IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.D-71 of 2016
Present:
Mr. Justice Khadim Hussain M. Shaikh
Mr. Justice Amjad Ali Sahito
Appellants : (01). Sanaullah s/o Abdul Ghani Lehri Brohi,
(02). Khalil Ahmed s/o Juma Khan Bangulzai Brohi
Through Mr.Safdar Ali Bhutto, Advocate.
State : Through Mr.Khadim Hussain Khooharo, Addl.P.G
Date of hearing : 15.05.2018.
Date of decision : 15.05.2018.
J U D G M E N T
Amjad Ali Sahito, J.– Appellants Sanaullah and Khalil Ahmed Brohi were tried by learned Special Judge (CNSA), Jacobabad, in C.N.S Case No.01/2015, St.Vs.Sanaullah and others, for offence punishable under section 9(c) of Control of Narcotics Substance Act, 1997, emanating from Crime No.133/2014 registered with P.S City Jacobabad, whereby they were convicted and sentenced for an offence punishable under section 9(c) of Control of Narcotics Substance Act, 1997, to suffer imprisonment for life and to pay fine of Rs.200,000/-(Two Lacs) each and in case of default in payment of fine, to suffer S.I for one (01) year more. However, benefit of section 382-B Cr.PC was also extended to them.
2. The case of the prosecution as depicted in the FIR is that on 29.12.2014, a police party headed by SIP Shabir Ahmed Sahito left CIA Unit Jacobabad, under roznamcha entry No.10, for patrolling, during which they reached at Quetta Road, Eidgah Chowk, Jacobabad, and at 1600 hours they noticed one white color Suzuki pickup, which was got to halt and found one person sitting on driving seat while two persons on its back seat. The said persons on being suspected were enquired about their identity by citing PC Umer Din and PC Hakim Ali, to which they disclosed their names to be Sanaullah Brohi, 2). Khalil Ahmed Brohi and 3).Zahoor Ahmed Khoso, all residents of Nihal Kot, Baluchistan. The said Suzuki pickup was checked and found one green color sack lying near driver Zahoor Ahmed Khoso, while two green color sacks were found beneath the rear seat. The sack secured from driving seat was opened and found containing 23 packets of charas while two green color sacks were also found containing 25 packets of charas each. The accused were arrested but nothing was secured from their bodily search. The driver on query about the registration book of the vehicle, failed to produce the same. Five packets from all three sacks were separated as sample for chemical analysis. Such mashirnama of arrest and recovery was prepared at the spot, which was signed by the above named mashirs. Thereafter, the accused alongwith recovered case property were brought at Police Station, City Jacobabad, where the instant case for an offence punishable u/s.9(c) of Control of Narcotic Substance Act, 1997, was registered against them on behalf of the State. On completion of the usual formalities, the police submitted report u/s.173 Cr.PC before the competent Court of law by releasing accused Zahoor Ahmed Khoso u/s.497 Cr.PC while placing his name in column No.2.
3. The learned trial Court on 12.09.2015 framed a charge against the appellants at Exh.06, to which they pleaded not guilty and claimed trial.
4. At the trial, in order to establish the accusation against the appellants, the prosecution examined PW-01 Complainant/SIP Shabir Ahmed at Exh.07, he produced memo of arrest and recovery at Exh.07/A, FIR at Exh.07-B. PW-02 PC Umer Din at Exh.08. PW-03 SHO Ali Anwar at Exh.09, he produced roznamcha entry at Exh.09/A, and chemical examiner’s report at Exh.09-B respectively. Thereafter, the learned DPP for the State closed the prosecution side vide statement at Exh.10.
5. Statements of the appellants were recorded u/s.342 Cr.PC at Exh.11 and 12 respectively, in which they denied the prosecution allegations leveled against them by pleading their innocence and further stated that they were passengers of the vehicle while co-accused Zahoor Ahmed Khoso was owner of said vehicle. However, they neither examined themselves on oath in terms of Section 340(2) Cr.PC, nor led any evidence in their defense.
