HIGH COURT OF SINDH AT KARACHI

 

Criminal Appeal No. 51 of 2018

 

 

 

 

 

                                                                    Present:  Mr. Justice Naimatullah Phulpoto

          Mr. Justice Irshad Ali Shah

 

Appellant:                                         Loung son of Khamiso through Syed Masood Shah, Advocate

 

Respondent:                                      The   State   through Mr. Abrar Ahmed Khichi Additional Prosecutor General, Sindh

 

Date of hearing:                                ­­­­­16.07.2019

 

J U D G M E N T

 

 

IRSHAD ALI SHAH, J.  The appellant by way of instant appeal has impugned judgment dated 11.01.2018, passed by the learned Sessions/ Special Judge Control of Narcotics Substances Thatta, whereby he has been convicted for the offences punishable under Section 9(c) Control of Narcotic Substances Act, 1997 and sentenced to suffer Rigorous Imprisonment for period of 04 years and to pay fine of Rs. 10,000/-. In default in payment of such fine, to suffer simple imprisonment for two months with the benefit of Section 382(b) Cr.P.C.   

 

2.         Facts in brief necessary for disposal of instant appeal are that on arrest from the personal search of the appellant was allegedly secured 1090 grams of Charas by the police party of Police Station Gharo led by SIP Ghulam Hussain, for that he was booked and challaned accordingly.

 

3.         At trial, appellant did not plead guilty to the charge and prosecution to prove it, examined PW-1 HC Irshad Ahmed Siddiqui (Ex.04). He produced departure as well as arrival entries of station diary and the memo of arrest and recovery. PW-2 SIP Ghulam Hussain Brohi, (Ex.5). He produced copy of the criminal case FIR and report of chemical examiner and the prosecution closed its side.

 

4.         The appellant in his statement recorded under Section 342 Cr.P.C. denied the prosecution allegations by pleading innocence. He did not examine himself on oath or anyone in his defence.

 

5.         On evaluation of evidence, so brought by the prosecution, the trial Court found the appellant guilty for the above said offences and then convicted and sentenced him accordingly by way of judgment dated 11.01.2018, which the appellant has impugned before this Court by way of present appeal, as stated above.

 

6.         It is contended by the learned Counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police and the evidence which has been produced by the prosecution being contradictory and doubtful has been believed by the learned trial Court without any justification. Lastly, it is contended that prosecution has failed to prove safe custody of Charas at Malkhana of police station and its safe transmission to the chemical examiner. By contending so, he prayed for acquittal of the appellant.

 

7.         Learned Additional Prosecutor General, Sindh for the State by opposing acquittal of the appellant was fair enough to admit that the evidence of the prosecution is inconsistent.  

 

 

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

 

9.         It has been stated by complainant SIP Ghulam Hussain Brohi and PW mashir HC Irshad Ahmed Siddiqui that on 24.06.2016, they with rest of the police personnel were conducting patrol within jurisdiction of P.S Gharo, when they reached adjacent to Girl High School Gharo, there they came to know through spy information that a person was selling charras adjacent to old custom building. On such information, they proceeded to the pointed place. If for the sake of arguments, it is believed that they proceeded to the pointed place on spy information then they ought to have associated with them independent person to witness the arrest and recovery, which have not been done by them for no obvious reason. Such omission on their part could not be overlooked. It was further stated by them that they reached at the place of incident and found the appellant standing there, he was apprehended and on search and from him was secured 1090 grams of Charas. Mashirnama of arrest and recovery was prepared and then he was taken to the police station Gharo there he was booked in the aforesaid case formally.

 

10.       Complainant has himself conducted investigation of the present case and it was admitted by him that 161 Cr.P.C statements of P.Ws were recorded by WPC Aqeel Ahmed at his dictation. None of 161 Cr.P.C statement of any P.W contains a note that it was recorded by WPC Aqeel Ahmed. In that situation it could be concluded safely that investigation of the present case which allegedly was conducted by complainant SIP Ghulam Hussain was casual in its nature.

 

11.       Perusal of the report of the chemical examiner Ex.5/C reveals that the Charas allegedly recovered from the appellant on 24.06.2016 was dispatched to him on 27.06.2016 through PC Muhammad Juman. It was with delay of four days to its recovery. No explanation to such delay is offered by the prosecution. Be that as it may, PC Muhammad Juman delivered the Charas to chemical examiner on 30.06.2016 with a delay of three days. What he had with the Charas for about three days? Non-explanation of it, is offered by the prosecution. PW PC Muhammad Juman has not been examined by the prosecution. In that situation it could safely concluded that the prosecution has not been able to prove safe custody and transmission of Charas to the chemical examiner beyond doubt and appellant is appearing to be entitled to such benefit.  

 

12.       In the case of Ikramullah and others v. The State reported as (2015 SCMR 1002), the Hon’ble Supreme Court has held as under:

 

“5.         In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the investigating officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit.”

 

13.       In the case of Tariq Pervez v. The State reported as (1995 SCMR 1345), the Hon’ble Supreme Court has held that for giving benefit of doubt to an accused it is not necessary that there should many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.

 

14.       Above are the reasons for the short order dated 16.07.2019, whereby instant appeal was disposed of which reads as under:

 

“For the reasons to be recorded later on, criminal Appeal No.51 of 2018 is allowed. Conviction and sentence recorded by learned Special Judge Control of Narcotic Substance Thatta vide judgment dated 11.01.2018 are set aside. Appellant Lung son of Khamiso is present on bail, his bail bond is cancelled surety discharged.”

 

 

 

 

   JUDGE

 

 

 

Karachi.                                                                                             JUDGE

Dated:     .07.2019

                                                                                                                                               

Muhammad Tahir/PA*..