Date of hearing:

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No. D-33 of 2009.

Present:

Mr. Justice Naimatullah Phulphoto

Mr. Justice Muhammad Junaid Ghaffar

Abdul Ghaffar Mirani ……………………………………..….Appellant

Versus

The State………………………………………………………...Respondent

Appellant Through Messers Ali Nawaz Ghanghro and Athar Abbas Solangi, Advocates.

Respondent: Through Mr. Khadim Hussain Khoonharo, D.P.G.

Date of hearing: 18.03.2015.

Date of judgment: 18.03.2015.

J U D G M E N T

MUHAMMAD JUNAID GHAFFAR -J: Through instant Criminal Appeal, the appellant has assailed judgment dated 03.06.2009 passed by the learned Special Judge for Control of Narcotics Substances, Larkana, in Special Narcotics Case No.03 of 2006 for an offence punishable under Section 9 (b) of Control of Narcotic Substances Act 1997, arising out of Crime No.12 of 2006 of P.S Hyderi, whereby, the appellant has been convicted Under Section 245 (2) Cr.P.C and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.20,000/=, and in default of payment of fine, to further undergo S.I for three months. The Appellant has also been granted benefit of Section 382(b) Cr.P.C.

2. The brief facts, in nutshell, as stated in the FIR by the prosecution are as follows:

That on 17.02.2006 SIP Noor Mustafa Pathan, Incharge Anti Drug Cell, Larkana along with subordinate staff namely PC-Irshad Ali, PC-Murad Ali and PC- Abdul Sattar proceeded vide Entry No.4 at 1400 hours for patrolling and recovery of contraband in official vehicle driven by PC Zahoor Hussain. During patrolling, the police party reached at Jamali Curve concealed the vehicle by parking it beside trees and at about 1500 hours they saw one person coming along the sarak whom the police party signaled to stop who tried to run away but he was arrested by them. On enquiry, he disclosed his name as Abdul Ghaffar son of Ali Gohar Mirbahar R/O Village Masu Hab Taluka Larkana. Complainant associated PCs Murad Ali and Irshad Ali as mashirs and conducted personal search of the accused and recovered plastic packet from the fold of his Shalwar which contained Charas in the shape of two pieces, which were weighed and the same came to be 1000 grams out of which 500 grams charas was taken and sealed separately as sample. From the front pocket of accused, Rs.100/= in different currency notes was also recovered. After preparation of necessary memo of arrest and recovery, the accused along with recovered property was brought at P.S Hyderi where the FIR was lodged on behalf of the State to the above effect.

3. Consequent upon registration of the FIR, the complainant conducted investigation of the case and submitted challan before the learned Trial Court on which cognizance was taken and charge was framed on 18.08.2006 to which the appellant pleaded not guilty and claimed to be tried.

4. During trial, the prosecution in support of its case examined P.W/mahsir PC Murad Ali and complainant Noor Mustafa, who produced memo of arrest, Mushirnama and report of the Chemical Examiner. On conclusion of the trial, and after hearing learned Counsel for the parties, the learned Trial Court passed the impugned judgment, giving rise to filing of the instant appeal.

5. Learned Counsel for the appellant has contended that it has come on record through evidence that only 500 grams of charas was sent for laboratory testing out of 1000 grams allegedly recovered from the possession of the appellant, whereas, the samples were admittedly not sealed as required under the law. Learned Counsel has further contended that the prosecution by filing statement dated 11.09.2006 has given up prosecution witnesses namely PC Abdul Sattar and second Mashir PC Irshad Ali, which has created substantial dent in the prosecution’s case. Learned Counsel also referred to Ex:8 and submitted that the prosecution witness namely Murad Ali, in his cross examination has admitted that the police party had left Naudero Chowk at about 3.45 p.m and has thereafter corrected the time from 3.45 p.m to 2.45 p.m, whereas, it has also been admitted by the said witness that the alleged Narcotic Substance (charas) was not sealed in his presence, which contradicts the prosecution’s case. Learned Counsel has also referred to the laboratory report in which it has come on record that the samples were dispatched by the prosecution vide letter dated 01.03.2006, whereas, the alleged incident had occurred on 17.02.2006. Per learned Counsel for the appellant, no plausible justification has been given by the prosecution for causing such delay in the dispatch of the samples. Learned Counsel further submitted that the author of the FIR was not examined whereas co-accused Abdul Razzaq was acquitted by the learned Trial Court under Section 265-K Cr.P.C. It has been further contended that the appellant in his statement Under Section 342 Cr.P.C, while responding to a question, that as to whether the appellant wants to lead any evidence in his defence or not, had categorically answered in the affirmative and had submitted that he will examine one Rehmatullah in his defence. However, per learned Counsel, learned Trial Court did not allow such opportunity to the appellant. Learned Counsel has also referred to the impugned judgment to point out that the learned Trial Court had erred in observing that the appellant had recorded his evidence on oath, whereas the appellant had only recorded statement Under Section 342 Cr.P.C. and had not examined himself. In support of his contention, learned Counsel for the appellant has relied upon the case of Ghulam Akbar v. The State (2014 YLR 1236), Abdul Ghafoor v.The State (2013 P.Cr.L.J 1185), Saleem Masih v. The State (2013 M.L.D 1573) and Nazeer Ahmed v. The State (PLD 2009 Karachi 191).