6. Thereafter, learned DPP for the State moved an application u/s.540 Cr.PC for calling PC Mohbat for his evidence vide Exh.13, which was allowed vide order dated 08.09.2016 at Exh.14. Later-on PC Muhabat was examined at Exh.15, he produced road certificate at Exh.15/A and roznamcha entry at Exh.15/B. The learned DPP for the State then closed the prosecution side vide statement at Exh.16.
7. The statements of appellants were recorded u/s.342 Cr.PC at Exh.17 and 18 respectively, in which they denied the prosecution allegations by pleading their innocence.
8. The learned trial Court after hearing the parties counsel and on assessment of the evidence, convicted and sentenced the appellants, as stated above, vide judgment dated 24.10.2016, which they impugned before this Court by way of filing instant appeal.
9. Mr.Safdar Ali Bhutto, Learned Counsel for the appellants contended that the appellants are innocent and have falsely been implicated in this case by the police; that co-accused Zahoor Ahmed Khoso being exclusive owner and driver of the said vehicle carrying narcotics substance was let-off by the police during course of investigation while the present appellants being its passengers were arraigned in this case falsely; that the complainant has failed to produce the roznamcha entry to justify his movement regarding setting out from the police station for patrolling; that alleged recovery was effected on 29.12.2014 while the samples were received by PC Muhbat Ali to be sent for chemical laboratory on 30.12.2014, which was received by the laboratory on 31.12.2014; that the complainant and PWs being police officials are interested and set-up witnesses; that the evidence of such interested witnesses requires independent corroboration, which is also lacking in the present case; that no any independent person has been cited as mashir of arrest and recovery, which is in clear violation of mandatory provision of Section 103 Cr.PC; that there are material contradictions in the evidence of prosecution and thus the prosecution has failed to prove its case against the appellants beyond shadow of doubt, under the above mentioned facts and circumstances, the appellants are entitled for their acquittal.
10. On the other hand, Mr.Khadim Hussain Khooharo, Addl.Prosecutor General for the State while supporting the impugned judgment has argued that the prosecution has proved its case against the appellants who were found transporting huge quantity of narcotic substance in a vehicle; that the police officials had no enmity to foist such a huge quantity of charas upon the appellants at their own; he thus lastly prayed for dismissal of instant appeal.
11. We have heard learned counsel for the appellants, learned Additional Prosecutor General for the State and have minutely gone through the record with their able assistance.
12. The analysis of the record shows that 73 K.Gs of Charas was found in Suzuki pickup, driven by co-accused Zahoor Ahmed Khoso being its exclusive owner, who during course of investigation was released by police in terms of Section 497 Cr.PC by placing his name in column No.2. Further, only 05 K.Gs from each sack were taken out as sample for chemical analysis, while for remaining, neither any representative sample was taken for analysis nor any chemical report is available on record to believe that the said recovery is narcotics. As for as the allegations against the appellants are concerned, the prosecution’s own case is that co-accused Zahoor Ahmed Khoso was driving Suzuki pickup being its owner at the relevant time, wherefrom the Charas weighing to be 73 K.Gs was secured. Nowhere it has been mentioned by the prosecution that the appellants had prior knowledge of the contraband charas being transported by co-accused, nor they had any concern with it. Further, there is nothing on the record to establish nexus of these two appellants with the alleged Suzuki pickup in any manner, though they both were found travelling in the vehicle on its back seat, but no material was brought on record to indicate that the charas was lying in sacks carried by co-accused. The record confirms this fact that the complainant party on its own without being led by the appellants started search of the said vehicle and discovered the charas therefrom. In view of this matter, it was incumbent upon the prosecution to establish the appellants’ conscious possession of the charas, which admittedly was kept in the said vehicle but as per the record the prosecution has failed to bring anything in this regard. The Honourable Supreme Court of Pakistan in recent pronouncement while dealing with such like cases with same story has extended benefit of doubt to the accused found travelling as passenger in the vehicle from which narcotics was recovered.
