IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No. S-49 of 2020
Appellant Muhammad Ali Abro,
Through Mr. Athar Abbas Solangi,
Advocate.
The State: Through Mr. Muhammad Noonari,
D.P.G for the State.
Date of hearing: 25-01-2021
Date of Judgment: 25-01-2021
J U D G M E N T
Zulfiqar Ali Sangi, J.Through instant criminal appeal, the appellantMuhammad Ali Abro, hasassailed the judgment dated 01.07.2020, passed by the learned Sessions Judge, Larkana in Sessions Case No.234/2020, re: State V/s Muhammad Ali, culminated from Crime No. 05/2020 of P.S. Civil Lines Larkana, for the offence under Sections 269,270,337-J P.P.C, whereby the trial court has convicted the appellant U/S 270 P.P.C and sentenced him to undergo rigorousimprisonment for one year and also to pay fine of Rs.50,000/, in default to pay fine, the appellant was directed to suffer S.I for three months more, the appellant was also convicted U/S 337-J P.P.C to suffer three years R.I. The appellant was also given benefit of Section 382-B Cr.P.C.
2. The brief facts of the prosecution case as per FIR lodged by the complainant A.S.I. Imdad Hussain Shaikh of CIA Larkana at P.S. Civil Lines Larkana on 26.01.2020 at 1320 hours are that he along with police party arrested the appellant from main road of Loco-Shed near gate of police Lines, Beat No.4 Civil Hospital and secured 02 sacks containing 35-packets of Safeena Gutka Supari each, lying on the rear seat near the driving seat of said car and he malignantly spread the infection of diseases dangerous to life as it contains intoxicants/unwholesome drugs. Hence the complainant lodged the above F.I.R. against the appellant.
3. After completion of investigation, the challan was submitted against the appellant/accused. The case papers were supplied to him, vide Ex.01. The charge was framed and read over to appellant at Ex.02, to which he pleaded not guilty and claimed to be tried.
4. The prosecution in support of its case, examined PW-01 ASIP Imdad Hussain, being complainant, he produced daily diary entry No.8, mashirnama of recovery & arrest, & FIR, vide Ex.03/A to 03/C respectively. The PW-02 ASIP Zulfiqar Ali, being I.O, was examined at Ex.04, he produced daily diary entries No.13 & 14, mashirnama of site inspection, copy of letter sent to DHO, copy of letter issued by DHO Larkana, copy of letter sent to Excise Office, R.C No.27 and positive report of Govt. Public Analyst Rohri, Verification of Vehicle letter of Deputy Director Senior Excise & Taxation Officer M.R.A Larkano at Ex.04/A to 04/I respectively. Lastly, PW-03 PC Muhammad Aslam, being mashir, was examined at Ex.05. Thereafter side of the prosecution was closed by the learned I/C D.P.P for the State, vide his statement at Ex.06.
5. Trial Court recorded statement of accused under section 342 Cr.P.C at Ex.07, wherein he denied the prosecution allegations levelled against himbut stated that one day prior to the incident he was returning to his house at village Gerello from the vegetable Market Larkana when he reached on Qingqi at Attock Petrol Pump Allahabad, he was apprehended by CIA Police and drawn Rs.1,50,000/- from his body search and took him to CIA Centre, when he refused to withdraw from his cash they involved him in this case, otherwise he is innocent and victimized by the CIA Police. He has neither examine himself on oath as required under section 340(2)Cr.P.C nor led any evidence in his defence,
6. After assessment of evidence, learned trial court has passed the above impugned judgment and convicted the appellant/accused as stated above. Being aggrieved by the said judgment, the appellant above named has preferred the instant criminal appeal.
