       Statement of appellant in terms of section 342 CrPC was recorded, wherein he pleaded his innocence and false implication at the hands of police. However, neither appellant himself examined on oath nor led any evidence in his defence.

6.       After hearing the learned counsel for the parties, learned trial court convicted and sentenced the appellant, as stated above.

7.       The learned counsel for the appellant has mainly argued that there are major contradictions and discrepancies in the depositions of PWs; that in fact, the appellant was apprehended under a joint Mashirnama prepared in respect of recovery of alleged contraband material and unlicensed weapon, however, the appellant has been acquitted in the case of 13(d) Arms Ordinance by learned Judicial Magistrate-III, Khairpur vide judgment dated 29.11.2010; that there is delay of 08 days in dispatching the contraband material to the Chemical Examiner and it is not known where the property was lying for such long period, as such Chemical Analyzer’s report carries no weight; that there is sheer violation of mandatory provision of section 103 Cr.P.C as it was incumbent upon the police party to associate private persons to witness the arrest and recovery of contraband material from the possession of the appellant, therefore, the prosecution has failed to prove the case.

8.       Conversely, the Additional Prosecutor General for the State admitted that there are material contradictions in the depositions of P.Ws which have been pointed out by the learned counsel for the appellant, therefore, he has not supported the impugned judgment passed by the trial court.

9.       We have heard the learned counsel for the appellant, Additional Prosecutor General for the State and perused the record of this case very carefully.

10.     As per contents of a joint Mashirnama, the recovery of 250 grams of Charas and .30 bore unlicensed TT pistol was allegedly effected from the possession of appellant, however, learned counsel for appellant has placed on record copy of judgment dated 29.11.2010, passed by learned 3rd Judicial Magistrate, Khairpur, whereby appellant has been acquitted of the charge in case of 13(d) Arms Ordinance, arising out of crime No.105 of 2010 of P.S, B-section, Khairpur.

11.     Record reflects that Mashirnama of recovery and arrest of appellant shows that same was prepared at 1600 hours, however, both PW-1 HC Sikandar Ali (Mashir) and PW-2 SHO Tufail Ahmed have contradicted on the time of arrival at the place of recovery and preparation of Mashirnama. PW-1 has deposed that when they reached near village Khanpur at 1600 hours, where they saw one person coming from eastern side and reached on road, who on seeing police mobile tried to escape towards eastern side, police followed accused and apprehended him upto the distance of 15 paces. It would be out of place to mention here that when complainant party reached near village Khanpur at 1600 hours and consumed sufficient time in following and arresting the appellant at the distance of 15 paces, then how it is possible to prepare such Mashirnama at the same time i.e. 1600 hours. PW-1 further deposed that SHO tried to pick up private mashirs, but private mashirs were not available, hence he and PC Akhlaq Ahmed were appointed as Mashirs and personal search of accused was conducted. SHO secured one shopper bag from side pocket of shirt of accused, he opened the said shopper and saw two pieces of Charas were lying in it. SHO also conducted further personal search of accused and secured one TT pistol from his left side fold of shalwar. Thereafter, SHO weighed Charas on the spot which became 250 grams. Then Charas was sealed on the spot. SHO inquired from accused about license of weapon, to which accused disclosed that weapon is unlicensed. Thereafter SHO prepared such Mashirnama of arrest and recovery in his presence and PC Akhlaq Ahmed, however, in his cross-examination he has deposed to have consumed 45 minutes in completing the proceedings at the spot. While PW-2 complainant SHO Tufail Ahmed in his cross-examination admitted to have consumed 30/35 minutes in arresting the accused and completing proceedings at the place of wardhat, as such the case of prosecution is doubtful on this point also. Thus, the prosecution has failed to prove the case against the appellant beyond any reasonable doubt. For creating shadow of doubt, it is not necessary that there should be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind then its benefit has to be given to the accused not as a matter of grace or concession, but as a matter of right. This dictum is laid down in the case of Tariq Pervez v.  The State ( 1995  S C M R 1345).

12.     After hearing the learned counsel for the parties, by a short order dated 27.04.2017, the appeal was allowed. Consequently, the impugned judgment of the trial court convicting and sentencing the appellant was set aside and appellant was acquitted. Appellant Mohammad Azam Phulpoto was present on bail, his bail bond was canceled and surety discharged. These are the reasons of our short order dated 27.04.2017.

                                                  JUDGE     

 

 

 

                                                                                          JUDGE     

 

 

Ahmad