JUDGMENT SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

PRESENT:

Naimatullah Phulpoto J.

Farooq Ali Channa J.

Cr. Appeal No.D-15 of 2013.

Appellant: Ghulam Abbas Jamali through Mr. Abdul Haleem Jamali Advocate.

Respondent: The State through Syed Meeral Shah Deputy Prosecutor General Sindh .

Date of hearing: 07.11.2013.

Date of decision: 07.11.2013.

J U D G M E N T

NAIMATULLAH PHULPOTO J: Through instant Criminal Appeal, appellant Ghulam Abbas Jamali impugned the judgment dated 06.03.2013, passed by the learned Sessions/Special Judge Matiari in Special Case No.09 of 2012, whereby the appellant was convicted and sentenced u/s 9-C of Control of Narcotic Substances Act, 1997 to suffer R.I. for 05 years with fine of Rs.50,000/-, in case of non-payment of fine he shall suffer RI for six months more. Benefit of section 382(b) Cr.P.C was also extended to the appellant.

2. Facts of the prosecution case, in brief, are that on 11.11.2011 complainant SIP Ghulam Ali Zardari SHO P.S. Saeedabad alongwith his subordinate staff namely PCs Nazeer Ahmed and Gullan Jam left P.S. in Government vehicle vide roznamcha entry No.26 at 0600 hours for patrol duty. During patrolling at various places when police party reached at Bakhar Jamali Chowk, National High Way, they saw a person on road. He was surrounded and caught hold of by the police party at 0640 hours. On inquiry, apprehended person disclosed his name as Ghulam Abbas. Due to non-availability of private mashirs, personal search of the accused was conducted in presence of P.C Nazeer Ahmed and PC Gullan Jam and one plastic bag containing one big piece of charas weighing 1000 grams and cash Rs.200/- were recovered from his possession. Thereafter, accused was arrested and mashirnama of arrest and recovery was prepared and appellant was brought at Police Station, where FIR was lodged on behalf of State against accused u/s 9(b) of Control of Narcotic Substances Act, 1997.

3. During investigation, the recovered charas/case property was sent to Chemical Examiner for report, which was received in positive. On conclusion of usual investigation, challan was submitted against the appellant u/s 9(b) of C.N.S. Act, 1997.

4. Charge was framed against the appellant u/s 9(c) of Control of Narcotic Substances Act, 1997. Appellant met the charge with denial. In order to substantiate the charge, prosecution examined the complainant SIP Ghulam Ali Zardari at Ex.6 and mashir PC Nazeer Ahmed at Ex.7 and closed its side at Ex.8.

5. Statement of the appellant u/s 342 Cr.P.C. was recorded at Ex.9, in which he denied the recovery of 1000 grams of charas from his possession and stated that P.Ws have deposed against him falsely. Appellant did not lead any evidence in his defence. He declined to examine himself on oath. Regarding positive chemical report, the appellant stated that he did not know about it. He pleaded his innocence.

6. On the conclusion of the trial after hearing the counsel for the parties, learned trial Court convicted and sentenced the appellant as stated above.

7. We have carefully heard learned counsel for the parties and perused the entire evidence.

8. Complainant/I.O. in his evidence has deposed that on 11.11.2012 he left the police station alongwith P.C Nazeer Ahmed and P.C Gullan Jam at 0600 hours vide roznamcha entry No.25 for patrolling and while patrolling at different places when police party reached at Bakhar Jamali Chowk, they saw the present accused, he was coming from opposite direction. He apprehended him and on inquiry, accused disclosed his name as Ghulam Abbas. His personal search was conducted. Complainant/I.O. recovered one polythene bag from fold of his shalwar and cash Rs.200/-. Bag was opened, it contained charas, which was weighed and it was 1000 grams. The recovered charas was sealed in presence of the mashirs P.Cs Nazeer Ahmed and Gullan Jam. Such mashirnama was prepared. Complainant stated that accused and case property were brought at Police station where FIR was registered u/s 9 (b) of C.N.S Act. During investigation, he recorded 161 Cr.P.C statements of the P.Ws and sent the entire charas to the Chemical Examiner. On conclusion of investigation, he submitted challan.

9. In cross examination Complainant/I.O. stated that the case property was sent to the Chemical Examiner on 17.11.2011; again said it was sent on 12.11.2011. He has replied that ploythene bag which contained charas was not produced in the Court. I.O. has admitted that private persons were available but he did not make them mashir. However he denied suggestion that the charas has been foisted upon the appellant due to enmity.

