IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr.Appeal No. D-21 of 2020
Mr. Justice Omar Sial,
Mr. Justice Zulfiqar Ali Sangi,
Appellants SanaullahKakarand another,
Through Mr. Mohammad Shabir Rajput advocate a/w his Associate Mr. InamullahKhushk, advocate
The State: Through Mr. Muhammad Noonari, Deputy Prosecutor General.
Date of hearing: 15-04-2021&
Date of Judgment: 04-06-2021.
J U D G M E N T
Zulfiqar Ali Sangi, J. Through instant criminal jail appeal, the appellants SanaullahKakar and Mst. Alia Pathan have assailed the Judgment dated 29.02.2020, passed by the learned I-Additional Sessions Judge(MCTC)/Special Judge (C.N.S.), Shahdadkotin Special Narcotic Case No.53/2019 (Re: State V/s Sanaullah and another), being outcome of Crime No.58/2019 of P.S. Sijawal Junejo, for the offence U/S 9(c) of Control of Narcotic Substances Act, 1997, whereby the trial court has convicted the appellants U/S 265-H (ii) Cr.P.C, for committing an offence punishable under section 9(c) of C.N.S. Act, 1997, and sentenced them to suffer imprisonment for life with fine of Rs.500,000/-. In default of payment of fine, the appellants were directed to suffer S.I for two years. However, the Benefit of Section 382 PPC was extended to the appellants.
2. Brief facts of the prosecution case as per F.I.R lodged by complainant Inspector Aijaz Ali Massan are that on 20.11.2019, the complainant along with police party headed by him left Police Station under Roznamcha entry No. 03 at about 0900 hours for patrolling. During patrolling when they reached at Kot Lal Bux Mahessar Laro (curve) where they received spy information that a Car bearing registration No.ATM-280, Silver Colour carrying Charas was coming from Garhi Khairo road. On receipt of such spy information police party reached at Adam Khan Gopang Laro (curve), Garhi Khairo road and started snap checking. During snap checking police had got stopped that Car and apprehended the Car driver at 1015 hours in presence of mashirs namely HC-Deedar Ali Deenari and PC-Illahi Bux Lak. It was further alleged in the FIR that a woman was also sitting on the rear seat of the Car. On query, Car driver had disclosed his name as Sanaullah son of Shah WaliKakar Pathan resident of Ali NoorakSuleman Khel Taluka Gulistan District Qila Abdullah Baluchistan while female had disclosed her name as Mst. Alia wife of Muhammad Hanif Shah Pathan resident of Ali MuhallaSuleman Khel Taluka Gulistan District Qila Abdullah Balochistan. It was further alleged that on search of Car, police officer had secured 190 kilograms of Charas from its different cavities/places out of which two kilogram Charas was sealed separately for chemical analysis while the remaining Charas was also sealed in separate parcels. On personal search of male accused Sanaullah, Police Officer had recovered from him, his original CNIC and cash rupees two thousand. Police officer did not conduct personal search of woman because of non-availability of lady constable. However, he had arrested both of them in a case punishable under section 9 (c) of Narcotic Substances Act, 1997, under a memo of arrest and recovery. Police officer had also secured the Car. Hence the complainant lodged the above said F.I.R.
3. After completion of investigation, the investigating officer submitted charge sheet before the concerned court, whereby he had challaned the above named accused persons for facing their trial in the instant case. In compliance of Section 241-A Cr.P.C, the case papers were supplied to the accused persons. Formal charge was also framed against them at Ex.4, to which theypleaded not guilty and claimed to be tried. Their pleas had also been recorded by the trial court at Exh-4/A & Exh-4/B respectively.
4. The prosecution in order to prove its case, examined thefollowing witnesses:-
PW-01 Inspector Aijaz Ali Massan, author of FIR/complainant/arresting and investigating officer. His evidence was recorded at Exh-05. He in support of his evidence produced departure entry No.03, memo of arrest and recovery, entry No.07, FIR, entry No.08 & entry No. 09, memo of site inspection, letter to Chemical Examiner, Road Certificate, Extract of Register No.19, memo of personal search of female accused, entry No.04, entry No.12, entry No.25 and report of chemical examiner at Exh-05/A to Exh-05/O respectively.
PW-02 HC-Deedar Ali Deenari, he was the mashir of arrest and recovery. His evidence was recorded at Exh-06.
PW-03 LPC Ms. Zuhran Gopang, she had conducted personal search of lady accused Mst. Alia at police station in presence of Inspector/SHO Aijaz Ali Massan and other witness namely PC Ilahi Bux Lak. Her evidence was recorded at Exh-07.
