ORDER SHEET
IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR
Cr.
Jail Appeal No. D-134 of 2017
Date |
Order with signature of Judge |
For regular hearing
Date
of hearing 22.03.2018
Date
of announcement 29.03.2018
Mr. Ameenuddin Khaskheli
Advocate for appellant
Mr. Abdul Rehman Kolachi
DPG
.-.-.-.-.-.-.-.-.-.-.-.
IRSHAD
ALI SHAH J. The
instant appeal is preferred by the appellant against judgment dated 11.09.2017
of learned Sessions Judge/Special Judge, CNSA Ghotki, whereby the appellant was
convicted and sentenced to undergo Rigorous Imprisonment for 8˝ years and was
imposed fine of Rs.40,000/-, in case of non-payment of fine, he was ordered to
undergo Simple Imprisonment for 07 months, for an offence punishable u/s 9(c)
of CNS Act, for being in possession of six Kilogram of Charas.
2. It is the case of prosectuion that on 24.3.2017
at about 1800 hours at Mir Kosh Bus stop, on arrest, from the appellant was secured
six Kilograms of charas by police party of P.S Khambhra, which was led by SIP
Mumtaz Ali, for that the appellant was booked and challaned, in the present
case to face trial, in accordance with law.
3. The appellant denied the charge. At trial, prosecution
examined complainant SIP Mumtaz Ali (PW.1) produced through him “roznamcha”
entries relating to his departure and arrival, mashirnama of arrest recovery
and FIR of the present case. Mashir H.C Ayaz Ali (PW.2), produced through him mashirnama
of place of incident. SIO/Inspector Darya Khan (PW.3), produced through him road
certificate and report of chemical examiner and then closed its side.
4. The appellant during course of his
examination u/s 342 Cr.PC denied the prosecution allegation by pleading innocence,
by stating that he has been involved in this case falsely by the police at the
instance of his father-in-law Ghulam Rasool, with whom he is disputed over
matrimonial affairs. He did not examine any one in his defence or himself on
oath.
5. On conclusion of the trial, learned trial
court convicted and sentenced the appellant by way of judgment, which the
appellant has impugned before this court, by way of instant appeal, as is stated
above.
6. It is contended by learned counsel for the
appellant that the appellant being innocent was involved in this case falsely
by the police by making foistation of charas upon him at the instance of his
father-in-law Ghulam Rasool with whom he is disputed over matrimonial affairs,
the material contradictions in between the evidence of the complainant and his witnesses
were not considered by learned trial court, in its true prospective, the samples
so drawn were not weighed or marked individually. By contending so, he sought
for acquittal of the appellant.
7. Leaned DPG has supported the impugned
judgment.
8. We have considered the above arguments and
perused the record.
9. It was stated by complainant SIP Mumtaz Ali
and P.W/mashir H.C Ayaz Ali, during course of their examination before learned
trial court that on the date of incident when they with rest of the police personnel
were conducting patrol, during course whereof they came to know through spy
information, that a person is selling Charas at bus stop Mirkosh. On such
information they proceeded to the place of incident. If for the sake of
arguments, it is believed that; the complainant and his witness proceeded to
the place of incdient together with the rest of the police perosnnel, on spy information,
then they were under lawful obligation to have associated with them independent
person to witness the possible arrest and recovery. It was not done by them,
for no obvious reason, which has rendered their proceedings to the place of
incident, on information 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, on enquiry he disclosed his name to be Mian Dad.
On search from him were secured Rs.1000/- and a plastic shopper. It was found
containing seven pieces of Charas, those were weighed to be six kilograms. The
samples consisting to be of one kilogram Charas were drawn from each and every piece
of Charas so secured from the appellant. It was sealed while remaining Charas
was also sealed separately. If such exercise was actually undertaken by the
complainant and his witensses at the place of incdient, then the samples of the
charas so drawn were ought to have been weighed, marked and sealed individually.
