Criminal Appeal No.259 of 2007
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Abdul Malik Gaddi
Appellant: Dur
Muhammad alias Durro son of Mir Khan Manganhar through Mr. Muhammad Nawaz Tahiri,
advocate
Respondent: The
State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.
Date of Hearing : 18.10.2017
JUDGMENT
NAIMATULLAH PHULPOTO, J.- Dur Muhammad alias Durro, appellant, was tried by learned Special Judge, Control
of Narcotic Substances, Thatta for offences under
section 9(b) of the Control of Narcotic Substances Act, 1997. By judgment dated
31.10.2007, the appellant was convicted under section 9(b) of the Control of
Narcotic Substances Act, 1997 and sentenced to fifteen months R.I. and to pay
fine of Rs.5,000/-, in case of default in payment of the fine, he was ordered
to suffer R.I. for two months more.
Appellant was extended benefit of Section 382-B Cr.P.C.
2. Brief facts of the prosecution case as discussed
in the F.I.R.
are that on 14.10.2003, complainant Shafi Muhammad Siyal, Assistant Excise and Taxation, Divisional
Intelligence Branch Excise & Taxation, Hyderabad along with his subordinate
staff proceeded to Thatta in Government vehicle. It
is alleged that excise officials received spy information that present accused
was in possession of narcotic at Sama Mohallah. Excise officials proceeded to the pointed place
and saw the present accused, standing in the said Mohallah.
He was surrounded and caught hold. On inquiry, he disclosed his name as Dur Muhammad alias Durro son of
Mir Khan Manganhar. His personal search was conducted
by the AETO in presence of the mashirs and from his possession one plastic bag
was recovered from the fold of his shalwar and cash of Rs.60/-. Charas was
weighed by AETO in presence of mashirs. It was 500 grams. AETO separated 10
grams for sending to the Chemical Examiner, remaining substance was separately
sealed. Mashirnama of arrest and recovery was prepared. Thereafter, accused and
case property were brought to the police station where F.I.R. bearing Crime
No.21/2003 was registered under section 9(b) of the Control of Narcotic
Substances Act, 1997.
2. During investigation, 10 grams sample was
sent to the Chemical Examiner, positive report was received. On the conclusion
of usual investigation, challan was submitted against the accused for offence
under section 9(b) of the Control of Narcotic Substances Act, 1997.
3. Learned Judge, Special Court (CNS), Thatta framed charge against the accused under section 9(b)
of the Control of Narcotic Substances Act, 1997. Accused pleaded not guilty and
claimed to be tried.
4. At trial, prosecution examined AETO Shafi
Muhammad Siyal at Ex.5, who produced mashirnama of arrest and recovery at Ex.6 and F.I.R. at
Ex.6/B, positive chemical report at Ex.8. Prosecution had also examined Syed
Irshad Shah, mashir of arrest and recovery. Thereafter, prosecution side was
closed at Ex.10.
5. Statement of accused was recorded under
section 342, Cr.PC at Ex.11. Accused claimed false
implication in this case and denied the prosecution allegations and raised plea
that at the relevant time, he was busy in tyre
repairing work near Petrol Pump, excise officials purchased second-hand tyre, when he demanded price of the tyre,
he was maltreated and charas was foisted upon him. Accused produced news
cutting in support of such plea and examined DWs Abdullah and Shamsuddin in his defence. Thereafter, defence side was
closed.
6. Trial court after hearing the accused and District Attorney, by judgment
dated 31.10.2007 convicted and sentenced the appellant as stated above.
7. The facts of the case as well as evidence produced before
the trial Court find an elaborate mention in the judgment dated 31.01.2015
passed by the trial Court and, therefore, the same may not be reproduced here
so as to avoid duplication and unnecessary repetition.
8. Appellant is produced in custody and
submits that he is victim of the excise officials. 500 grams charas has been
foisted upon him as he demanded cost of second hand tyre
sold to the said excise police officials. Appellant further submits that
regarding highhanded of excise police officials news was published in the newspapers
and he produced DWs before the trial court but trial court ignored his defence
evidence and prayed for justice.
9. Mr. Muhammad Iqbal
Awan,
learned D.P.G. did not support the judgment of the trial court.
10. We have gone through the evidence with the
assistance of learned D.P.G. Admittedly, arrival and departure entries were not produced by the Excise
officials before the trial court. Non-production of arrival and departure
entries cuts the roots of the prosecution case and creates serious doubt in
relation to the genuineness of the prosecution case as held in the case of ABDUL
SATTAR and others versus THE STATE (2002 PCr.LJ 51).
It is also matter of the record that accused was arrested on 14.10.2003, after
eight days, 10 grams of charas was deposited in the office of Chemical
Examiner. Safe custody of charas at police station in Malkhana and its safe transit to the chemical examiner have not been
established. It is well settled law that prosecution has to establish the safe
custody of the charas at the Malkhana at police station as well as its safe transit as held in the case of Ikramullah
& others V/S. The State (2015 SCMR 1002) wherein, the
importance of keeping the recovered narcotic substance in safe custody and
proving its safe transit to the chemical examiner was emphasized in the
following terms:-
5. In the case in hand not only the report
submitted by the Chemical Examiner was legally laconic but safe custody of the
recovered substance as well as safe transmission of the separated samples to
the office of the Chemical Examiner had also not been established by the
prosecution. It is not disputed that the investigating officer appearing before
the learned trial court had failed to even to mention the name of the police
official who had taken the samples to the office of the Chemical Examiner and
admittedly no such police official had been produced before the learned trial
Court to depose about safe custody of the samples entrusted to him for being
deposited in the office of the Chemical Examiner. In this view of the matter
the prosecution had not been able to establish that after the alleged recovery
the substance so recovered was either kept in safe custody or that the samples
taken from the recovered substance had safely been transmitted to the office of
the Chemical Examiner without the same being tampered with or replaced while in
transit.
11. We have also noted that many persons of the
locality had gathered at the time of arrest of the accused and place of arrest
has been shown near petrol pump but no efforts were made by the Excise police
to associate independent persons of the locality in recovery proceedings.
Unfortunately, trial court did not consider the defence evidence. Learned
D.P.G. in the view of glaring defects in the prosecution case did not support
it. We have also come to the conclusion that there are several circumstances in
this case which created doubt in the prosecution case. It is settled law that
it is not necessary that there should be many circumstances creating doubt. If
there is a single circumstance, which creates reasonable doubt in a prudent
mind about the guilt of the accused, then the accused will be entitled to the
benefit not as a matter of grace and concession but as a matter of right as
held in the case of Tariq Pervez
V/s. The State (1995 SCMR 1345), the Honourable Supreme Court has observed as
follows:-
It is settled law that
it is not necessary that there should many circumstances creating doubts. If
there is a single circumstance, which creates reasonable doubt in a prudent
mind about the guilt of the accused, then the accused will be entitled to the
benefit not as a matter of grace and concession but as a matter of right.
12. For the above
stated reasons, we hold that prosecution has failed to prove its case against
the appellant, therefore, while extending the benefit of doubt, appeal is
allowed and the conviction and sentence recorded by the trial Court are set
aside and appellant is acquitted of the charge. Appellant is produced today by
Sub-Jail Thatta authorities where appellant is stated
to be confined in some other case. Appellant shall be released forthwith if he
is not required in some other case.
These are
the reasons for our short order dated 18.10.2017.
J U D G E
J
U D G E
Gulsher/PS