7. Learned counsel for the appellant has contended that the learned trial court has erred while passing the impugned judgment by not appreciating the material contradictions between the evidence of the complainant and other official witnesses; that learned trial Judge has erred in not considering the factual position of the case that alleged incident taken place at broad day time at a thoroughfare road, but the complainant failed to associate any private person with the arrest and recovery proceedings, which is clear violation of Section 103 Cr.P.C; the trial Judge has not considered the admission of complainant that he stayed for about 45 minutes at the place of vardhat and hold Nakabandi but mashir in his cross had contradicted by deposing that they spent 20/25 minutes in Naka Bandi; that there is nothing on record against the appellant that for what purpose he was having alleged Gutka; that all the eye witnesses have made material contradictions in prosecution case; that the impugned judgment is based on mere presumptions and conjectures and is not based on any independent corroborative evidence; that the evidence of all the P.Ws is materially contradicted to each other and was not trustworthy of reliance to form the basis of the conviction of the appellant. In the end learned counsel for the appellant has prayed for acquittal of the appellant/accused.
8. On the contrary, learned Deputy Prosecutor General has supported the impugned judgment and further submitted that prosecution has proved the case against the appellant beyond a reasonable doubt; that all the eye witnesses have supported the case of prosecution and there are no material contradictions in their evidence; that chemical report in respect of the Gutka is positive; that no enmity was suggested to falsely implicate the appellant in the present case; lastly, he prayed that the appeal of the appellant may be dismissed.
9. I have heard the learned counsel for the appellant, learned D.P.G. and have gone through the material available on the record with their able assistance.
10. Prosecution examined PW-01 ASIP Imdad Hussain (Complainant), who deposed that on 26.01.2020 at 1200 hours he alongwith PC Muhammad Aslam and PC Ameer Bux left Police Station in police mobile driven by DPC Umaid Ali vide entry No.08 (Ex.03/A) for Illaqa Gashat. After different places they started snap checking at Loco-Shed near gate of police-lines. At 1320 hours they saw a silver car was coming from GhintiPhatak, by seeing the police it was reversed but they stopped it and apprehended the driver. On inquiry he disclosed his name as Muhammad Ali Abro. Complainant secured 12-notes of Rs.5000/- and 10-notes of Rs.1000/- from personal search of accused Muhammad Ali Abro. He also secured 02-sacks lying on side seat of the car. He opened both the sacks and found 35 packets of SafinaGhukta in each sack. He sealed 01-packet from each sacks for chemical examination. He also sealed both sacks of Gutka at the spot. He took the custody of car bearing No.303 GLI of Sliver Colour. Thereafter, he prepared such mashirnama (Ex.03/B) at the spot in presence of mashirs PC Mohammad Aslam and PC Ameer Bux. They went to Police Station Civil Line where he lodged such FIR (Ex.03/C). Thereafter, he alongwith I.O Zulfiqar Ali and same staff left Police Station for site inspection. The I.O inspected the place of vardat on his pointation and prepared such mashirnama.
11. Prosecution has examined PW-02 ASIP Zulfiqar Ali (I.O of the case), who has deposed that on 26.01.2020 he received the FIR of this case, custody of accused, case property & mashirnama of arrest and recovery from ASIP Mushtaq Ali for investigation. On the same date, he handed over the sacks of Ghutka to WASI Sanwal Khan for keeping the same in Mall Khana under entry No.13 at 1520 hours (Ex.4/A). On the same date, he alongwith same staff and complainant left Police Station in police mobile driven by DPC Umed Ali for site inspection vide entry No.14 at 1530 hours (Ex.4/B). He inspected the place of vardat on the pointation of complainant and prepared such mashirnama (Ex.04/B) in presence of mashirs. He recorded 161 Cr.P.C statements of PWs at Police Station. On 29.01.2020 he sent the 02- sealed packets of Gutka to Govt. Public Analysis Food Laboratory Sukkur at Rohri for report through PC Riaz Hussain under R.C No.27 (Ex.04/G). He also recorded 161 Cr.P.C statement of PC Riaz Hussain. He received report (Ex.04/H) from Govt. Public Analyst Rohri. On 17.02.2020, he also received verification report (Ex.04/I) issued by Excise Office Larkana. After completion of investigation he submitted charge sheet accordingly.
