THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 251 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Nemo for appellant Ali Hussain @ Raju

Respondent : The State through Mr. Ali Haider Saleem, Additional Prosecutor General Sindh

Date of Hearing : 18.01.2023

Date of judgment : 18.01.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Ali Hussain @ Raju appellant was tried by learned VIII-Additional Sessions Judge/MCTC Karachi West in S.C.No.1231 of 2021 (FIR No. 488/2021 for offence under section 9(c) of the CNS Act, 1997 registered at P.S Pakistan Bazar). On conclusion of the trial, vide judgment dated 17.03.2022, appellant was convicted under section 9(c) of the CNS Act 1997 and sentenced to undergo rigorous imprisonment for 04 years and 06 months with fine of Rs.20,000/-. In case of default in payment of fine, he was ordered to undergo simple imprisonment for 05 months more. Appellant was extended benefit of Section 382-B Cr.P.C.

2. Brief facts leading to the filing of the appeal are that on 03.06.2021, SIP Shoukat Ali left PS along with his subordinate staff for patrolling duty. During patrolling at various places when police party reached at Muhajir Chowk, Ghaziabad at 0600 hours, where police found a person in suspicious manner, who was carrying shopper in his right hand. SIP apprehended him and on inquiry, he disclosed his name as Ali Hussain @ Raju. On personal search, SIP recovered one shopper from his right hand, it was opened wherein police officer found pieces of charas, which was weighed and found 1650 grams. On further personal search of the accused, police recovered Rs.500/- from his right side pocket. Mashirnama of arrest and recovery was prepared and case property was sealed at the spot in presence of mashirs PCs Mohsin and Shamim. Thereafter, accused and case property were brought to P.S Pakistan Bazar, where FIR was lodged against the accused on behalf of the state by SIP Shoukat Ali on 03.06.2021 at 0700 hours for offence under section 9(c) of CNS Act, 1997. During investigation, case property was dispatched to the chemical examiner, positive report was received. On the conclusion of investigation, final report was submitted against accused under section 9(c) of the CNS Act 1997.

3. Trial Court framed charge against appellant under the above referred section at Ex.2. Accused did not plead guilty and claimed trial. At trial, prosecution examined P.Ws complainant SIP Shoukat Ali, mashir PC Mohsin and I.O SIP Ashiq Ali, who produced positive chemical report and relevant record. Thereafter, prosecution side was closed.

4. Trial Court recorded statement of accused under Section 342 Cr.P.C at Ex.7. Appellant claimed his false implication in the present case and denied the prosecution allegations. Appellant neither examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defense.

5. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence minutely by judgment dated 17.03.2022, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeal against the conviction and sentences recorded against him.

6. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 17.03.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7. This appeal was filed on behalf of the appellant by Mr. Shamraiz Khan Tanoli advocate, today it was time fixed, counsel for the appellant was contacted by office on the mobile phone, despite that he did not appear. However, with the assistance of Addl. P.G, we have gone through the entire evidence so also impugned judgment. It appears that in this case prosecution has failed to establish before trial Court safe custody and safe transmission of the charas to the chemical examiner. According to the prosecution evidence, case property was brought to the police station on 03.06.2021 and through I.O it was sent to chemical examiner for analysis, but in this case neither Head Moharir has been examined nor entry of Register No.19 have been produced before the trial Court. So far safe custody of the charas at police station is concerned, it has not been established before the trial Court. The same cannot be used against the appellant. The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe hands is not established on the record, same cannot be used against the accused. Reliance is placed upon the case of Qaiser Khan vs. The State through Advocate General Khyber Pakhtunkhawa, Peshawar (2021 SCMR 363), wherein, the Honourable Supreme court has held as under:

“……The law in this regard is settled by now that if safe custody of narcotics and its transmission through safe hands is not established on the record, same cannot be used against the accused. Reliance in this regard can well be placed on the cases of Mst. Razia Sultana v. The State and another (2019 SCMR 1300) and The State through Regional Director, ANF v. Imam Bakhsh and others (2018 SCMR 2039).”

8. We have also noticed that P.W/PC/mashir during his examination replied that there was a slab of charas but in cross examination replied that there were 07 pieces of charas. Prosecution has no explanation for such ambiguity. According to the case of prosecution, appellant was arrested on 03.06.2021 at 6:00 a.m. and presence of 2/3 private persons has also come on record. Non-examination of those private persons would also be fatal to the case of prosecution, for the reason that appellant in his statement recorded under section 342 Cr.P.C has claimed enmity with the police officials. No doubt, evidence of police officials is as good as of private persons but when appellant claimed enmity with police officer, the Court would look into independent corroboration, which is lacking in this case. We have also noticed that there are major contradictions in the evidence of prosecution witnesses on material points and learned Addl. P.G could not explain those contradictions. For the above stated reasons, prosecution case has been found by us to be highly doubtful. Learned trial Court failed to appreciate evidence on settled principles of law.

9. Needless to mention that while giving the benefit of doubt to an accused 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, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted.” Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230), Muhammad Zaman v. The State (2014 SCMR 749) & Muhammad Mansha v. The State (2018 SCMR 772).

10. In view of above, appeal is allowed, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, he is acquitted of the offence, for which he was charged, tried and convicted by learned trial Court and he shall be released forthwith, if not required to be detained in any other custody case.

JUDGE

JUDGE