5. Thereafter the prosecution had closed its side vide statement filed by the learned ADPP at Exh-08.Trial Court recorded statements of accused under section 342 Cr.P.C at Ex.9 and 10, wherein theyhave denied the prosecution allegations and claimed theirfalse implication in this case at the hands of police at the instance of influential persons of Kila Abdullah. They have further stated that nothing was recovered from them and their car and the police had foisted upon them the alleged Charas. However they did not opt to record their statements on oath and so also did not opt to lead evidence in their defence.
6. After assessment of the evidence, learned trial court has passed the above impugned judgment and awarded sentence to the present appellants/accused as mentioned above. Being aggrieved by and dissatisfied with the said judgment,the appellants/accused above named have preferred this criminal jail appeal.
7. Learned counsel for the appellants has contended that the appellantsareinnocent and have falsely been implicated in this case; that there is no any convincing evidence against the accused; that from 190 K.G, only 2 K.G charas were separated for sample as such no sample were taken from each slab; that the question of safe transmissionalso arises as the prosecution did not examine the concerned person through whom the charas was sent to chemical examiner and as per record the charas was sent under the letter of DSP but investigating officer did not record his statement hence the prosecution has failed to establish its case against accused because the police did not observe the required formalities while arresting the accused persons, making recovery, getting charas weighed, sealing the same, dispatching the same to chemical examiner, as such the case became doubtful. He has next argued that actually no charas was recovered from the body of accused persons and it was shown to have been recovered from the different cavities of the car for which police did not enquire about its ownership.In support of his case he has relied upon the case law cited as Muhammad Siddique versus TheState (2011 YLR 2261)[Karachi], The State Versus Imam Bakhsh and others (2018 SCMR 2039) andAmerZeb V/s The State (PLD 2012 SC 380).
8. LearnedAdditional Prosecutor General has submitted that prosecution has proved its case against the accused persons by producing cogent, sound and coherence evidence. He has further argued that the accused persons are involved in a heinous case and they have been arrested while they were carrying huge quantity of charas in a car; that there is no question about the receiving property as to whether such is same or not, therefore, it cannot be said that it was not a charas; however, he has submitted that the case of AmerZebV/s The State (PLD 2012 SC 380 ) is applicable in the present case; that during examination P.Ws stated that the property is same, which was not been challenged during cross-examination. He has further argued that the prosecution witnesses have fully corroborated each other and all the relevant documents were brought on record, therefore, the case against accused persons had been fully established. He has further argued that prosecution has also established that the charas had been dispatched to the chemical examiner by producing extract of the register No.19; that appellants were shown the property during the trial and that no specific suggestion was made whether the charas was foisted upon the appellants or not; that 188 K.Gs were sealed in 5 bags and no question asked during cross-examination, in other words it was not denied; it was the duty of the defence counsel that he should have asked the relevant question; that memo of recovery shows that the charas was in 1 K.G slabs; that no question was asked about the description of the packing of the charas. He has also placed his reliance on the case Ghulam Murtaza versus and another V/s The State (PLD 2009 Lahore 362).
9. We have heard learned counsel for the appellants and learned Additional Prosecutor General and have gone through the material available on the record with their able assistance.
10. On careful scrutiny of the evidence produced by the prosecution we are of the view that the prosecution has not proved the case against the appellants. The evidence produced by the prosecution is not reliable, trustworthy and confidence inspiring. We havenoticed major contradictions in the evidence of P.Ws, which are (a) Inspector/S.H.O P.S. Sijawal Junejo (complainant) has deposed in his cross-examination that he had prepared memo of arrest and recovery by putting it on writing pad while sitting on front seat of police mobile, while the mashir H.C Deedar Ali Deenari has deposed in his cross-examination that the S.H.O had authored memo of arrest and recovery by putting it on the investigation bag which was kept on bonnet of the mobile in the standing position.(b) Inspector/S.H.O P.S. Sijawal Junejo (complainant) has deposed in his cross-examination that he hardly took 8 to 10 minutes in making interrogation of both the accused persons, searching of male accused and search of car, while the mashir H.C Deedar Ali Deenari has deposed in his cross-examination that they took about 50 minutes at spot in completing all the formalities. (c) Inspector/S.H.O P.S. Sijawal Junejo, (complainant) has deposed in his examination-in-chief that remaining charas viz 188 Kilo Grams also sealed separately in five pieces of cloth but in his cross-examination he has deposed that there were 03 and half pieces/blocks were lying in the cloth parcel which were sent to chemical examiner, while the mashir H.C Deedar Ali Deenari has deposed in his cross-examination that the police officer had sealed two Kilogram charas for chemical analysis in a separate cloth parcel while the remaining charas was also Sealed in five cloth parcels at spot.The above-noted contradictions clearly indicate that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of arrest of accused and recovery of charas from the possession of appellants had occurred as alleged by the prosecution. Taking notice of the contradictions in the evidence of complainant and mashir, we are clear in our mind that the prosecution failed to prove its case against the appellants beyond shadow of reasonable doubt and the recovery has not been satisfactorily proved. Both the witnesses contradicted each other on material aspects of the case. No implicit reliance can be placed in view of aforesaid contradictions on the evidence of prosecution witnesses Reliance is placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein Hon'ble Supreme Court of Pakistan has held as under:-
"It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
11. The complainant and the mashir of the arrest and recovery have not deposed a single word about the child nor it was mentioned in any of the papers prepared by the police that child was with the appellants. The LPC Zuhran of Women Cell Kambar has stated in her cross-examination that child was also with the female accused and she has deposited her at Women Jail Larkana, Inspector/S.H.O P.S. Sijawal Junejo (Complainant) has denied this suggestion in his cross-examination that child aged about 5 to 6 years was also with the accused persons while they were arrested, this fact alone is sufficient to hold that the story was managed one and the recovery was not effected from the appellants.
