THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Crl. Appeal No.D-69 of 2006.

PRESENT :

Naimtullah Phulpoto, J

Farooque Ali Channa J.

Appellant Ishfaque Ahmed son of Ghous Bux by caste Manganhar through Mr. Asif Ali Abdul Razak Soomro, advocate.

Respondent :The State through Mr. Ameer Ahmed Narejo, advocate.

Date of hearing: 14.11.2012.

J U D G M E N T .

Naimtullah Phulpoto, J- Appellant Ishfaque Ahmed son of Ghous Bux Manganhar has been convicted under section 9(b) of Control of Narcotic Substances Act, 1997 and sentenced to suffer 2 ½ years (Two years and six months) R.I and to pay fine of Rs.20,000/-, in case of default to suffer R.I for three months more by learned Sessions Judge & Special Court of CNS, Jacobabad vide judgment dated 24.6.2006 in CNS Case No.07/2004 which was out come of FIR No.04/2004 at Excise Police Station Jacobabad.

Brief facts of the prosecution case as disclosed in the FIR are that on 09.3.2004, Inspector Sikandar Ali Khoso along with his sub-ordinate staff, namely Excise Constable Abdul Kareem, ECs Meer Jiand, Muhammad Hashim and Dildar Ali left P.S for detecting the excise crimes and patrolling vide movement entry No.65 on 09.3.2004, when the police party arrived in front of Palace Hotel, Quaid-e-Azam Road, Jacobabad, they saw a person coming from Eastern side. Excise officials found suspected person surrounded and caught him hold. He was informed about the Abkari Act and his name was enquired, to which he disclosed his name as Ishfaque Ahmed. Complainant made ECs Meer Jiand and Mahboob Ali as mashirs, conducted personal search and recovered two pieces of Charas, one old NIC and amount of Rs.130/- from the right side pocket of his shirt. The charas was weighed which became 200 grams. 10 grams charas from each piece were separately sealed for sending to Chemical Examiner. Remaining 180 grams charas were separately sealed. Such mashirnama was prepared at the place of incident in presence of mashirs and thereafter the appellant/accused and case property were brought at the Excise Police Station where FIR against the appellant was lodged on behalf of State as stated above. 161, Cr.P.C statements of P.W were recorded. Sealed charas 20 grams were sent to Chemical Examiner on 18.3.2004, the same were received by Chemical Examiner on 19.3.2004 and report was received in positive. The challan was submitted against the appellant under section 9(b), of Control of Narcotic Substances Act, 1997.

Charge was framed against the appellant by learned Sessions Judge & Special Court of CNS, Jacobabad to which the accused pleaded not guilty and claimed trial. At the trial, prosecution examined PW-1 complainant Sikandar Ali, Excise Inspector Ex-06, he produced the attested copy of entry of movement register Ex-07, memo of arrest of accused and recovery Ex-08, FIR Ex-09, positive report of Chemical Examiner Ex-10. The prosecution has also examined PW-2 mashir EC Meer Jiand at Ex-12. Thereafter, prosecution side was closed. Statement of the accused was recorded under section 342, Cr.P.C at Ex-14. Accused claimed false implication in the case and denied the recovery of the charas. Accused in his defense examined defence Witness namely Imamuddin, thereafter defense side was closed. On the conclusion of the evidence, after hearing learned advocate for the accused and State, the learned trial Court convicted and sentenced the appellant as stated herein above.

Mr. Asif Ali Abdul Razak Soomro, learned advocate for the appellant has mainly contended that there is inordinate delay in sending the charas to Chemical Examiner, it was allegedly recovered on 09.3.2004 and sent on 18.3.2004 to Chemical Examiner. There is no explanation for such delay as such tampering with case property cannot be overlooked. He has further contended that charas was allegedly recovered from the possession of accused in thickly populated area but Excise Inspector failed to associate private persons of locality as witness mashir. He has further contended that accused in his cross examination to the P.Ws has specifically raised plea that excise officials had enmity with the father of the accused, who was serving at Fire Brigade. It is further argued that in view of such plea, prosecution was supposed to examine the independent witnesses in this case. Some contradictions in the evidence of the complainant and mashirs have also been highlighted by the defence counsel and stated that prosecution case is highly doubtful. In support of his contention, he has relied upon the case of Amjad Ali versus The State 2012 SCMR 577 and Muhammad Aslam versus The State 2011 SCMR 820.

Mr. Ameer Ahmed Narejo, learned State Counsel has argued that evidence of the excise officials is inspiring confidence and straight forward and contradictions highlighted by the defense counsel are minor in nature, same were not fatal to prosecution case, however, he has admitted the delay in sending the charas to Chemical Examiner without plausible explanation.

After hearing the learned counsel for parties, evidence has been minutely perused.

We have come to the conclusion that prosecution has failed to establish its case against the appellant beyond any shadow of doubt for the reasons that admittedly the charas was allegedly recovered from the possession of the appellant on 09.3.2004 and the sample of charas was sent to Chemical Examiner on 18.3.2004. There is no explanation as to why such delay was caused in sending the charas to Chemical Examiner. It has also not come on record that in who’s possession the case property remained during the intervening period as such there appears force in the submission of learned defence counsel that in the circumstances, tampering with the case property can not be overlooked. It is also the matter of the record that appellant was arrested from thickly populated area surrounded by shops and hotels and no private person of locality was associated as mashir in this case. In view of the specific plea regarding enmity of the Excise Officials with the father of the accused, it would have been better for the prosecution to have examined the independent persons of locality and it has not been done in this case. Original departure entry No.65 dated 09.3.2004, has also not been produced for the satisfaction of Court. In the case of Amjad Ali (supra), the Honourable Supreme Court has been pleased to observe as under :

5. Having heard learned counsel for the appellant and for the State, we find that the vehicle which was being driven by the appellant was intercepted by PW-2 Qaiser Ali Khan, SI CIA, District Sawabi, who at the time was serving as SHO. A perusal of his examination-in-chief indicates that although the appellant never disclosed that the secret cavities of the car door and the stepney contained charas yet according to the said witness, he of his own found out that, uncovered the secret cavities of the door and the stepney without the help of any instrument. This, on the face of it, is repellent to common sense. Then according to P.W-3 Manir Khan, SI, he came to the spot along with a foot constable on a motorbike whereas according to PW-4 Safdar FC-333, the former came to the spot in a private vehicle and not on a motorbike. Although the prosecution sought to corroborate the testimony of PW-2 and PW-3 with the report of the Forensic Science Laboratory to the effect that the contraband item recovered from the secret cavities was charas yet the sanctity of the said report (Exh.PK) was eroded when P.W.3 Manir Khan in cross examination could not correctly reply as to where the samples remained between the dates those were allegedly taken into possession from the car and the date those were received by the Forensic Science Laboratory i.e. 26.5.2006 to 3.6.2006. He even could not tell the date as to when the samples were sent for examination and which official had taken the samples to the Laboratory. Admittedly, the case property the stepney of the car was never produced during trial to verify as to whether it could contain such a huge quantity of the narcotics in question.”

For the above stated reasons while respectfully relying upon the cases of Honourable Supreme Court, we have come to conclusion that prosecution has failed to establish its’ case against the appellant beyond any shadow of doubt. Appeal is allowed, impugned judgment dated 24.6.2006 is set aside and appellant is acquitted of the charge. He is present on bail, his bail bond stands cancelled and surety is hereby discharged.

Judge