6. Conversely, learned D.P.G has supported the impugned judgment and contended that insofar as delay in sending the samples for laboratory testing is concerned, the same is not a material irregularity which could affect the merits of the case. Learned D.P.G, however, admitted that the learned Trial Court was required to provide all possible opportunity to the appellant in support of his defence and suggested that the matter could be remanded to the Trial Court for such purposes.

7. We have heard the learned Counsel for the appellant, and learned D.P.G appearing on behalf of the State as well as perused the record, R&Ps and case law relied upon by the parties.

8. On perusal of the record and material placed before us, it is noticed that as per the prosecution’s case the incident occurred on 17.02.2006 at or about 1300 Hours, whereas the Test Report (Ex: 9B) reflects that samples were received by the Testing Laboratory on 1.03.2006, and the prosecution has not been able to bring on record any plausible justification for sending the samples to the laboratory after delay of almost two weeks. Though we are mindful of the fact, that such delay does not necessarily lead to the conclusion that the prosecution’s case is false, however, since the Control of Narcotics Substances (Government Analyses) Rules, 2001, require that the sample of Narcotics recovered from the possession of an accused is to be sent for sampling immediately, the prosecution ought to have justified the delay or give some plausible justification for having sent the samples belatedly. Further, the prosecution has not been able to justify and or confirm that whether the samples during such period were kept in safe custody or not. In view of such position we are of the view that conduct of the Investigating officer in this context has created reasonable doubt in the prosecution’s case. Reliance in this regard may be placed on the case of Abdul Majeed Vs. The State (2014 YLR 2050), Muhammad Qasim Vs. The State (2014 Pcr.LJ 1193), Riaz Ahmed Vs. The State (2015 Pcr.LJ 143).

9. Secondly, it has also come on record through evidence that the incident happened on 17.02.2006 at around 1300 hours and in such broad daylight no attempt was made by the Investigating Officer to engage any private mushirs, which also creates doubt in the prosecution story. It has been further noted that two witnesses namely Murad Ali and Noor Mustafa have given contradictory statement with regard to the sealing of the samples, allegedly recovered from the possession of the appellant.

10. The record further reveals that the appellant in his statement under Section 342 Cr.P.C, had categorically insisted on brining his defence by examining one Rehmatullah, however, no such opportunity was granted to the appellant in this regard by the learned Trial Court. We have examined the Case diary which reflects that statement of the accused/appellant was recorded on 07.05.2009 and the matter was then adjourned to 13.05.2009, whereafter, the case was again adjourned to 26.05.2009 and on 26.05.2009, the matter was put up for final arguments. Thereafter, no opportunity was ever provided to the appellant to lead any evidence in his defence. We are of the view, that such conduct on the part of the learned Trial Court is against the norms of judicial process and the principles of natural justice as it was obligatory upon the learned Trial Court to have provided sufficient opportunity to the appellant to lead evidence in his defence and it was also mandatory for the learned Trial Court to ensure presence of any person which the appellant/accused wanted to bring before the Court as a defence witness.

11. It is a settled principle of law in criminal cases that if any reasonable doubt is created in the case of prosecution, then its benefit is to be extended to the accused. In the instant matter the prosecution has not been able to prove the case against the appellant beyond reasonable doubt, whereas the delay in sending the samples for laboratory test has also not been properly explained. Reliance in this regard can be placed on the case of Muhammad Aslam Vs. The State (2011 SCMR 820). Further, it is also pertinent to note that for giving benefit of doubt to an accused, it is not necessary that there should be several instances and or circumstances which must create doubts and if there is even a single circumstance which creates doubt in a prudent mind about the guilt of the accused, then the accused is entitled to such benefit not as a matter of grace and concession but as a matter of right. Reference in this regard may be made to the case of Tariq Pervez Vs. The State (1995 SCMR 1345).

12. In view of hereinabove facts and circumstances of the instant case, contradictions noted in the prosecution witnesses, delay in sending the samples and above all denying proper opportunity to the appellant to lead evidence in his defence, we are of the view that the prosecution has miserably failed to establish its case against the appellant beyond reasonable doubt, whereas the impugned judgment suffers from legal defects, hence cannot be sustained in law.

13. Accordingly, on 18.03.2015 we had allowed instant appeal by means of a short order, whereby, the conviction and sentence recorded by the Trial Court was set aside and the bail bond furnished by the appellant, in view of suspension of sentence by this Court was cancelled and the surety was discharged. The above are the reasons for such short order.

JUDGE

shabir