IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 207 of 2006
Present: Mr. Justice Rahmat Hussain Jafferi
Justice Mrs. Yasmin Abbasey, JJ
Date of Hg : 29.11.2006
Appellant : Muhammad Hanif @ Shola through Mr. Muhammad Rauf, Advocate.
Respondent : The State through Mr. Habib Ahmed, Assistant Advocate General.
RAHMAT HUSSAIN JAFFERI, J: Brief facts giving rise to the present appeal are that on 14.10.2004 at 01:20 A.M. the complainant Gul Muhammad Mehar, Incharge A.D.R.C. Jamsheed Town, Karachi alongwith his subordinate staff intercepted motorcycle bearing registration No.KAX-1705 on the road near Bus Stop, Ashraf Colony, Mahmoodabad, Karachi. The appellant was driving the motorcycle. The complainant conducted his personal search and secured a packet from the folds of his shalwar which contained heroin powder of one kilogram. The complainant also found a packet hanging on the left side handle of the motorcycle. The said packet was opened which contained four packets of charras. The charras was weighing and its weight came to be four kilograms. 10 grams from each packet of heroin and charras were separated making them five samples for Chemical Analyzer’s report. The samples and remaining property were sealed. Such mashirnama was prepared. The complainant prepared a statement which was sent to Mahmoodabad Police Station for incorporating it in 154, Cr.P.C. book. In the said statement the complainant directed the concerned police to send the FIR to him for investigation. After usual investigation the appellant was challaned in the Court.
The Learned Judge, Special Court No.I (C.N.S) Karachi tried the appellant, convicted him for offence punishable under Section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to suffer R.I. for 10 years and fine of Rs.200,000/- or in default thereof to suffer R.I. for two years with benefit of Section 382-B, Cr.P.C. under the impugned judgment dated 28.3.2006.
We have heard advocate for the appellant, AAG for the State and perused the record of this case very carefully.
The learned advocate for the appellant has stated that there are material contradictions in the evidence of the witnesses; that the samples prepared at the place of incident were different from the samples examined by the Chemical Analyzer, as the weight of the charras does not tally with each other, therefore, the Chemical Analyzer’s report carries no weight.
The learned AAG has stated that the contradictions are minor in nature. However, he has admitted that there is difference in the weight of charras in the samples prepared at the place of incident and the charras received by the Chemical Analyzer, but he tried to clarify the position by stating that the Investigation Officer had old weighing scale, whereas Chemical Analyzer had computerized scale, therefore, such discrepancy is bound to occur. He has supported the impugned judgment.
We have given due consideration to the arguments, gone through the evidence with the assistance of learned advocate for the appellant and found that at the trial the prosecution examined three witnesses viz. (1) PW-1 complainant Gul Muhammad Mehar, (2) PW-2 Investigation Officer Akhtar Aziz and (3) PW-3 Mashir Panoo Khan. The complainant and mashir gave the same details of the incident as mentioned in the earlier part of the judgment. The complainant further admitted that one packet of 10 grams of heroin and four packets of 40 grams of charras each containing 10 grams were prepared, sealed and sent to the Chemical Analyzer. He further deposed that the property was weighed with computerized weighing scale. The mashir also gave the same details of the weight of the charras and heroin, but stated that the weighing scale was ordinary and the property was weighed with weight of one kilogram. Thus, on the question of weight of the property both the witnesses are unanimous, but with regard to weighing scale their statements are contradictory to each other. It is not known which of the two witnesses gave correct statement with regard to weighing scale, as such, two probabilities have emerged from the prosecution evidence. The learned advocate for the appellant has emphasized that Court should accept the statement of the complainant, as it is favouring the accused. It is well-settled principle of law that if two theories of probabilities have emerged from the evidence then the theory favourable to the accused has to be accepted.
We have examined the Chemical Analyzer’s report and found that the Chemical Analyzer received five packets, one containing of heroin powder and four contained charras. Net weight of heroin was 10.100 grams, whereas net weight of charras in four packets was 74.82 grams. Thus, there is vast difference between the weight of the charras prepared at the place of incident and received by the Chemical Analyzer. Few grams of difference could have been taken as human error, but the difference is about double the property weight at the place of incident. Furthermore, according to the complainant, the property was weighed with computerized weighing scale, therefore, there should have been no difference of the weight when the property was received from the Chemical Analyzer, as such, it has created doubt with regard to the preparation of samples at the scene of incident and received by the Chemical Analyzer. Learned advocate for the appellant was right in saying that the property received by the Chemical Analyzer was different from the property prepared at the scene of incident. As a doubt has been created with regard to the property, therefore, it has to be resolved in favour of the appellant, hence the Chemical Analyzer’s report in the peculiar circumstances of the present case cannot be safely relied upon.
Apart from the above facts, the complainant stated that he signaled the motorcycle to stop, but he accelerated and then motorcycle was stopped at some distance by another party of the police. Whereas this statement has not been supported by the mashir as he deposed that the motorcycle was stopped on the signal of the complainant. Furthermore, the interest of the complainant to investigate the case can very well be judged from the fact that when he prepared his statement at the place of incident for sending it to the police station for registration of the case, he clearly mention that the FIR might be sent to him for investigation, though he was not authorized to investigate the case unless ordered by the superior officer. It appears that in the morning complainant had managed to obtain the authority from TPO for investigating the case. It is not out of place to mention here that the complainant neither produced the appellant nor property before Duty Officer of PS Mahmoodabad when the FIR was registered or subsequent to that till he received authority letter to investigate the case. It was specifically directed by the Superior Courts in various authorities that the investigation should not be entrusted to the officer, who detected the crime in order to avoid apprehension in mind of the accused that the case was not investigated by independent officer, but inspite of the said directions as conveyed to the concerned authority vide Judgment in a case of Taj Wali Vs The State (PLD 2005 Karachi 128), but the superior police officers did not care to follow the directions of this Court. We once again direct all the concerned authorities to desist from entrusting the investigation to the same police officer, who has detected the crime.
After considering the material available on the record, we are of the considered view that the case of the prosecution is highly doubtful against the appellant, therefore, he is entitled to the benefit of doubt, which was accordingly given to him while passing the short order dated 29.11.2006, by which we had allowed the appeal. These are the reasons of the said short order.
Karachi
Dated 06.12.2006 JUDGE
JUDGE