IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. D – 127 of 2018

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

 

Appellant             :         Sohrab Chohan, through Mr. Rukhsar

                                      Ahmed M. Junejo, Advocate

 

Respondent         :         The State, through Mr. Aftab Ahmed Shar

                                      Additional Prosecutor General      

 

Date of hearing :           27.02.2019

Date of decision:          27.02.2019

 

JUDGMENT

 

IRSHAD ALI SHAH, J:-   The appellant by way of instant Criminal Jail Appeal has impugned judgment dated 12.10.2018 passed by learned 3rd Additional Sessions Judge/Special Judge CNSA Sukkur, whereby the appellant has been convicted and sentenced to undergo R.I for four years and six months with fine of Rs.20000/- in case of his failure to make payment of fine to undergo S.I for five months finding him to be guilty for an offence punishable u/s 9(c) of Control of Narcotic Substances Act, 1997, for being in possession of two kilograms of charas.

2.                 It is the case of the prosecution that on arrest from the appellant was secured two kilograms of charas, in shape of four pieces by police party of ‘A’ Section Sukkur led by ASI Inam Ali Abbasi, for that he was booked and reported upon by the police.

3.                 At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined PW-1 Complainant ASI Inam Ali (Ex.6), he produced roznamcha entry, memo of arrest and recovery and FIR of the present case; PW-2 SIO/SIP Abdul Hafeez (Ex.07), he produced roznamcha entry, memo of place of incident and report of Chemical Examiner; PW-3 mashir PC Asad Ali (Ex.08) and then closed the side.

4.                 The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence. He did not examine himself on oath or any one in his defence. 

5.                 On evaluation of evidence so produced by the prosecution learned trial Court convicted and sentenced the appellant, as stated above.

6.                It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police and learned trial Court has believed the evidence of the prosecution witnesses without lawful justification. By contending so, he sought for acquittal of the appellant.

7.                Learned Additional PG for the State by supporting the impugned judgment has sought for dismissal of the instant appeal.

8.                We have considered the above argument and perused the record.

9.                It was stated by complainant ASI Inam Ali and PW mashir PC- Asad Ali that on 12.02.2018 they with rest of the police personnel were conducting patrol, when reached adjacent to double section School Sukkur, there they found the appellant to be standing with a black colour shopper in his hand, he was apprehended and on search from him was secured Rs.50/- and black colour shopper which was found containing four pieces of charas, those were weighed to be two kilograms, those were sealed for the purpose of Chemical examination. On asking, it was stated by the complainant ASI Inam Ali that the charas was weighed through electronic weighing scale. He in that respect was belied by PW mashir PC Asad Ali by stating during course of his cross-examination that the charas was weighed on gram weights. Such inconsistency in between their evidence could not be lost sight of, as it has raised a reasonable doubt with regard to the manner, whereby the charas was allegedly weighed at the place of incident. It was further stated by them that a memo of arrest and recovery then was prepared at the spot. The perusal whereof reveals that it was prepared at 2100 hours. As per FIR, it was the time whereby the complainant ASI Inam Ali with his witnesses allegedly reached at the place of incident. If it was so, then where the time consumed in apprehending the appellant, making inquiry from him, conducting his search and affecting recovery of charas from him gone? No explanation to it is furnished by the prosecution, which has made the very preparation of memo of arrest and recovery allegedly at the place of incident to be doubtful. In these circumstances, the evidence of the complainant ASI Inam Ali and PW/mashir PC Asad Ali could hardly be relied upon to base conviction.

10.              Next evidence is that of SIO/SIP Abdul Hafeez, it was stated by him that on investigation, he recorded 161 Cr.P.C statements of the PWs, visited the place of incident, prepared such memo, dispatched the charas to Chemical Examiner and thereafter submitted challan of the case before the Court of Law.  If the evidence of SIO/SIP Abdul Hafeez is believed to be true, even then it is not enough to improve the case of prosecution.

11.              Significantly, no question has been put to the appellant during course of his examination u/s 342 Cr.P.C to have his explanation on report of Chemical Examiner by learned trial Court, therefore, legally the report of Chemical Examiner could hardly be used against him to base conviction.

12.               In case of Muhammad Ashfaq versus The State                    (2014 P Cr.L J 1531), it has been held by Hon’ble Court that:-

“Section 342 Cr.P.C – Effect- If any incriminating piece of evidence was not put to accused in his statement recorded under section 342 Cr.P.C for his explanation, then same could not be used against him for his conviction.”

13.                  At this juncture a suggestion was made by learned Additional PG for remand of the case to learned trial Court to rewrite the judgment after recording statement of the appellant u/s 342 Cr.P.C afresh. If such an exercise is undertaken even then it would not improve the case of the prosecution under the circumstances of the case which are discussed above.

14.                  In case of Tarique Bashir vs. The State (1995 SCMR 1345), it has been held by Hon’ble Apex Court that;

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”

15.               For what has been discussed above, the impugned judgment is set aside. Consequently, appellant is acquitted of the offence, for which he was charged, tried and convicted by learned trial Court. He shall be released forthwith, if his custody is not required in any other case.

16.              Instant Appeal is disposed of in above terms.

 

Judge

Judge

ARBROHI