THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeals No. 142 and 160 of 2023
Present: Mr.
Justice Naimatullah Phulpoto
Justice Mrs. Kausar Sultana Hussain
Appellants : Punhoon Jamali through M/s Qazi
Inamullah and Babar Ishaque advocates
Abdul
Ghafoor through M/s. Zakir Hussain Bughio and Ghulam Mustafa Katpar advocates
Respondent : The State through Mr. Ali Haider Saleem Addl. P.G
Date of Hearing : 09.08.2023
Date of judgment : 09.08.2023
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Punhoon and Abdul Ghafoor appellants
were tried by learned Special Judge (CNS), Thatta for offence under Section 9(c)
of CNS Act 1997. After regular trial, vide judgment dated 05.02.2023, appellants
were convicted under section 9(c) of CNS Act 1997 and sentenced to 10 years R.I
each and to pay fine of Rs.100,000/- each and in default in payment of fine, they
were ordered to undergo S.I for 06 months. Appellants were extended benefit of
section 382(b) Cr.P.C.
2. Brief facts of the prosecution case as
disclosed by SIP Abdul Mutalib in his evidence are that on 18.10.2022, he left
police station along with his subordinate staff for patrolling duty and
received spy information that at Faizo Hotel appellants were carrying black
colored shoppers in their hands and were standing at Ladhya stop for conveyance.
Police party proceeded there and saw both the appellants on head lights of
vehicle at about 2330 hours. They were caught hold by the police; from personal
search of appellant Punhoon, four big pieces of charas weighing 2000 grams were
recovered; from personal search of appellant Abdul Ghafoor, three big pieces of
charas weighing 1500 grams were recovered. Thereafter, mashirnama of arrest and
recovery was prepared in presence of mashirs ASI Ghulam Haider Janwari and PC
Jameel Ahmed, case property was sealed at spot and brought accused and case
property to the police station where FIR vide Crime No. 103/2022 under Section
9(c) of CNS Act, 1997 was registered at P.S Mirpur Sakro on behalf of state.
3. During investigation, charas was sent
to chemical examiner and positive report was received. On conclusion of
investigation, final report was submitted against the appellant under the above
referred section. FIR/case was entrusted to SIP Ali Khan Rahojo for further
investigation.
4. Trial Court framed Charge against appellant
under the above referred sections at Ex.03, to which they pleaded not guilty
and claimed trial.
5. At trial, prosecution examined three witnesses
and positive report of the chemical examiner was produced in evidence. Thereafter,
prosecution side was closed.
6. Trial Court recorded statement of
accused/appellants under Section 342 Cr.P.C at Ex.9 & 10 respectively. Appellants
claimed their false implication in the present case and raised plea that they
have been implicated in this case falsely at the behest of one Iqbal Khaskheli
as an amount of Rs.150,000/- was outstanding against him. Appellants neither examined
themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution
allegations nor led any evidence in their defence.
7. Trial Court after hearing the learned
counsel for the appellants, prosecutor and while examining the evidence by
judgment dated 25.02.2023, convicted and sentenced the appellants as stated
above. Hence, the appellants being dissatisfied with the judgment of conviction
against him has filed instant appeals.
8. The facts of the case as well as
evidence produced before the Trial Court find an elaborate mention in the
judgment dated 25.02.2023 passed by the Trial Court and therefore, the same may
not be reproduced here so as to avoid duplication and unnecessary repetition.
9. Learned advocates for the appellants
made the following submissions:
(i)
That
WHC Abdul Hussain/Incharge Malkhana of PS Mirpur Sakro has not been examined by
the prosecution at trial.
(ii)
PC
Jameel Ahmed had taken narcotics substance to chemical examiner has not been
examined by the prosecution at trial.
(iii)
That
there are material contradictions in the evidence of the prosecution witnesses
on the point of presence of private persons at the place of recovery.
(iv)
That
there is overwriting in entry No.42 at Ex.No.6/D, prosecution has failed to
explain it.
(v)
That
safe custody and safe transmission of the charas to the chemical examiner have
not been established by the prosecution before trial Court.
(vi)
That
defence plea raised by the appellants before the trial Court has not been
discussed by the trial Court while assessing the prosecution evidence.
In
support of their contentions reliance has been placed upon the cases reported
as Akthar Gul vs. The State ( 2022 SCMR
1627), Abdul Ghani vs. The State (2022 SCMR 2121) and Lal Jan vs. The State
(2023 SCMR 1009).
