IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Appeal No. D- 38 of 2023.

Present:

Mr. Justice Muhammad Saleem Jessar.

Mr. Justice Khadim Hussain Soomro.

Noor Zaman. …………...Appellant.

Versus

The State. ….….….Respondent.

Mr. Saeed Ahmed Bijarani, Advocate for appellant.

Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

Date of hearing: 20.12.2023.

Date of judgment/ short order: 20.12.2023.

Date of reasons: 22.12.2023.

Judgment

Muhammad Saleem Jessar, J: Through instant appeal, appellant Noor Zaman has impugned the judgment dated 01.06.2023, passed by learned 1st Additional Sessions Judge/ Special Judge (CNS), Kandhkot, in Special CNS Case No. 20 of 2023, Re; State v. Noor Zaman, arisen out of F.I.R No. 09 of 2023 P.S Tangwani, under Section 9 (c) of Control of Narcotic Substances Act, 1997, whereby he was convicted under Section 9 (c) of Control of Narcotic Substances Act, 1997, and sentenced to suffer R.I for nine years and to pay fine of Rs.80,000/- and default in payment of fine to suffer further S.I for two years. However, the appellant has been extended the benefit of Section 382-B Cr.P.C.

2. The prosecution’s case as depicted in para 2 of the impugned judgment, read as under:

“The facts of the prosecution case are disclosed in F.I.R lodged by ASI Nindao Khan Gujrani are that on 25.02.2023, he along with other staff members namely PC Shabir AHm3ed, PC Abdul Ahad, DPC Abdul Lateef left P.S under entry No.21, at 1600 hours in police mobile for patrolling. While patrolling he received spy information that one person having black color shopping bag containing charas is available near Haibat Shaheed Phatak. Complainant shared such information with his staff members and proceeded towards pointed place. At about 1700 hours they arrived near the Haibat Shaheed Phatak, where they saw that a person was standing on eastern side having black color shopping bag, who on seeing police in police mobile and uniform tried to run away. presuming his movement suspicious, police party stopped their vehicle, alighted, chased and apprehended him along with black color shopping bag after covering distance of about 15/20 paces along with black color shopping bag. Complainant took the shopping bag in his possession, opened and found two bars of charas in it wrapped with yellow color transparent plastic sheet. Complainant smelled it and seemed charas. Complainant engaged PC Shabir and PC Abdul Ahad mashirs. On query the apprehended person disclosed his name as Noor Zaman son of Sadardin by caste Gulato, resident of Aggan Khan, Taluka Tangwani. He further disclosed that he smoke and sells the charas. Complainant got taken out the investigation kit from the police mobile and weighed the charas on digital balance which became 1120 grams. Then conducted body search of the accused whereupon 02 currency notes of rupees one hundred were recovered from his right side pocket. Thereafter, the said charas was sealed on spot and such mashirnama of arrest and recovery was prepared there in presence of mashirs PC Shabir Ahmed and PC Abdul Ahad and their signatures were obtained on it. Thereafter, they returned back to P.S along with accused and case property, where he lodged F.I.R on behalf of the State.”

3. The learned trial Court framed the charge against appellant at Ex.02, to which he pleaded not guilty and claimed to be tried. Then, in order to prove the charge against the appellant, the prosecution examined complainant ASI Nindao Khan Gujrani art Ex.3; he produced DD entries No.26 and 27; mashirnama of arrest and recovery and F.I.R. PW/ Mashir PC Shabir Ahmed Dahani was examined at Ex.4; he produced mashirnama of site inspection. Dispatch Rider PC Hazoor Bux Malik was examined at Ex.5; he produced R.C No.34. Investigation officer SIP Abdul Rehman Nindwani was examined at Ex.6; he produced entry No.6 of Register No.19, D.D entries No.32, 5, 32, 14; letter to SSP seeking permission to sent case property to FSL, Chemical Report. Incharge of Malkhana WHC Akhtiar Ali was examined at Ex.7; he produced photocopy of entry No.6, of register No. 19. Thereafter, learned Prosecutor closed the side of prosecution vide statement Ex.9.

