THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 643 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Aamir Hussain through Mr. Sarwech Abbasi advocate

Respondent : The State through Mr. Muhammad Iqbal Awan Addl. P.G

Date of Hearing : 22.02.2023

Date of Judgment : 22.02.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Aamir Hussain appellant was tried by learned I-Additional Sessions Judge/ MCTC-I/Special Court (CNS) Karachi Central in special Case No. 1673/2022 (FIR No. 430/2022 u/s 9(b) of CNS Act 1997 registered at PS Kh. Ajmair Nagri Karachi). After regular trial, vide judgment dated 25.10.2022, appellant was convicted under section 9(b) of CNS Act 1997 and sentenced to undergo R.I for 05 years and 06 months with fine of Rs.100,000/- and in default in payment of fine, he was ordered to undergo S.I for 15 days with benefit of section 382(b) Cr.P.C.

2. Brief facts leading to the filing of the instant appeal are that on 04.08.2022 at about 1210 hours, SIP Muhamad Ishaq of PS Kh. Ajmair Nagri arrested appellant and recovered from his possession 114 grams of Charas in presence of mashirs at 4 star Marriage Hall, North Nazimabad, Karachi. Mashirnama of arrest and recovery was prepared at spot, thereafter, appellant and case property were brought at P.S, where, FIR bearing Crime No. 430/2022 u/s 9(b) of CNS Act 1997 was registered on behalf of state.

3. During investigation, case property was dispatched to the chemical examiner and positive report was received. On conclusion of investigation, final report was submitted against the appellant under the above referred section.

4. Trial Court framed Charge against appellant under the above referred sections at Ex.02, to which he pleaded not guilty and claimed trial.

5. At trial, prosecution examined four witnesses and positive report of the chemical examiner was produced in evidence. Thereafter, prosecution side was closed.

6. Trial Court recorded statement of accused/appellant under Section 342 Cr.P.C at Ex.8. 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 defence.

7. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence by judgment dated 25.10.2022, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeal against his conviction and sentence.

8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 25.10.2022 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate for the appellant mainly argued that appellant was arrested by the police two days prior to the date of arrest and recovery and maltreated for the malafide reasons and police officials on the protest made by the appellant lodged a false case against him; that evidence police officials is not reliable as it was day time incident, but no private person was associated to act as mashir in this case; that there are material contradictions in the evidence of the prosecution witnesses; that safe custody and safe transmission of the charas to the chemical examiner have not been established before the trial court. Lastly, it is submitted that description of the charas allegedly recovered from the appellant has not been depicted by the prosecution witnesses. In support of his contentions, he has relied upon unreported judgment dated 13.12.2022 passed by Hon’ble Supreme court in the case of Ahmed Ali and another vs. The State (Criminal Appeal No. 48 of 2021).

10. Learned Addl. P.G argued that evidence of the police officials is reliable and trustworthy and contradictions as highlighted by the defense counsel are minor in nature. As regard to the submission of learned counsel for the appellant that injuries sustained by the appellant as mentioned in the mashirnama of arrest and recovery were not disclosed by the prosecution witnesses, learned Addl. P.G could not satisfy the Court, however, he has prayed for dismissal of the appeal.

11. We have carefully heard learned counsel for the parties and re-examined entire prosecution evidence. From re-appraisal of prosecution evidence, we have come to the conclusion that prosecution has utterly failed to prove its’ case against the appellant for the reasons that in the mashirnama of arrest and recovery at Ex.3/B, it is mentioned that appellant had injuries on his person, but appellant was not referred to the hospital for his examination, treatment and certificate and injuries suffered by the appellant were suppressed by the police officials in their evidence. Even there is nothing on record to indicate that this plea was ever investigated by the I.O, which caused serious dent in the prosecution case as in absence of any medical certificate of the injuries of the appellant, the plea raised by the defense counsel that appellant was arrested two days prior to the incident and was maltreated and on his protest he was involved in this case falsely appears to be weighty. Reliance is placed upon the case of Mumtaz Ali vs. The State (supra), relevant portion is reproduced as under:

“……..The consistent plea of the appellant during the trial was that there was exchange of firing between two parties and he got injured in the cross firing. There is nothing on record to indicate that this plea was ever investigated instead the complainant police officer himself investigated the case. The non-production of medical evidence particularly with regard to injury received by the appellant is a serious infirmity in the prosecution case as in absence of that it would not be free from doubt to hold that the appellant received the injury on account of firing by police party or those were caused by cross firing between the two parties………”

12. We have also noticed that there are material contradictions in the evidence of prosecution witnesses on material aspect of the case. PW SIP Muhammad Ishaq deposed that he conducted personal search of some persons during patrolling. However, P.W/PC Irfan has deposed that no search of any person was conducted during patrolling. PW/PC Irfan further stated that private persons avoided to act as mashir whereas, PW/SIP Muhammad Ishaq stated that I.O had not associated a private person as mashir.

13. So far safe custody and safe transmission of the sample parcels to the chemical examiner is concerned, the sample was sent to the chemical examiner on 04.08.2022 but the same was received in his office on 05.08.2022. The prosecution has failed to offer plausible explanation as to where the charas was kept during intervening period. In narcotics cases, it is duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of the sample parcels to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing in such like offences the benefit must have been extended to the accused. Reliance is placed upon the cases reported as the State through Regional Director ANF Vs. Imam Bakhsh and others (2018 SCMR 2039). In these circumstances, we have come to an irresistible conclusion that the prosecution has failed to prove the case against the appellant beyond any shadow of reasonable doubt.

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 an unreported judgment dated 13.12.2022 of the Hon’ble Supreme court passed in the case of Ahmed Ali and another vs. The State (Criminal Appeal No. 48 of 2021) and 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 appellant. Consequently, this appeal is allowed and conviction and sentence passed by learned trial Court are hereby set aside and the appellant Aamir Hussain is acquitted of the charge. Appellant is produced in custody, he is returned back to jail with direction that he shall be released forthwith, if not required to be detained in any other custody case.

JUDGE

JUDGE