2014 PLP 2050 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

Appellant / convict Abdul Majeed Palari son of Abdullah was tried by the Special Judge, Control of Narcotics Thatta, on the charge of having been found in possession of contraband Charas quantified 240 grams. On conclusion of the trial, vide judgment dated 7-2-2013, the appellant was convicted and sentenced under section 9(b) of CNS Act to undergo RI for two years and to pay fine of Rs.10,000, in default of payment of fine to undergo SI for three months more, with benefit of section 382-B Cr.P.C. The appellant has assailed the impugned judgment through the captioned Appeal and has prayed for his acquittal on the fact and grounds as set forth in the memo of appeal.

2. Succinct story of the prosecution case, as narrated in the F.I.R. (Crime No. 17 of 2011) lodged on 13-9-2011, at Police Station Jhampir, district Thatta, by S.H.O. Rab Nawaz Pathan are that on the said date he proceeded alongwith his subordinate staff for patrolling purpose and when reached at railway crossing, he received spy information that Appellant Abdul Majeed was selling Charas near grid station at road side leading from Jhampir to Noriabad. On such information, he proceeded at the pointed place and at 2130 hours, they saw the Appellant, who on seeing the police party tried to escape but he was arrested with the help of staff. On enquiry, he disclosed his name to be Abdul Majeed Palari (Appellant) and from his personal search one paper bag of brown colour was recovered from side pocket of his shirt which was opened, containing two big pieces of Charas and currency notes amounting to Rs.250 were also recovered. The Charas was weighed at the spot which was 240 grams. It was sealed at the spot. Due to non-availability of public mashir, the Mashirnama was prepared in presence of two police constables and thereafter he was brought at the Police Station where the case was registered under section 9(b) CNS Act.

3. On completion of usual investigation, the appellant was charge sheeted in the court of concerned Magistrate wherefrom it was sent to the learned Sessions Judge/ Special Judge Thatta, for its trial. The copies of police papers in compliance of section 265-C Cr.P.C. were supplied and charge was framed, to which the appellant pleaded not guilty and claimed his trial.

4. At the trial, prosecution in order to prove its case examined complainant SIP Rab Nawaz Pathan, who had also acted as Investigating Officer and produced entry showing departure from Police Station, Mashirnama of recovery and arrest, F.I.R. and Chemical Report as well. P.W.2, PC Muhammad Hassan was also examined and thereafter the prosecution closed its side. Consequently, the statement of appellant under section 342 Cr.P.C. was recorded wherein the appellant has denied the allegations levelled against him and submitted that both P.Ws. are police officials and deposed against him due to enmity. He has also claimed his innocence. Following points for determination framed by the trial court needs consideration:-- "Whether on above 13-9-2011 at 2130 hours at pacca road leading Jhimpir to Nooriabad adjacent to Grid Station Jhimpir, Taluka & District Thatta, present accused was found in possession of Charas quantified 240 grams in two pieces as alleged by the prosecution?"

5. Arguments heard, record perused.

6. A perusal of deposition of both witnesses, examined by the prosecution reveals that the alleged recovery of contraband narcotic was effected at 2130 hours when the property was weighed, sealed and Mashirnama was prepared but the mashir PC Muhammad Hassan has stated that they reached at place of incident at 08:30 p.m. Mashir PC Muhammad Hassan has further deposed that contents of cloth bag were written at Police Station but the complainant deposed that PC Muhammad Hassan had written the contents over the cloth bag in which the alleged recovered property sealed at the place of incident. Mashir PC Muhammad Hassan has further deposed that the S.H.O./ Complainant had himself sewed the cloth bag containing Charas with threads with his own hands at the place of incident but the complainant deposed that the cloth bag was already available with him. Above all, it is an admitted position that the contents of the cloth bag viz. crime No. and sections etc. were written at the place of incident prior to the registration of F.I.R.

7. Prosecution evidence further reveals that the case property viz. two big pieces of contraband Charas were intact at the time of de-sealing in the court at the time of recording evidence. Although, the said narcotics was allegedly received back from Chemical Analyzer and it is surely not attracting to the prudent mind that the Chemical Examiner without de-sealing the bag examined the recovered material. More so, it appears that the alleged recovery was affected on 13-9-2011 but same was received by the office of Chemical Examiner on 17-9-2011 and it is shrouded in mystery that during the intervening period in whose custody the case property was lying, as such tampering with the case property may not be brushed aside, more particularly, the person viz HC Gul Hassan in whose custody the case property was lying during the intervening period has not been examined by the prosecution.

8. The learned trial Court, while examining and scrutinizing the prosecution evidence in para 10 of the impugned judgment, observed that:-- "

10. In cross examination he admitted that he did not ask any driver of vehicle to act as mashir, Charas was wrapped in a Khakhi colour thelhi, the khakhi colour thelhi is present in the court and that he wrote the Mashirnama in the light of headlights of vehicle while sitting. He further admitted that HC-Ghul Hassan took charas for chemical examiner on the direction of WHC. He deposed that he does not know that accused having hotel at Noori Abad where police usually took meal free of cost and on his refusal they implicated the present accused in this case. He denied that property is foisted upon him, nothing has been recovered from accused and that all formalities were completed at Police Station."

9. In the instant case, specific animosity and ill-will has been alleged against the police officials, therefore, it was incumbent upon the prosecution to prove its case by examining independent persons of the locality but neither the police examined any person of the locality nor accompanied any private person to witness the personal search and recovery of contraband narcotics, having advance information of presence of the appellant at the place of incident, who was allegedly selling the contraband Charas. The only examined marginal witness Mashir PC Muhammad Hassan is subordinate of complainant/ Investigating Officer, has not fully corroborated the deposition of his officer. Even the record does not reveal as to whether any efforts were made to persuade any person including drivers to act as Mashir of recovery, thus there was flagrant violation of provisions of section 103 Cr.P.C. On the point of joining independent persons of the locality, the reliance may conveniently be paced on the case law reported as GHULAM HUSSAIN v. THE STATE (2003 PCr.LJ 7), RIAZ HUSSAIN KALHORO v. THE STATE (2004 PCr.LJ 90) and MUHAMMAD AZIZ v. THE STATE (PLD 1996 SC 67). All these facts rendered the alleged recovery of contraband narcotics extremely doubtful.

10. Deposition of both prosecution witnesses is not found in conformity, rather there are many discrepancies in between the evidence of both examined police officials. Suffice is to say that the ocular testimony is not trustworthy, the circumstantial evidence is also not inspiring confidence. It is settled preposition in law that benefit of every doubt is to be resolved in fovour of the accused. The background of enmity definitely existed between the parties.

11. It is not out of context to mention here that for extending benefit of doubt, it is not necessary that there should be many circumstances creating doubt and if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. In the case of TARIQ PERVEZ v. THE STATE (1995 SCMR 1345), the full bench of the Hon'ble Apex Court, in the middle of paragraph 5 held that:-- "As such it cannot be said with judicial certainty that the parcel containing sample heroin was sent to the Chemical Examiner. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

12. In view of the foregoing, the conviction recorded merely on probabilities by the trial court is not sustainable in law, consequently, the appeal was allowed, resultantly the impugned judgment was set aside by short order dated 26-3-3014 and these are the reasons for above said order. HBT/A-55/Sindh Appeal allowe