4. The statement of the appellant/ accused was recorded under Section 342 Cr.P.C at Ex.9, in which he denied the allegations of the prosecution leveled against him. He claimed his innocence and false implication in this case by police. However, he did not examine himself on oath, but led evidence of one Bagh Ali as defence witness.

5. After hearing the counsel for the parties, the trial Court convicted and sentenced the appellant as mentioned in the paragraph No.1 of this judgment.

6. Learned counsel for the appellant mainly argued that the judgment passed by the trial Court is against the law, facts and equity and liable to be set aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial consisted of only police officials, who were not properly assessed and evaluated by the trial Court, and the evidence is insufficient to warrant the conviction of the appellant. Per learned counsel, there is a delay in sending the alleged samples to the Chemical Examiner; therefore, tampering with the same cannot be ruled out. It is further contended by the learned counsel that the trial Court has erred in concluding that the alleged recovery was effected from the accused in the mode and fashion described by the prosecution and that there are some important and vital contradictions in the evidence of the prosecution witnesses, which create doubt. Lastly, he has prayed for setting aside the impugned judgment and acquittal of the appellant.

7. Learned D.P.G. opposed the grant of appeal on the ground that the prosecution had fully established its case by producing trustworthy ocular as well as circumstantial and documentary evidence and that no malafide or ill will was alleged or proved against the prosecution for false implication of the appellant.

8. We have considered above contentions of the learned counsel for the appellant and learned D.P.G., and have gone through the entire evidence very carefully.

9. It appears that, the prosecution witnesses examined at trial are police personnel and no any independent person has been cited or examined by prosecution as mashir/ witness, though it is claim of the police that they received information through spy that accused is having in his possession the contraband charas at particular place, even then they did not associate any independent person to witness the recovery of contraband charas. We are of the view that either a private witness ought to be associated, or some convincing reasons should be given for non-associating a private witness in the recovery proceedings. Though, the evidence of police officials is as good as others, but in a case, where police was in advance information about presence of accused at site having contraband charas, and prosecution failed to join any independent witness, in such circumstances evidence of police officials loses its sanctity and evidentiary value.

10. It further appears that, as per contents F.I.R the alleged incident took place at 1700 hours. The complainant and PW/ Mashir have also affirmed this fact in their statements that at 1700 hours the incident happened. The contents of F.I.R and mashirnama show that the police party reached at the spot at 1700 hours and saw a person, who on seeing police party tried to escape, as such police party stopped their vehicle, got down and then apprehended the accused while chasing and covering distance of about 15/20 footsteps; taken shopper in their possession; opened and checked the shopper, which was found containing charas; enquired his name; weighed the charas; took personal search of the accused and recovered cash of Rs.200/-, then sealed the charas and it was thereafter that the mashirnama of arrest and recovery was prepared. Definitely, all this long process must had taken sufficient time, but the mashirnama shows time of its preparation, to be the same time, i.e. 1700 hours.

11. Record further reveals that alleged recovery of charas was effected on 25.02.2023 and it was sent to Laboratory through P.C Hazoor Bux on 27.2.2023, with delay of two days and such delay has not been explained. It has also not been brought on record that it was in safe custody of the Investigating officer of the case and there was no chance of tampering. Even otherwise, P.C Hazoor Bux has also not deposed any single word with regard to keeping of contraband charas during intervening period of two days in safe custody. As such, it is concluded that the safe custody and safe transmission of the contraband material was compromised.

