2014 P Cr (PLP)

SADIQ HUSSAIN BHATTI, J.

Appellant/accused was tried and convicted by learned Special Judge/Control of Narcotic Substance/ Ist Additional Sessions Judge, Hyderabad vide judgment dated 9th February, 2010, whereby he has been convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.100,000 (One lac) and in default of payment of fine to suffer three years' R.I more, under section 9(c) Control of Narcotic Substances Act, 1997. Appellant/ accused has impugned this judgment by filing this Criminal Appeal under section 48 of Control of Narcotic Substances Act, 1997, read with section 410, Cr.P.C.

2. Briefly the facts of the prosecution case are as under:-- "On 19-8-2008 complainant Saleemullah Samo, Excise Inspector, DIB Hyderabad lodged F.I.R. stating therein that he under the supervision of Excise Inspector Jawaid Karim Mehar Incharge DIB so also other subordinate staff acting on spy information took two mashirs namely EC Nawaz Ali Chandio and EC Tahir Hussain under Entry No.61 at 5-00 PM, proceeded in the official mobile from Police Station towards Tando Jam and when they reached near Al-Madina Hotel Tando Jam, they saw the same person at Al-Madina Hotel having black colour bag in his hand who on seeing the complainant party in uniform tried to escape away but he was encircled and apprehended by police. On inquiry he disclosed his name as Ghulam Qadir, then the bag which was having by the accused was opened and checked in which 10 slabs of Charas wrapped in coloured plastic were lying. On further search Rs.500 were recovered by the complainant in presence of witnesses. Each slab was weighed and found 1 KG each. The samples of 10 grams were separated and sealed, so also remaining property was sealed separately. Accused also disclosed that he has purchased the said charas from one Ali Asghar from Mirpurkhas and has brought the same here to sale to some unknown persons."

3. Accused and case property were brought at DIB Hyderabad where an F.I.R., Crime No.8 of 2008 was registered against the appellant/accused at the behest of Saleemullah Sammo, Excise Inspector, Divisional Intelligence Branch, Hyderabad, on 16-8-2008 at 7-30 p.m.

4. After completing the investigation, Excise Police submitted the charge-sheet against the appellant/accused before the concerned Court.

5. During trial proceedings, the relevant papers were supplied to accused as required under section 265-C, Cr.P.C. vide receipt Exh.1. Charge Exh.2 was framed against the accused as under:-- "That on 19-8-2008 at 600 hours p.m. near Al-Madina Hotel Mirpurkhas Road Tando Jam, Hyderabad, in contravention of sections 6, 7, 8, C.N.S. Act 1997 you were arrested by Excise Inspector Saleemullah Samon DIB Excise Hyderabad and recovered 20 Kg charas and Rs.500 from your possession. Thus you have committed an offence punishable under section 9(c) of C.N.S. Act 1997 within the cognizance of this Court. And I hereby direct that you be tried on the aforesaid charge."

6. Accused pleaded not guilty and claimed to be tried vide plea Exh.2-A.

7. Prosecution in order to prove its case examined the following prosecution witnesses:--

8. P.W.1 Saleemullah Samo, Excise Inspector DIB Hyderabad as Exh.3. He repeated the same version as mentioned in the F.I.R. during his examination-in- chief and produced the copies of the Extracts of SDE Nos.61 and 62 as Exh.3/A, memo of the arrest and recovery as Exh.3/B, F.I.R. No.8/2008 as Exh.3/C, Chemical Examiner's report in respect of the sample parcels of the alleged drug as Exh.3/D. In the cross-examination, he admitted that F.I.R. of this case was written by him. He also admitted the suggestion that "It is correct that I am complainant, so also recovery witness and investigation officer." He also testified that case property charas was in fact weighed by E.C. Tahir Hussain. He also admitted as correct suggestion that spy information was received at Excise Office along with the feature of accused but he has not mentioned the same either in mashirnama Exh.3/B or in F.I.R. Exh.3/C. He also deposed that the case property was dispatched to Chemical Examiner by him on the same day of its recovery through PC Shahid Hussain but I do not remember when he (PC Shahid Hussain) left Excise office. When the attention of this witness was drawn towards the Chemical Examiner's report Exh.3/D which mentioned the date of receiving of the case property as 19-8-2008, to which he preferred to remain silent. He also admitted that place of arrest and recovery is busy place. People remain present from sunrise to sunset. He also admitted that Al-Madina Hotel was found open at that time. The owner of the hotel and waiters were also present at that time, but no one from them obliged him to act as mashir nor he issued any notice to them for his assistance. This P.W. also admitted in cross-examination that there was no any previous record of drug trafficking against the present accused. He also testified that daily diary entry was maintained by EC Tahir Hussain who had written the same. He also deposed that during preparation of memo, accused was in the custody of EC Abdul Majeed. He denied the suggestion that accused has been falsely implicated in the case and nothing was recovered from his possession. He also denied the suggestion that accused was not arrested as shown by prosecution but in fact was arrested from Qasimabad in presence of several persons.