13. While deciding jail petition No.406/2014 (Abdul Sattar, etc Vs. the State) involving recovery of 3200 K.Gs of charas from a truck, the Honourable Supreme Court has maintained conviction and sentence of the driver namely Abdul Sattar but has acquitted co-accused Muhammad Khan vide order dated 27.01.2016 by observing as under;-
“As regards petitioner No.2 namely Muhammad Khan we have noticed that he was merely travelling in the relevant truck at the time of the alleged recovery and admittedly he was not in the driving seat at the relevant time. It was, therefore incumbent upon the prosecution to establish conscious possession on the part of the said petitioner visa-a-vis availability of narcotics substance in the vehicle in which he was travelling but the prosecution had failed to bring anything on the record to discharge its onus in that regard. If at all anything was to be presumed in this case then that was innocence of the said petitioner rather than his guilt. In this view of the matter we have decided to extend the benefit of doubt to Muhammad khan petitioner. This petition is, therefore, converted into an appeal to the extent of Muhammad Khan petitioner and the same is allowed, the conviction and sentence of the said petitioner/appellant recorded and upheld by the courts below are set-aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith, if not required to be detained in connection with any other case”.
In another jail petition No.368 of 2015 (Abdul Nabi etc Vs. the State) involving recovery of 60 K.Gs of charas on top of the Wagon, the Honourable Supreme Court of Pakistan has maintained the conviction and sentence of the driver namely Abdul Nabi but acquitted co-accused Kashmir and Saffaruddin vide order dated 23.02.2016, by observing as under;-
“As regards Kashmir and Saffaruddin petitioners we have straightway observed that even according to the prosecution itself they were passengers travelling in the vehicle being driven by their co-convict namely Abdul Nabi and, thus, it was incumbent upon the prosecution to establish conscious possession of narcotic substance on the part of the said petitioners but the prosecution had utterly failed to bring anything on the record establishing that the said petitioners were aware of availability of narcotic substance in the vehicle in which they were travelling as the passenger. In these circumstances, we have decided to extend benefit of doubt to the said petitioners.
14. Furthermore, the complainant has failed to produce any roznamcha entry which may authenticate the version of the police party in respect of their departure from the police station and recovery of the narcotics substance from the said vehicle. We have noticed multiple contradictions in the prosecution story in that complainant Shabir Ahmed in his evidence deposed that one white color Suzuki was coming from northern side, wherefrom the narcotic substance was recovered but PW SHO Ali Anwar admitted that co-accused Zahoor Ahmed Khoso was driving Dotson vehicle. The complainant has admitted that the Charas was weighed by one Rehri passerby in his presence but he was not cited as witness. Furthermore, it seems to be that the complainant left police station without having investigation kit with them, then however it was possible for him to seal the alleged recovery. The alleged recovery was effected on 29.12.2014 but chemical report reveals that the sample was handed over to PC Muhbat on 30.12.2014, which was received by the laboratory on 31.12.2014. There is nothing on the record to show that where the said sample was kept by PC Muhbat for the intervening period and for that the prosecution has failed to furnish any explanation. These all material contradictions in the evidence of prosecution witnesses adversely reflected upon the case and rendered it highly doubtful. It is well settled principle of law that 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 is to be extended in favour of the accused not as a matter of grace or concession, but as the matter of right. The reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:
4.--- Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim,”it is better that ten guilt persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State(1995 SCMR-1345), Ghulam Qadir and 2 others v. The State(2008 SCMR-1221), Muhammad Akram v. The State(2009 SCMR-230) and Muhammad Zaman v. The State(2014 SCMR-749).
15. In the light of above discussion and particularly after taking guidance from the above cited decisions of the Honourable Supreme Court of Pakistan, we are of the humble view that the prosecution has not been able to establish on the part of appellants namely Sanaullah and Khalil Ahmed Brohi the conscious possession of the alleged narcotic substance kept in the Suzuki pickup, therefore, the appeal of the present appellants is allowed, the conviction and sentence awarded to them by learned trial Court are set-aside and they are acquitted of the charge, by extending them benefit of doubt.
16. These are the detailed reasons of short order dated 15.05.2018, announced by us.
J U D G E
J U D G E