12. As per the case of prosecution the property was sent to the Chemical Analyzer through PC Nadir Ali B No. 964 and the Prosecution not examined the said important witness PC Nadir Ali who brought the property at laboratory which cut the chain of evidence to prove the case against the appellants. The prosecution not proved the safe transmission of the property to the chemical examiner which create serious doubt in its case. Honourable Supreme Court in case of Mst. Razia Sultana V. The State and another (2019 SCMR 1300), has held as under:-
2. At the very outset, we have noticed that the sample of the narcotic drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to prove safe transmission of the drug from the Police to the chemical examiner. The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability making it unsafe to support conviction. Reliance is placed on State v. Imam Bakhsh 2018 SCMR 2039).
3. For the above reasons the prosecution has failed to establish the charge against the appellant beyond reasonable doubt, hence the conviction and sentence of the appellant is set aside and this appeal is allowed, setting the appellant at liberty unless required in any other case.
In another case of Zahir Shah alias Shat V. The State throughAdvocate General, Khyber Pakhtunkhwa (2019 SCMR 2004),HonourableSupreme Court has held as under:-
2. We have reappraised the evidence with the able assistance of learned counsel for the parties and have noticed at the very outset that the Police constable, bearing No.FC-688, who delivered the sealed parcel to the Forensic Science Laboratory, Peshawar on 27.2.2013 was not produced by the prosecution. This fact has been conceded by the learned law officer appearing on behalf of the respondents. This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. Reliance is placed on State v. Imam Bakhsh (2018 SCMR 2039).
13. The alleged recovery was effected from the appellants on 20-11-2019 and was sent to the chemical examiner on 22-11-2019 with the delay and the same delay has not been explained by the prosecution which too make the case doubtful coupled with the fact the (incharge of the malkhana) was not examined by the prosecution. As regards to the remaining property no person whose custody the property was, was examined by the prosecution to prove the safe custody. Reliance is placed on the case of Nazar Muhammad alias Nazroo V. The State (2018 YLR 1992), wherein this court has held as under:-.
The delay of two days in sending samples of chars to the chemical examiner cannot ignored since its safe custody at Malkhana was questioned which the prosecution had not answered by adducing the reliable evidence in order to prove the case against the appellant and the learned trial Court while passing the verdict against the appellant has ignored all the material points of the case.
14. After the reassessment of material available on record we found that in the present case there are also number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which 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, as has been held in the case of Tariq Pervez v. The State reported as (1995 SCMR 1345), wherein the Hon'ble Supreme Court has held as under:-
"The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, thenthe accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".
15. Thus based on the particular facts and the circumstances of the present case and by relying on the above precedents of the Apex Courts, we are of the view that the prosecution has failed to prove the case against the appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence. Therefore, we allow the instant jail appeal, set-aside the impugned judgment dated 29-02-2020, passed by the learned Additional Session Judge-I/ MCTC/ Special Judge (CNSA) Shahdadkot in Special Narcotics case No. 53 of 2019 arising out of FIR No. 58 of 2019, P.S Sijawal Junejo for offence under section 9 (c) CNS Act, 1997, and acquit the appellants Sanaullah s/o Shah WaliKakar and Mst. Alia w/o Muhammad Hanif Shah Pathan from the charges by extending them the benefit of the doubt. They shall be released forthwith if not required in another custody case.