IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Acquittal Appeal No. D- 10 of 2015

Present:

Mr. Justice Khadim Hussain Shaikh

Mr. Justice Amjad Ali Sahito

Appellant: The State through Prosecutor General,Sindh at Larkana.

Respondent: Hakim Ali Saad Khanani Jatoi,

Date of Hearing : 12.04.2018

Date of Judgment : 12.04.2018.

J U D G M E N T

Amjad Ali Sahito, J.- Through the captioned Criminal Acquittal Appeal, appellant/Prosecutor General Sindh has called in question judgment dated 19.03.2015, passed by Sessions Judge/Special Judge (CNS), Shikarpur in Special Case No. 471 of 2014 re. the State v. Hakim Ali arising out of F.I.R No. 91 of 2014 for offence under section 9 (c) Control of Narcotic Substances Act, 1997 registered at Police Station New Foujdari, Shikarpur, whereby respondent Hakim Ali has been acquitted.

2. Briefly, the facts of the case are that on 10.06.2014 complainant ASI Abdullah Sanjrani of CIA Centre, Shikarpur left CIA Centre along with his subordinate staff namely PC Assadullah, PC Allah Rakhio and PC Muhammad Ayoob for patrolling. During patrolling, the complainant received spy information that one person was going through Rustam Road having Charas. On receipt of such information, the complainant party proceeded towards the pointed place where the complainant saw one person, who, on seeing the police party tried to escape away but being suspect he was arrested. On enquiry, he disclosed his name as Hakim Ali. The personal search was conducted and from fold of his shalwar, the complainant found three pieces of charas and also recovered four currency notes of Re.50/- total Rs.200/- from front side of his pocket. The charas was weighed which came to 03 K.Gs. The mashirnama of arrest and recovery was prepared in presence of mashirs PC Assadullah and PC Meeran Khan. The complainant brought the respondent and the property at Police Station New Foujdari where case was registered on behalf of the State. After usual investigation the respondent was sent up with the challan to face his trial.

3. After completing the formalities a formal charge was framed against the respondent Hakim Ali at Ex.2, to which they pleaded not guilty and claimed to be tried vide his plea at Ex.3. The prosecution examined PC Miran Khan as P.W 01 at Ex.5 who produced memo regarding recovery of substance as Ex.5/A and inspection of scene of offence as Ex.5/B. First I.O Syed Hajjan Shah as P.W 02 at Ex.6, second I.O SIP Lal Bux as P.W 03 at Ex.7 who produced report of the chemical Examiner at Ex.7/A, Scribe of FIR namely HC Manzoor Ali as P.W 04 at Ex.8 who produced FIR at Ex.8/A, CTC of entry under which complainant left the CIA Centre at Ex.8/B where after side of prosecution was closed by Special Prosecutor vide statement Ex.9 without examining the complainant ASI Abdullah Sanjrani as he was paralyzed, brought in Court on vehicle and unable to alight from vehicle or speak. The statement of the accused/respondent under section 342, Cr.P.C was recorded at Ex.10 wherein he denying the allegations of the prosecution, professed his innocence. He however neither examined himself on oath nor did he examine any person as his defence witness.

4. At conclusion of the trial and after hearing counsel for the parties the learned trial Court has acquitted the respondent of the charge as discussed in paragraph No.1 supra vide judgment dated 19.03.2015.

5. The learned Prosecutor General Sindh has preferred instant Criminal Acquittal Appeal against the acquittal of respondent Hakim Ali.

6. Mr. Khadim Hussai Khooharo, Additional Prosecutor General Sindh at Larkana has submitted that the prosecution has fully proved the case against the accused/respondent beyond any reasonable shadow of doubt. The evidence of prosecution witnesses is of confidence inspiring and worthy of credit and their evidence is corroborated by unchallenged expert evidence viz. Report of Chemical Examiner, hence the approach of learned trial Court is not correct. He further submitted that the prosecution evidence is more trust worthy, so materially, conclusive, without any infirmity, discrepancy hence the finding or approach of the trial Court is based on presumptions and assumptions, therefore, the acquittal of the respondent is not justifiable. He lastly submitted that the impugned judgment passed by the learned trial Court is against the law and equity, hence is liable to be set aside, as such the respondent is liable to be convicted.

7. We have considered the submissions of learned Additional Prosecutor General and have gone through the evidence with his assistance. The record reveals that complainant ASI Abdullah Sanjrani has not been examined by the prosecution thus there is no corroboration to the evidence of the mashir. The evidence of mashir of recovery remains uncorroborated which even otherwise is not trustworthy as he has deposed that the charas recovered from the fold of shalwar of accused was not wrapped and in the cross examination he has admitted that charas present in the Court is wrapped in yellow and white plastic. Furthermore first Investigating Officer Syed Hajan Shah P.W 02 at Ex.06 has deposed that he did not send the samples for chemical examination but handed over it to his successor. Second Investigating Officer SIP Lal Bux PW 03 at Ex.7 has deposed that on 14.6.2014 he received the samples and then he sent the same to Chemical Examiner but the Chemical Examiner’s report produced by him at Ex.7/A shows that samples were received by him on 16.6.2014 by the hand of PC Wahid Bux, has also not been examined as such it also shrouds in mystery as to where and how the samples were kept from 11.6.2014 to 16.6.2014 as such Chemical Examiner’s report even has lost its evidentiary value.

8. Obviously, the learned trial Court after appreciating the evidence in its true perspective came to the conclusion that the prosecution has failed to prove its case against the accused /respondent beyond reasonable doubt. Such a conclusion based on appreciation of evidence suffering from no illegality or infirmity or any perversity does not call for any interference in the instant acquittal appeal. Accordingly, the instant appeal being devoid of merit is liable to be dismissed.

9. Above are the reasons of short order dated 12.4.2018 whereby this appeal was dismissed.

Judge

Abid H. Qazi/**