HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.233 of 2008

 

      Present:               Naimatullah Phuploto, J.

             Nazar Akbar, J.

 

Appellant:                       Muhammad Saleh Mallah son of Muhammad Juman Mallah through Mr. Jameel Ahmed Shah, Advocate

 

Respondent:                   The State through Mr. Abrar Ali Khichi, Assistant Prosecutor General Sindh.

 

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Date of hearing:              31.03.2015

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JUDGMENT

 

Naimatullah Phulpoto, J.--   Appellant Muhammad Saleh Mallah was tried by learned Special Judge for Control of Narcotic Substances, Thatta in Special Case No.06 of 2007 vide judgment dated 11.11.2008. He was convicted under section 9(b) of the Control of Narcotics Substances Act, 1997 and sentenced to suffer R.I. for two years and to pay fine of Rs.20,000/- and in case of default of payment of fine to suffer S.I. for one month more. Benefit of section 382(b) Cr. P.C. was extended to the appellant.

 

2.       Brief facts of the prosecution case as disclosed in the FIR are that on 05.02.2007 SIP Agha Salahuddin of P.S. Thatta left the plice station along with police station at 1720 hours alongwith subordinate staff in the Government vehicle for patrolling vide Roznamcha entry No.16. While patrolling at 1815 hours the police party reached at bypass chowk where it is alleged that the present appellant tried to run away upon seeing the police mobile. SIP Agha Salahuddin stopped the vehicle and accused was found in suspicious manner. On inquiry he disclosed his name as Muhammad Salem son of Juman Mallah. IO conducted personal search of the accused in presence of mashirs and from the side pocket of his shirt eight pieces of charas were recovered. SIP weighed the pieces of charas, total weight of charas was 190 grams, out of which 10 grams were drawn and separately sealed for sending to the Chemical Examiner whereas 180 grams charas was sealed separately. Mashirnama and memo of arrest and recovery was prepared in presence of ASI Abdul Majeed and HC Muhammad Haneef. Thereafter, accused and case property were brought to police station and a case under section 9(b) of the Control of Narcotics Substances Act, 1997 were registered against the accused. During investigation, 10 grams charas was sent to the Chemical Examiner for analysis, positive report was received. 161 Cr.PC statements of the witnesses were recorded. On the conclusion of the investigation challan was submitted against the accused under section 9(b).

 

3.       A formal charge against the accused was framed at Ex-2 under section 9(b) of the Control of Narcotics Substances Act, 1997. The accused did not plead guilty and claimed to be tried. On trial prosecution had examined the following witnesses:

 

1.      PW-1 Agha Salahuddin at Ex-4.

2.      PW-2 Muhammad Hanif

 

4.       Thereafter, side of the prosecution was closed vide statement of D.P.P. dated 09.05.2007.

         

5.       Statement of accused was recorded under section 342 Cr.PC. accused denied the recovery of 190 grams charas in presence of mashirs. He submitted that chemical report was managed and stated that all the PWs are police officials and are interested. Accused did not lead any evidence and declined to give statement on oath in disproof of the prosecution allegations.

 

6.       After assessment of evidence trial Court convicted and sentenced the appellant as stated above.

 

7.       We have heard the learned counsel for the appellant as well as learned Assistant Prosecutor General Sindh, appearing on behalf of the State.

         

8.       Syed Jamil Ahmed Shah, learned counsel for the appellant argued that all the PWs are police officials and interested, private persons were present around the place of recovery but they were not associated in the recovery proceedings. He has argued that there are material contradictions in the evidence of the prosecution witnesses. Complainant had deposed that at the time of preparation of mashirnama there was some sunlight and on the same point mashir has stated that mashirnama was prepared on the headlight of the vehicle. It is contended that charas was allegedly recovered from the accused on 05.02.2007 and it was sent to the Chemical Examiner on 13.02.2007, delay has not been explained. In support of his contentions learned counsel for the appellant has relied upon the judgments reported as 2012 SCMR 577 (Amjad Ali versus the State) and 2011 SCMR 820 (Muhammad Aslam versus the State).