9. P.W.2 Excise Constable Nawaz Ali was examined as Exh.4. He was one of the members of raiding party of Excise Police headed by complainant Saleemullah Excise Inspector DIB Hyderabad. He acted as mashir of arrest and recoveries.

10. He deposed that on 16-8-2008, he along with Excise Inspector Jawed Karim Mahar and other subordinate staff of DIB Hyderabad headed by Incharge Inspector Excise Saleemullah on a tip off left Excise office at 5-00 p.m. in Government vehicle after making Entry No.61 in the diary and reached near Al- Madina Hotel where they found a person standing along with a black bag in his hand, who on seeing them tried to escape but was apprehended by them tactfully, who on enquiry disclosed his name as Ghulam Qadir son of Zaman Khan Jatoi resident of near Wassan Shakh Garhi Khuda Bux District Larkana. We secured one bag from him which contained ten packets of charas each packet weighing one Kg. Ten grams from each packet was drawn as sample and were separately sealed in the envelopes. The rest quantity of charas was sealed in the same bag. On personal search of accused, cash of Rs. 500 were recovered from his shirt pocket. Such memo of arrest and recoveries was prepared at the spot and he acted as mashir. He acknowledged the contents of mashirnama Exh.3/B.

11. In the cross-examination, this P.W. deposed that daily diary entry was actually maintained by complainant/Investigation Officer. He admitted that case property was wrapped in coloured plastic, but its colour was not mentioned in the memo of arrest and recoveries. He also deposed that charas was in fact weighed by Excise Inspector Saleemullah Samo and had taken the weight of only one slab. The process of weighing took place inside the vehicle as we were standing outside the vehicle near its Bonnet along with accused. He also admitted as correct that since he was present outside the vehicle along with accused near the Bonnet of vehicle, hence the I.O. called him inside the vehicle and obtained his signature on the mashirnama Exh.3/B. The P.W. also admitted as correct that Excise Inspector Saleemullah had called him from outside when he was present with accused near Bonnet of the vehicle and obtained his signature, before that he had closed the case property and then ten envelopes in the bag. He also admitted that so many persons were available near the place of arrest and recovery. So many persons were also present in the hotel. He admitted that in the memo, it has not been mentioned that I.O. asked anyone from them to act as mashir. He denied that he has deposed falsely at the behest of his Excise Inspector/complainant.

12. Accused during his statement recorded under section 342, Cr.P.C. totally denied the prosecution allegations and further stated that he has been involved in the case due to dispute over the landed property and that witnesses are set up and false. He neither examined himself on Oath nor examined any defence witness.

13. Learned counsel for the appellant/accused drawn our attention to the following points and prayed that after examining entire record and proceedings shall set aside the impugned judgment and acquit the appellant/accused. (i) That the impugned judgment is opposed to law, facts and principles of criminal justice, hence not maintainable. (ii) Alleged recoveries were made in presence of police witnesses and not in presence of private persons, though evidence reveals that several independent persons were available at the time of alleged incident. (iii) It is against the natural justice that complainant, I.O. and recovery witness is the same person. (iv) The conviction of accused is manifestly and based on unsatisfactory evidence. (v) The trial Court has made subjective approach of the case and not assessed the available evidence.

14. Conversely, the learned D.P.G. appearing for the State has vehemently opposed the grant of this appeal and further added that there is sufficient evidence against the accused to connect him with the commission of offence.

15. We have given due consideration to the arguments advanced at bar by the learned counsel for the respective parties and have perused the evidence as well as the available record produced during the trial proceedings.

