ORDER SHEET
IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR
Cr.
Appeal No. D-89 of 2017
|
Date |
Order with signature of Judge |
For regular hearing
Date
of hearing 27.03.2018
Date
of announcement 27.03.2018
Mr. Imdad Ali Malik, Advocate
for appellant
Mr. Abdul Rehman
Kolachi DPG
.-.-.-.-.-.-.-.-.-.-.-.
IRSHAD
ALI SHAH J. The
instant appeal is preferred by the appellant against judgment dated 16.06.2017
of learned Sessions Judge/Special Judge, CNSA Ghotki, whereby he was convicted
and sentenced to undergo Rigorous Imprisonment for 4˝ years and fine of Rs.20,000/-,
in case of non-payment of fine, to undergo Simple Imprisonment for 05 months,
for an offence punishable u/s 9(c) of CNS Act, for being in possession of 1250
grams of Charas.
2. It is the case of prosecution that on arrest
from appellant was secured three pieces of charas weighing to be 1250 grams by
police party of P.S A-Section Ghotki, which was led by SIP Muhammad Iqbal
Rajput, for that he was booked and challaned in the present case.
3. The appellant denied the charge. At trial
prosecution examined complainant SIP Muhammad Iqbal produced through him
“roznamcha” entries relating to his departure and arrival, mashirnama of arrest
and recovery, FIR of the present case and report of chemical examiner.
P.W/mashir H.C Muhammad Sachal and then closed its side by way of statement.
4. The appellant during course of his
examination u/s 342 Cr.PC denied the prosecution allegation by pleading
innocence. He examined D.W Asif in his defence but refused to examine himself
on oath in disproof of the prosecution allegation against him.
5. It was stated by D.W Asif during course of
his examination before learned trial court that; the appellant was apprehended
by police when he came at his show room and then was involved in this case falsely
by making foistation of Charas upon him.
6. On conclusion of the trial, learned trial
court convicted and sentenced the appellant by way of judgment which he has
impugned before this court by way of instant appeal, as is stated above.
7. It is contended by learned counsel for the
appellant that; the appellant being innocent was involved in this case falsely
by the police, there were material contradictions in between the evidence of the
complainant and his witnesses which were not considered by learned trial court
in its true prospective, one piece of Charas weighing to be 250 grams was sent
to the chemical examiner that too with ten days delay to its recovery, such
fact too according to him was ignored by learned trial court. By contending so,
he sought for acquittal of the appellant.
8. Leaned DPG has supported the impugned
judgment.
9. We have considered the above arguments and
perused the record.
10. It was stated by complainant SIP Muhammad Iqbal
and P.W/mashir H.C Muhammad Sachal during course of their examination before
learned trial court that on 11.08.2015 when they with rest of the police
personnel were conducting patrol within jurisdiction of P.S A-Section Ghotki,
when they reached at G.T Road Dingro Wah, there they came to know through spy
information that a person is selling Charas adjacent to brick-klin at under
bye-pass Ghotki. On such information they proceeded to the place of incident.
If for the sake of arguments, it is believed that; they proceeded to the place
of incident together with rest of police personnel on information then they
were under lawful obligation to have associated with them independent person to
witness the possible arrest of the appellant and recovery of Charas from him.
It was not done by them, for no obvious reason, which has rendered their proceedings
to the place of incident to be doubtful one. It was further stated by them that
they reached at the place of incident, there they found the present appellant
standing; he was apprehended after chase, on enquiry he disclosed his name to
be Mumtaz. On search from him were secured Rs.100/- and a plastic shopper, it
was found containing Charas in shape of three pieces, those were weighed to be 1250
grams. One piece weighing to be 250 grams was sealed for purpose of chemical
examination and then sent to Chemical Examiner during course of investigation
for chemical examination. If it was so, then liability of the appellant, if
any, was only to the extent of 250 grams of Charas, which was subjected to
chemical examination which constitute an offence punishable u/s 9(b) of the CNS
Act. In that respect reference if need be could be placed upon case of Gulshan Ara vs. The State which is
reported at 2010 SCMR 1162. Be that
as it may be. It was further stated by the complainant and his witness that a
mashirnama of arrest and recovery then was prepared by them at the spot. The
appellant together with the recovery so made from him then was taken to P.S A-Section
Ghotki, there he was booked in this case formally. On investigation according
to the complainant he recorded 161 Cr. P C statements of the P.Ws and then sent
the sample of Charas to chemical examiner through P.C Saeed Ahmed. It was done
with delay of about ten days to recovery of Charas, as is evident of the report
of chemical examiner. Why with such delay? Neither any explanation to such
delay is offered nor P.C Saeed Ahmed, the prosecution was able to examine. In
that situation the possibility of substitution or tampering with the sample
could not be ruled out. The reference in that respect if need be could be
placed upon case of Ikramullah &
others vs. The State which is reported at 2015 SCMR 1002. During course of cross examination, it was stated
by the complainant that; he tried to take private person as mashir but no body
was found willing. The complainant in that respect was belied by P.W/mashir H.C
Muhammad Sachal, by stating that no body was found available to have been taken
as private mashir. In presence of such inconsistency, the evidence of
complainant and his witnesses could hardly be relied upon to maintain
conviction and sentence against the appellant.
11. Based upon above discussion it could be
concluded safely that the prosecution has not been able to prove its case
against the present appellant beyond shadow of doubt. In case of Tariq Bashir vs. The State which is
reported at 1995 SCMR 1345 it was
held by Hon’able Supreme Court of Pakistan that no many but single infirmity is
enough to make accused entitled to benefit of doubt.
12. The plea of innocence with the present
appellant taken before learned trial court as such could not be lost sight of
in the said circumstances.
13. In view of my findings arrived at above, the
conviction and sentence, awarded to the appellant by learned trial court by way
of impugned judgment cannot be sustained, it is set-aside; consequently the
appellant is acquitted of the offence, for which he was charged, tried and
convicted. He shall be released forthwith in the present case.
14. Above are the reasons for our short order dated
27.3.2018, whereby the instant appeal was accepted.
J U D G E
Rafi