12. Prosecution has also examined PW-03, PC Muhammad Aslam (mashir of the case),who has deposed that on 26.01.2020 at 1200 hours he alongwith ASIP Imdad Ali Shaikh (complainant) and PC AmeerBux left Police Station in police mobile driven by DPC Umaid Ali vide entry No.08 for Illaqa Gashat. After different places they started snap checking at Loco-Shed near gate of police-lines. At 1320 hours they saw a silver car was coming from GhintiPhatak, by seeing the police it was reversed but they stopped it and apprehended the driver. On inquiry he disclosed his name as Muhammad Ali Abro. The complainant secured 12-notes of Rs.5000/- and 10-notes of Rs.1000/- from personal search of accused. The complainant also secured 02-sacks lying on side seat of the driver seat. The complainant opened both the sacks and found 35-packets of SafinaGhukta in each sack. The complainant sealed 01-packet from each sacks for Chemical Examination. He also sealed both sacks of Gutka at the spot. They took the custody of car bearing No.AUE/303-GLI of Sliver Colour. Thereafter, complainant prepared such mashirnama (Ex.03/B) at the spot in their presence. They brought the accused and case property to Civil Line Police Station where ASIP lodged such FIR. On the same date at 1530 hours, he alongwith ASIP/ I.O Zulfiqar Ali Kalhoro and same staff left Police Station for site inspection where he inspected the place of vardat on the pointation of complainant and prepared such mashirnama (Ex.04/C).
13. It is observed that the recovery as alleged by the prosecution was effected from the appellant on 26-01-2020 and the parcel was sent to the chemical examiner on 29-01-2020 through R.C dated: 29-01-2020 for which no plausible explanation was furnished by the prosecution and the person who brought the property to the chemical examiner was also not examined by the prosecution to explain that where the property was for those three days. This fact alone is sufficient to disbelieve the recovery alleged by the prosecution.
14. The report of chemical examiner showed that 02 packets of Sufina Gutka were received at the laboratory, whereas R.C dated: 29-01-2020 showed that both the (Two) sacks containing 35 packets each were sent for chemical examination. In the R.C there is nothing mentioned about the two packets which were separated one from each sack at the time of recovery for chemical examination and were sealed separately, thus the entire case of prosecution become doubtful.
15. All the witnesses are on same line that police recovered two sacks containing 35 packets in each and they separated one pocket from each sack for chemical examination and sealed the remaining pockets in same sacks. Police also sealed both two pockets which were separated from each sack for chemical examination. From the evidence of all these witnesses it is clear that only 34 pockets were sealed in each sack. The mashirnama of arrest and recovery so also FIR disclosed the same facts about the recovery and sealing. On careful consideration of evidence of the PW-1 Complainant it come on record that the sacks were de-sealed on the request of the learned I/C DPP for the state before the trial court and were found 35 pockets of Safina Gutka in each sack. Chemical examiner's report also showed that two pockets were received at laboratory for the test. When the evidence of PW-1 is considered with the chemical examiner's report it creates very serious doubt about the recovery of alleged Safina Gutka and if those pockets which were sent for chemical examination are included in the property brought before the court and was de-sealed it become 36 pockets in each sack which was not the case of prosecution.
16. It is by now well settled that the prosecution is duty bound to prove its case beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence. It is also settled by now that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction. Consequently the appeal is allowed and the Judgment dated 01-07-2020 passed by the learned Session Judge Larkana in session case No. 234/2020 re State V/S Muhammad Ali, being outcome of Crime No. 05/2020 of P.S Civil Lines. Larkana, U/S 269, 270, 337-J PPC is hereby set-aside and the appellant name above is acquitted form all the charges. He is present on bail, his bail bond is cancelled and surety furnished by him is also discharged.
17. The above appeal is disposed of in the above terms.
JUDGE