16. On examination of the charge Exh.2, we have consciously incorporated the same as its contents have clearly distorted the facts of the prosecution case. The purpose of framing of charge actually means commencement of trial, object to make accused aware, abreast and alert about the allegations and the basis on which allegations are levelled against him. Thus it is mandatory that charge should contain all material particulars as to time, place, the specific name of the alleged offence, the manner in which the offence was committed and particulars of the accused so as to afford him opportunity to explain the matter with which he is charged. Likewise the charge should be read over and explained to the accused and then he should be asked whether he is guilty or any defence to make.

17. Keeping in view the above procedure laid down by law and its wisdom behind it, we did not appreciate the act of trial Court who while framing the charge against the accused completely ignored the purpose of framing the charge and subsequently recording plea in the instant case. Date, time and quantity of the contraband (charas) allegedly recovered from the accused is incorrectly mentioned, which indicates that trial Court did not examine the material available before it and in a superficial manner framed the so called charge without much application of mind.

18. We are also afraid that under these circumstance how this imperfect drafted charge was read over and explained to accused by the trial Court while recording his plea.

19. In fact the actual time of arrest and recoveries is 16-8-2008 at 6-00 p.m. and not 19-8-2008 at 6-00 hours p.m. and recovered quantity of charge is ten Kgs and not 20 Kgs as mentioned by the trial Court.

20. We are quite aware of the fact that where in case only two prosecution witnesses are examined, the responsibilities of the appellate Court maximize in evaluating their testimonies.

21. Excise Inspector Saleemullah Samon of DIB Hyderabad, Exh.3 has deposed that place of arrest and recovery is quite busy. So many people remain present right from sunrise to sunset. He also deposed that there was hotel Al- Madina near the place of arrest and recovery in which so many persons were present, its owner and waiters as well. He tried to engage someone from them but nobody heeded his request, in spite of that he did not issue any legal notice as required by law neither mentioned any name from the presentees. Complainant further deposed that he is complainant of this case and Investigation Officer and recovery witness of the case.

22. In our opinion that a person so involved in multiple duties, naturally must be interested in the conviction of accused, as his efforts look like a "one man show". When we examined his testimony, it consists of many major contradiction with the evidence of P.W.2 Nawaz Ali (mashir). Complainant deposed that charas was weighed in front of the Al-Madina Hotel through EC Tahir but P.W. Nawaz Ali, mashir states that it was weighed by complainant. Mashir further deposed that weight of charas was taken by complainant inside the vehicle at that time he was holding the accused outside the vehicle. He also admitted that after everything was done, he was called by complainant who asked him to sign the mashirnama inside the vehicle, at that time. Complainant had already wrapped up the entire property in a bag. Mashir also deposed that among the ten slabs only one slab was weighed not the whole property. Complainant deposed that he had referred the case property to Chemical Examiner on the very day of recovery i.e. 16-8-2008, but Chemical report shows that property was in fact received by him on 19-8-2008. The complainant could not clear that ambiguity which remained mystery that was not solved by Excise Police. It can easily be tampered within this period of time, such possibility cannot be ruled out.

23. Before parting we would like to express our displeasure that the trial Court has also not cared, that it was following the procedure as laid down in Chapter XXII-A of the Criminal Procedure Code, which deals, trials before the High Courts and Courts of Session, and not Chapter XX of Cr.P.C. which deals, "the trials of cases by Magistrate" as it has mentioned at number of places the Sections from Chapter XX of Cr.P.C.

24. The upshot of the above discussion is that prosecution has failed to prove the case against the present appellant. Our views are further fortified by case-law reported in 1995 SCMR at Page 1345, wherein the honourable Supreme Court has held that if a single circumstance is favourable to accused, the benefit of doubt be given to the accused and not to the prosecution. The present case is riddled with many major contradictions and illegality has been committed in framing the charge as discussed hereinabove. Accordingly, we set aside the conviction and sentence of appellant/accused. Resultantly, the appeal is allowed. The appellant shall be released forthwith if not required in any other case.

25. The accused was acquitted by way of short order pronounced by this Court vide order dated 25-7-2013. Above are the reasons for our short order. AG/G-31/K Appeal accepted.