10. Prosecution has also examined mashir PC Nazeer Ahmed. He has stated that on 11.11.2011 he left police station alongwith SHO and other police constable in police mobile and while patrolling at different places when at 0640 hours, reached at Bakhir Jamali chowk where they saw present accused, coming from opposite direction. He was apprehended and his personal search was conducted, from the fold of his shalwar, one plastic bag and cash Rs.200/- from his pocket were recovered. Plastic bag was opened by the SHO it contained charas, which was weighed and it was 1000 grams. He was made mashir. Co-mashir was Gullan Jam.

11. In cross examination, mashir Nazeer Ahmed has replied that incident had occurred in evening time, however he has denied suggestion that he has deposed falsely against the appellant.

12. Learned counsel for the appellant has vehemently contended that the prosecution story is false, fabricated and concocted. He has referred to mashirnama of arrest and recovery in which “crime No.133/2011 u/s 9(b) Narcotics” is mentioned. He has also argued that according to the contents of FIR, recovery was effected from the appellant at 0640 hours. The mashir of recovery has stated that recovery was effected from the appellant in evening time. He has also stated that there was delay of five days in sending the case property to the Chemical Examiner and that tampering with the case property during such period could not be ruled out. He argued that case was registered against the appellant u/s 9-b and challan was also submitted u/s 9(b) C.N.S Act but surprising charge was framed u/s 9(c) of C.N.S Act without any legal justification. He has also submitted that without cogent evidence, the appellant has been convicted and sentenced u/s 9-C of C.N.S Act, 1997.

13. Learned Deputy Prosecutor General Sindh was confronted with such contentions raised by the learned counsel for the appellant. He has no reply to explain the discrepancies arising out in the prosecution case. He very frankly recorded his no objection to the acquittal of the appellant and did not support impugned judgment.

14. We have come to the conclusion that prosecution case is highly doubtful for the reasons that mashirnama of arrest and recovery was prepared on 11.11.2011 at 0640 hours. Surprisingly, in the end of mashirnama Crime No.133 of 2011 u/s 9(b) Control of Narcotic Substances Act, 1997 is written, whereas, as per prosecution version, FIR was lodged at police station on 11.11.2011 at 0730 hours; learned D.P.G. could not explain it. Material contradiction regarding the date and time of arrest and recovery has been brought on record. Complainant/ Investigating Officer has stated that accused was arrested on 11.11.2012 at about 0640 hours; on the same point P.W-2 Nazeer Ahmed, mashir of arrest and recovery, has stated that appellant was arrested on 11.11.2011 in the evening time. Such material contradiction has also not been explained by the prosecution. Roznamcha entries regarding departure and arrival of police from concerned police station were not produced before the trial Court to establish that police party had actually left for patrolling at the relevant time. Such omission also cuts the root of prosecution case. It is the matter of record that Charas was recovered on 11.11.2011, but it was received by Chemical Analyser on 17.11.2011, after five days of its recovery. Learned defence counsel has argued that delay in sending the Charas to the Chemical Analyser was intentional and there was tampering with the case property. Prosecution has failed to explain such delay in sending the case property i.e. Charas to the Chemical Analyser. As per Rule 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, this exercise was required to be completed within seventy two hours of recovery. In such circumstances, positive chemical report would not improve the prosecution case. Appellant/accused in his statement under section 342 Cr.P.C. has also claimed enmity with the police officials. We have examined the prosecution evidence and came to the conclusion that there are material contradictions and discrepancies in the evidence of the prosecution witnesses and it is almost impossible to believe the evidence of the prosecution witnesses regarding recovery of Charas from the possession of accused; their evidence is so unreliable, unnatural as to be worth precisely nothing. It is pertinent to mention here that the narcotic substance allegedly recovered in the present case was 1000 grams and according to provisions of Control of Narcotic Substances Act, 1997 the offence fell under section 9(b) and not under section 9(c) of the Act 1997, the trial Court without applying judicial mind framed the charge against the appellant under section 9(c) of the Act 1997 and also convicted and sentenced him u/s 9(c) of the Act, 1997. Courts have not to act mechanically nor to conduct trial in a mechanical manner. Admittedly private persons were available around the place of recovery at the relevant time, but they were not associated by the complainant/Investigating Officer in the recovery proceedings. In the above stated circumstances, independent corroboration was essential, but it is lacking in this case. Syed Meeral Shah, learned D.P.G, in view of abovementioned material contradictions and weaknesses in the prosecution case, did not support the impugned judgment. Learned counsel for the appellant has rightly relied upon the case of MUHAMMAD ASLAM v. STATE (2011 S C M R 820), wherein it was observed as under:-