11. Learned Addl. P.G for the state argued
that appellants were arrested by the police officials on 18.10.2022 at Ladhya
stop and from their possession charas was recovered, report of chemical
examiner was positive. He further argued that evidence of police official was
reliable and confidence inspiring. Lastly, argued that prosecution has proved
its’ case against the appellants and prayed for dismissal of the appeals.
12. After hearing learned counsel for the
parties, we have re-examined the entire prosecution
evidence minutely and have come to the conclusion that prosecution had failed
to prove safe custody and safe transmission of the charas to the chemical
examiner for the reasons that appellant were arrested on 18.10.2022 at Ladhya
stop, accused and case property were brought to the police station where, the
case property was handed over to WHC Abdul Hussain of police station for its’
safe custody at Malkhana of P.S. Admittedly, incharge Malkhana has not been
examined by the prosecution. Record further reflects that as per chemical
report (Ex.6/E), the sealed sample parcel was delivered in the office of
chemical examiner by PC Jameel Ahmed, he has also not been examined by the
prosecution. Non-examination of these two material witnesses draws an adverse
presumption against the prosecution under Article 129(g) of Qanun-e-Shahadat
Order, 1984, so safe custody and safe transmission of the sample parcel to the
chemical examiner has not been proved by the prosecution. In the case
reported as Said Wazir and another vs.
The State and others (2023 SCMR 1144), the apex Court has held as under:
“3. Heard and perused the record.
It has been observed by us that recovery was effected on 09.06.2016 whereas
sample parcels were received in the office of chemical examiner on 13.06.2016
without any plausible explanation as to where remain these sample parcels from
09.06.2016 to 13.06.2016. The safe custody and safe transmission of the sealed
sample parcels has also not been established by the prosecution as Moharrar,
who kept the sample parcel in the Malkhana and the concerned Constable (FC No.
1374), who delivered the sample parcel to the office of Forensic Science
Laboratory, were not produced by the prosecution. Even the prosecution failed
to prove the ownership of the vehicle. This court in the cases of Qaiser Khan
v. The State through Advocate General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR
363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State
through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039),
Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State
(2012 SCMR 577) has held that in a case containing the above mentioned defect
on the part of the prosecution, it cannot be held with any degree of certainty
that the prosecution had succeeded in establishing its case against an accused
person beyond any reasonable doubt.”
13. Admittedly, defence version has not been
considered by the trial Court. Overall, putting two versions in juxtaposition
allows that more comprehensive examination and can be powerful tool for the
courts to makes their observation more effectively. Unfortunately it was not
done by the trial Court.
14. Even otherwise, it is well settled that
for the purposes of extending the benefit of doubt to an accused, it is not
necessary that there be multiple infirmities in the prosecution case or several
circumstances creating doubt. A single or slightest doubt, if found reasonable,
in the prosecution case would be sufficient to entitle the accused to its
benefit, not as a matter of grace and concession but as a matter of right.
Reliance in this regard may be placed on the cases reported as Tajamal
Hussain v. the State (2022 SCMR 1567), Sajjad Hussain v. the State (2022 SCMR
1540), Abdul Ghafoor v. the State (2022 SCMR 1527 SC), Kashif Ali v. the State
(2022 SCMR 1515), Muhammad Ashraf v. the State (2022 SCMR 1328), Khalid Mehmood
v. the State (2022 SCMR 1148), Muhammad Sami Ullah v. the State (2022 SCMR
998), Bashir Muhammad Khan v. the State (2022 SCMR 986), The State v. Ahmed
Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. the State (2021 SCMR 736),
Muhammad Imran v. the State (2020 SCMR 857), Abdul Jabbar v. the State (2019
SCMR 129), Mst. Asia Bibi v. the State (2019 PLD 64 SC), Hashim Qasim v. the
State (2017 SCMR 986), Muhammad Mansha v. the State (2018 SCMR 772), Muhammad
Zaman v. the State (2014 SCMR 749 SC), Khalid Mehmood v. the State (2011 SCMR
664), Muhammad Akram v. the State (2009 SCMR 230), Faheem Ahmed Farooqui v. the
State (2008 SCMR 1572), Ghulam Qadir v. the State (2008 SCMR 1221) and Tariq
Pervaiz v. the State (1995 SCMR 1345).
15. For what has been discussed above, we are
of the view that the prosecution has failed to prove its’ case beyond a
reasonable doubt and the benefit of doubt is extended to the appellants. Consequently,
these appeals are
allowed and conviction and sentence passed by learned trial Court are hereby
set aside and the appellants are acquitted
of the charge. They shall be released forthwith, if not
required to be detained in any other custody case.
16. These are the
reasons for the short order announced on 09.08.2023.
JUDGE
JUDGE