It was not done by them, for no obvious reason, which has rendered the proceedings
with regard to drawal of the samples from the charas allegedly secured from the
appellant to be doubtful one. 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 with the recovery allegedly made from him then was taken to
P. S Khambra. There he was booked in the present case formally and further
investigation was conducted by SIO/Inspector Draya Khan. During course of cross
examination. It was stated by the complainant that; during patrolling he
visited Khambhra, Mirkosh and Mureed Shakh and on arrest, the hands of
appellant were tied with handkerchief of black and white colour. The evidence
of P.W/mashir H.C Ayaz Ali is silent with regard to visit of Khambhra during
patrolling, which appears to be significant. He also has belied the complainant
with regard to colour of clothes with which the hands of the appellant on
arrest were allegedly tied; same according to him was of white colour. In presence
of above inconsistencies, the evidence of the complainant and his witness could
not be said to be inspiring confidence to be relied upon to maintain conviction
and sentence against the appellant.
10. Next evidence is that of SIO/Inspector Darya
Khan. It was stated by him before learned trial court during course of his
examination that; on investigation he recorded 161 Cr.PC statements of the
P.Ws, visited the place of incident, prepared such mashirnama, same according
to him was prepared by H.C Ayaz Ali at his dictation. Evidence of P.W/mashir
H.C Ayaz Ali is silent with regard to preparation of mashrinama of place of incident
by him at the dictation of SIO/Inspector Darya Khan. In such circumstance no
much reliance could be placed upon mashirnama of place of incident. It was
further stated by SIO/Inspector Darya Khan that; he then dispatched the samples
of the Charas to the chemical examiner, for chemical examination through PC
Muneer Ahmed and the after usual investigation submitted challan of the case.
If for the sake of arguments, the omissions on the part of SIO/Inspector Darya
Khan, as are pointed above, if are over looked even then his evidence is not
enough to improve the case of prosecution against the appellant.
11. The perusal of the report of the chemical
examiner (Ex.7-B) reveals that the samples of Charas were sent to him by the
police on 27.03.2017 through P.C Muneer Ahmed, which PC Muneer Ahmed delivered to
him on 28.03.2017, with one day delay. What he did with the samples of Charas
for one day? Neither explanation to such delay is offered nor PC Muneer Ahmed,
the prosecution was able to examine. In that circumstances the possibility of
tampering or replacing of samples of charas could not be lost sight of. By
making such conclusion we are supported of the findings of Hon’able Supreme
Court of Pakistan which is recorded in case of Ikramullah and others v. The State reported at 2015 SCMR 1002.
12. The samples which were sent to the chemical
examiner, on de-sealing by him were found to be ten in number. Under what
circumstances the ten samples were drawn from six pieces of the charas. No
explanation to it is offered by the prosecution either before learned trial
court or before this Court. In that situation the possibility of manipulation of
samples of Charas by PC Muneer Ahmed or someone else before its delivery to
Chemical Examiner could not be ruled out.
13. The discussion involved a conclusion that the
prosecution was not able to prove its case against the appellant beyond shadow
of doubt. The appellant as such is entitled to such benefit. It has been held
by Hon’able Supreme Court of Pakistan in case of Tariq Pervaiz vs. The State which is reported at 1995 SCMR 1345 that if a simple
circumstance creates reasonable doubt in a prudent mind about the guilt of the
accused then he would be entitled to such benefit not as a matter of grace and
concession but as a matter of right.
14. The plea of innocence, which the appellant
taken at trial and during course of his examination u/s 342 Cr.PC before
learned trial court could not be lost sight of in the above said circumstances.
15. In view of findings arrived at above, the
conviction and sentence, awarded to the appellant by learned trial court, by way
of impugned judgment could not be sustained, it is set-aside, consequently he
is acquitted of the offence, for which he was charged, tried and convicted. He
shall be released forthwith in the present case.
16. The instant appeal is disposed of in above
terms.
J U D G E
J U D G E
Rafi