IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Before:

Mr. Justice Omar Sial

Mr. Justice Khalid Hussain Shahani

Criminal Jail Appeal No.D-41 of 2023

Habibullah alias Inayatullah Shar

V/S

The State

Appellant: Habibullah alias Inayatullah son of Hazoor

Bux alias Mithal Shar

Through Mr. Habibullah G. Ghouri Advocate.

State: Through Mr. Ali Anwar Kandhro, Additional

Prosecutor General, Sindh.

Date of Hearing: 11.03.2025

Date of Decision: 20.03.2025

J U D G M E N T

Omar Sial, J.- Habibullah was arrested on 07.06.2022 with five kilograms in his possession. F.I.R. No. 45 of 2022 was registered against him under section 9(c) of the Control of Narcotic Substances Act, 1997 at the Garhi Yaseen police station.

2. Habibullah pleaded not guilty and claimed to be tried. At trial, the prosecution examined W.H.C. Mohammad Parial (maalkhana in charge); A.S.I. Abdul Qadeer (the complainant); P.C. Hafeezullah Lashari (witness to the arrest and recovery); S.I. Allah Dino Mangrio (the courier and the investigating officer). In his section 342 Cr.P.C. statement, the appellant denied all wrong and claimed that he had been implicated in the false case on the behest of two nephews of his and that he had come to the police station to lodge an F.I.R. against them but was taken into custody in this case. The learned 1^st Additional Sessions Judge, Shikarpur convicted the accused and sentenced him to fourteen years in prison.

3. We have heard the learned counsel for the appellant and the learned Additional Prosecutor General. With their assistance, We have also re-appraised the evidence. The arguments of the learned counsel are not being reproduced for brevity but are reflected in our observations and findings, which are as follows.

4. Learned counsel argued that safe custody and transmission of the charas was not proved at trial. The record reflects that the appellant was arrested on 07.06.2022 with five kilograms of charas in the shape of five slabs in his possession. The seized charas was sealed on the spot by A.S.I. Abdul Qadeer and handed over to the investigation officer S.I. Allah Dino Mangrio, immediately upon registration of the F.I.R. W.H.C. Mohammad Parial confirmed in his testimony that S.I. Allah Dino Mangrio had deposited the charas with him on 07.06.2022 for which the requisite entry was made in Register 19 and exhibited at trial. On 09.06.2022 the charas was handed over by W.H.C. Mohammad Parial to S.I. Allah Dino Mangrio who then took it to the chemical laboratory. The chemical laboratory received the narcotics the same day and was satisfied with the seals. Witnesses have testified to the whole process and We find no reason to doubt their testimonies. Safe custody and transmission of the narcotics from the point of seizure till its deposit in the chemical laboratory was proved.

5. The record reflects that an F.I.R. bearing number 44 of 2024 was registered under section 324, 353, 401, 399, 148 and 149 P.P.C. at the Garhi Yaseen police station on behalf of the State at 12:30 a.m. on 07.06.2022 in which the appellant was shown as one of the accused. The incident for which the current F.I.R. was registered (i.e. 45 of 2022) occurred at 7:00 p.m. on 07.06.2022. We find it unnatural and odd that a person who, along with some others, had participated in a shoot-out with the police less than twenty-four hours ago, would be standing with five kilograms of charas on the road. We find it equally odd that though the prosecution witnesses allege that they had seen a suspicious man with a black plastic bag in his hand from nearly half a kilometer away (per PW-2 A.S.I. Abdul Qadeer Sadahyo) would watch in relative peace a police mobile coming to him, yet attempt to run away only when the police had reached him. We find it odd that in a populated place, the police, without even claiming to have prior information, would, without any rhyme or reason, find a man on the street suspicious from half a kilometer away. No explanation has been attributed by the police for the basis of their explanation. When the appellant is caught, the police admit that he had two injuries on his head. How he received these injuries remained unexplained by the prosecution, lending further credence to the defence plea that the appellant was already in custody when this case was registered against him. Police malafide is also evident from S.I. Allah Dino Mangrio’s testimony that he has made a joint mushirnama of arrest for both the crimes (F.I.R. No. 44 and 45). We observe malafide because the arrest memo put on record pertains to only F.I.R. No. 45. It seems that the investigation officer forgot that he had in all probability, subsequently, manipulated a separate mushirnama. It is also a remarkable coincidence that Mangrio was the investigating officer in both crimes.

6. The above observations make contradictions between the witness testimonies meaningful. According to A.S.I. Qadeer, he had handcuffs available with him, which were put on the appellant, whereas, according to the witness of arrest and recovery P.C. Hafeezullah, his hands were tied with a handkerchief. According to the witness P.C. Hafeezullah, his duty hours on the day were from 8:00 a.m. to 5:00 p.m., it remained unexplained at trial how P.C. Hafeezullah was present for duty at 6:00 p.m., which is the time A.S.I. Qadeer said that it was when the police party had left the police station for routine patrol. Both, A.S.I. Qadeer and the P.C. Hafeezullah gave different accounts of the route they followed and their activities until arrest and recovery. According to A.S.I. Qadeer (“we directly went to the place of incident”) whereas according to P.C. Hafeezullah not only had they stopped at a petrol station and a date farm where they had also performed snap checking of fifteen motorcycles. According to A.S.I. Qadeer, he had weighed the seized charas on the spot by placing his digital scale on the road, whereas according to P.C. Hafeezullah, Qadeer weighed the charas on the police mobile. According to A.S.I. Qadeer, the charas, though he was present, the charas was recovered from the accused by P.C. Zameer, it was handed over to the A.S.I. Qadeer by P.C. Zameer, Zameer then prepared the memo of arrest and recovery and also sealed the charas. P.C. Zameer was conspicuous by his absence at trial. Another aspect of the case is that the memo of arrest and recovery, witness testimonies, and chemical analyst's report showed that the recovered charas was wrapped in plastic wrapping and that there was a golden monogram on each slab. Both, A.S.I. Qadeer and P.C. Hafeezullah could also not describe the charas they had seized. They could not explain why the charas produced in court at trial were wrapped in plastic with gold emblems. Both witnesses were at odds whether the road leading to the appellan was straight (according to A.S.I. Qadeer) or in a zig-zag shape (according to P.C. Hafeezullah). The case's investigating officer, Allah Dino Mangrio, said at trial that he had gone to the place of incident himself, but that he had not authored the memo of site inspection. According to him, this was done by a W.P.C. Mushtaque. However, he admitted that neither the memo of site inspection nor the departure entry showed that W.P.C. Mushtaque even accompanied him to the crime site. The observations made in this paragraph (apart from the discrepancy in the description of the seized charas) may not have been sufficient to upset the conviction. Still, when the case is looked at holistically, we cannot eliminate doubt in the prosecution case.

7. Given the above, the appeal is allowed for the safer administration of justice, and the impugned judgment is set aside. The appellant may be released forthwith if not required in any other custody case.

Judge

Manzoor