12. Furthermore, there are material contradictions in evidence of the prosecution witnesses in respect of very crucial and vital points. Complainant ASI Nindao Khan in his cross-examination deposed that after leaving police station they went to Station, Gahno Bridge and Tangwani city; whereas PW/ PC Shabir Ahmed in his cross-examination deposed that they went to Gahno Bridge, City Tangwani and Haibat Shaheed link road. Complainant in his cross-examination deposed that, he asked 2/3 private persons to act as mashir, whereas PW Shabir Ahmed contradicted complainant by deposing that complainant did not ask any private person to act as mashir. Complainant deposed that, he saw accused from distance of 15/20 paces, whereas PW Shabir Ahmed deposed that I saw accused from distance of 20/30 paces. Complainant deposed in his cross-examination that, he apprehended accused first, while PW Shabir Ahmed deposed that, he apprehended the accused. Complainant deposed that, driver PC Abdul Latif brought investigation-kit from Police Mobile, whereas PW Shabir Ahmed deposed that PC Abdul Ahad brought investigation-kit from the police mobile. Complainant deposed in his cross-examination that, they left the place of arrest and recovery at 1800 hours; while PW Shabir Ahmed deposed that we returned to police station at 1700 hours. As per cross-examination of complainant, they had gone for site inspection in a private car and it was a taxi-car, but PW Shabir Ahmed has contradicted him by deposing that they had gone for site inspection in a private car, which belonged to him. Complainant deposed that, I.O had asked 4/5 private persons to act as mashirs; whereas PW Shabir Ahmed deposed that, I.O didn’t ask any private person to act as mashir of site inspection. Complainant deposed in his cross-examination that place of arrest was seen by I.O within 5/6 minutes, whereas PW Shabir Ahmed deposed that, I.O consumed about 10/15 minutes in seeing the place of arrest and recovery.

13. These glaring contradictions in evidence of prosecution witnesses prove that the evidence brought on record by prosecution against appellant is not trustworthy and inspiring confidence, and it cannot be relied upon. Perusal of above referred evidence shows that both the witnesses are not on same or one line with each other on material points, which creates doubt regarding authenticity of the prosecution evidence. And, in view of these glaring contradictions in evidence of prosecution witnesses, their evidence cannot be relied upon and cannot be made basis for awarding sentence.

14. Moreover, it has also come on record that, through defence plea that on 22.2.2023 police party raided house of appellant; took away cattle etc. and arrested appellant Noor Zaman and he was wrongfully confined in police station, as such on next day i.e. 23.2.2023, brother of appellant, namely, Bagh Ali (examined as defence witnesses) filed an application under Section 491 Cr.P.C before learned Sessions Judge Kashmore @ Kandhkot and raid was conducted by a Judicial Magistrate but due to leakage of information raid failed and appellant was ultimately booked in the instant case, when appellant party failed to pay gratification demanded by police. In this regard, copies of application under Section 491 Cr.P.C, containing order for conducting raid and its disposal order dated 24.2.2023 were placed on record and exhibited. As such, in view of the discrepancies in the prosecution case as noted above, particularly in view of the defence plea viz. arrest of the appellant from his home; his illegal confinement and filing of an application under Section 491 Cr.P.C, the question about accuracy and reliability upon the prosecution version creates doubt upon prosecution story. In these circumstances, the defence plea taken by the appellant appeals to a prudent mind and appears to be more confidence when it is juxtaposed with the prosecution version.

15. The above factors of non-associating any independent person in recovery proceedings; mentioning of same time of preparation of the mashirnama and happening of alleged incident; sending the samples to laboratory with delay of two days and material contradictions in evidence of witnesses, so also the defence plea prove that the entire case is cooked-up at police station. In legal proceedings, such discrepancies can be crucial, they have created very serious doubt about the credibility of the evidence presented by the prosecution and established it to be highly doubtful. As such, in presence of these irregularities and recklessness, mere evidence of police witnesses cannot be relied upon.

16. In the circumstances discussed above, we are of the considered view that the prosecution has failed to prove it’s case against appellant beyond any reasonable doubt and it is well settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances. If a single circumstances creates reasonable doubt in the prudent mind, then its benefit has to be given to the accused not as a matter of grace or concession, but as the matter of right. This dictum is laid down in the case of Tariq Pervez vs. The State (1995 SCMR 1345).

17. For the foregoing reasons, the conviction and sentence awarded by the learned trial Court against appellant Noor Zaman is not sustainable. Consequently, the appeal was allowed by short Order dated 20.12.2023, whereby the impugned judgment was set-aside and appellant was acquitted of the charge. These are the reasons for the short order.

Judge

Ansari