“5. Learned counsel for the appellant, Mr. Muhammad Zaman Bhatti, after making detailed reference to the oral and documentary evidence brought on record by the prosecution, vehemently contended that conviction of the appellant for the commission of offence under section 9(c) of the Act, 1997, is result of gross misreading and non-reading of material pieces of evidence, from which it was established that he was an innocent person, who was falsely implicated in the crime by the police. In this regard, learned counsel has made reference to the deposition of Muhammad Anwar ASI, P.W.5, who, in his deposition, has stated that on the pointation of informer, he had seen the accused person standing at a distance of eight or ten yards towards western side of the road and had taken his personal search but nothing was recovered. However, as he was standing near ten sacks, therefore, it was presumed that he was the person carrying such sacks of narcotics. It is significant to note that as per prosecution’s own case, this incident had occurred in a busy area (public place) of town where number of private persons were available, but no efforts were made by the Investigating Officer of the crime to arrange any witness of the locality, who might have seen the appellant in any manner linked with the ten sacks of narcotics lying near the road in open space. Learned counsel, while making reference to the evidence of other prosecution witnesses, has shown that even in the evidence of two prosecution witnesses, who were allegedly eye-witnesses of the arrest of the appellant and recovery of narcotic substances from his possession in the form of ten sacks, they have nowhere stated that they had, in any manner, seen the appellant either bringing those sacks or carrying the same with him. Thus, mere fact that appellant was standing near those bags could not be a proof of the fact that he was the person in active possession of ten sacks containing narcotic substances. May be the same were belonging to some other criminal, who might have slipped away seeing the police raiding party as also specifically deposed by the appellant in his statement on oath under section 340(2), Cr.P.C. before the trial Court. He also made reference to the report of Chemical Examiner to show that without any plausible explanation, the alleged samples of narcotic substances were sent to the Chemical Examiner after delay of eight days, though, as per Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, this exercise was required to be completed within seventy two hours of the recovery, and for this purpose, even there is no plausible explanation from the side of the prosecution that why such inordinate delay was caused in the completion of this exercise by the Investigating Officer.

6. In the light of submissions made by the learned counsel for the appellant, we have carefully gone through the case record as well as the two judgments impugned before us by the appellant and seen that the evidence adduced by the prosecution lacked quality as well as reliability about the involvement of the appellant in the commission of crime for many reasons. In the instant case, it seems to be highly improbable that the informer, after seeing the appellant, allegedly standing at Toll Tax with huge quantity of narcotics, will cover long distance to inform the police party, who will come back at the place of occurrence in his company and will catch hold of appellant, as if he was waiting for them at the place of occurrence; no evidence has come on record to show that either the informer or any person had seen the appellant either loading or unloading the said sacks containing narcotic substances from any vehicle or other source, which, in other words, means that even if the said ten sacks were containing narcotic substances in the form, as reported by the Chemical Examiner, mere fact that the appellant was standing near those sacks or a passerby will not establish that the same were in his active possession or even he had any knowledge about the contents of those bags. It is well-settled legal principle regarding dispensation of justice in criminal cases that if any reasonable doubt is created in the case of the prosecution then its benefit is to be extended to the accused party. In the instant case, as discussed above, even if whole evidence of the prosecution is considered in its totality, it is not established beyond reasonable doubt that the alleged quantity of 9-1/2 mounds contained in ten sacks was owned by the appellant or it was in his possession. Another distinguishing feature of the case is that there is no explanation, whatsoever, from the side of the prosecution about the delay of over seven days in the remission of samples to the Chemical Examiner for his report.

7. This being the position, extending the benefit of doubt to the appellant, this appeal is allowed, both the judgments impugned before us by the appellant are set aside, he is acquitted of the charge and ordered to be released forthwith, if not required in any other case. Before parting with the judgment, we may observe that the delay of two days in the filing of this appeal by the appellant, looking to the facts and circumstances of the case, is condoned.”

15. For the above stated reasons, looking to the circumstances of the case and while respectfully following the dicta laid down in the aforesaid authority, we hold that prosecution has failed to prove its case against the appellant by bringing trustworthy convincing and coherent evidence for the purpose of awarding conviction in this case. Trial Court has recorded conviction in this case without legal evidence. We extend benefit of doubt in favour of the appellant. Consequently, the appeal is allowed, conviction and sentence dated 06.03.2013 are hereby set aside and the appellant is acquitted of the charge. He shall be released forthwith if not required in some other case.

16. Before parting with judgment it is shocking to observe that learned trial Judge failed to appreciate prosecution evidence according to settled principles of law and recorded conviction without convincing evidence. Conviction in this case created socio-economic issues for the family of accused and they sustained an irreparable loss. Unfortunately, this aspect was not considered by trial Court.

Above are the reasons for our short order dated 07.11.2013.

JUDGE