9.       Mr. Abrar Ali Khichi, learned A.P.G. argued that evidence of the police officials is confidence inspiring and contradictions highlighted by the defence 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, which has not been explained.

10.     After hearing the learned counsel for parties, we have minutely scanned the evidence. Complainant S.H.O. Agha Salahuddin has deposed that on 05.02.2007 he left the police station along with his subordinate staff and arrested accused Muhammad Salem Mallah and from his possession eight pieces of charas were recovered in presence of mashirs, charas was weighed, it was 190 grams, he separated 10 grams and sealed the same for sending to the Chemical Examiner. He lodged F.I.R. against the accused on behalf of the State and produced positive chemical report at Ex.7. In the cross-examination he replied that he sent two pieces of charas to the Chemical Examiner. He has also replied that after some days of the recovery he had sent charas to the Chemical Examiner. He has also replied in the cross-examination that mashirnama was prepared by him on the sunlight. On the same point mashir has stated that mashirnama was prepared on the headlight of the vehicle. Complainant has admitted that traffic was available on road at the time of arrest of accused and the IO did not ask any person of the locality to act as mashir of recovery.

11.     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 05.02.2007 and sample was sent to the Chemical Examiner on 13.02.2007. Admittedly, there is no plausible explanation as to why such delay was caused in sending the charas to the Chemical Examiner. It has also not brought on the record that charas was in the safe custody during the dispatch period. In these circumstances, it appears that there is force in the contention of learned defence counsel that tampering/foisting of the case property cannot be ruled out. It has also come on record that accused was arrested from the road. Presence of private persons has also come on record but no private person of the locality was associated to act as mashir by the S.H.O. in this case. It may be mentioned here that two cases under section 9(b) of the Control of Narcotics Substances Act, 1997, against the appellant were registered on different dates at same police station and accused has claimed false implication in this case. In the above background, evidence of private persons was essential to eliminate the chances of false implication of the accused in this case. Delay in sending the charas to the Chemical Examiner has also not been explained as such no sanctity can be attached to such positive report, which is produced in this case. Rightly reliance has been placed on the case Amjad Ali (supra), in which the Hon’ble 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 P.W.2 Qaiser Ali Khan, S.-I. CIA, District Sawabi, who at the time was serving as S.H.O. 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, S.-I., he came to the spot along with a foot constable on a motorbike whereas according to P.W.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 P.W.2 and P.W.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."

12.     For the above stated reasons we have come to conclusion there are material contradictions in the prosecution case. Delay in sending the charas to the Chemical Examiner has not been explained. S.H.O. failed to associate private persons of the locality to make them mashirs in this case. Accused claimed false implication in this case. Two narcotic cases were registered against the accused at same police station. In these circumstances, it is unsafe to rely upon the evidence of the police officials without independent corroboration, which is lacking in this case. There are several circumstances in this case which create doubt in prosecution case. Prosecution has failed to establish its’ case beyond shadow of doubt. It appears that trial Court has not appreciated the evidence according to the settled principles of law.

13.     It is high time for the Courts to ensure that proceedings of the recovery and seizure in the Narcotic cases are made in the most transparent and confidence inspiring manner so as to protect innocent citizens from the high handedness of the police and to save them from agony of uncalled for trials. Learned counsel has rightly relied upon the case of Khalil Ahmed v. The State (PLD 2008 Karachi 8). We have come to conclusion that prosecution case is highly doubtful, and extend benefit of doubt to accused.

14.     For the above reasons, appeal is allowed,   impugned   judgment   dated   11.11.2008 is set aside and the appellant is acquitted of the charge. He is present on bail, his bail bond stands cancelled and surety is hereby discharged.

15.     Above are the reasons for our short order announced in Court on 31st March, 2015.

                                                                                           JUDGE

                                                                    JUDGE

Gulsher/PA