2020 PLP 70 (MLD)

FAHIM AHMED SIDDIQUI, J.

The Special Judge Sessions Judge, Jamshoro in the Special Case No. 24/2016 (The State v. Hussain Ali) arising out of Crime No.35/2016 for the offences punishable under section 6/9-C CNS Act, 1997, has convicted the appellant by passing the impugned judgment dated 4th July, 2018. The operating part of the impugned judgment is as under:-- "In view of my findings and discussion on point No. 1, I am of the considered opinion that prosecution side has successfully proved the charge against accused beyond any shadow of doubt. Accused has been found in possession of 73 kg and 790 grams Charas while transporting the same on car, therefore, charge under Section 9(c) of CNS Act, 1997 has been proved against him. As such upon the finding, I find him guilty of the offence under Section 9(c) of CNS Act, 1997. I hereby convict him under Section 265-H(2), Cr.P.C. and sentence to suffer Rigorous Imprisonment for life and to pay fine of Rs. 50,000/- (fifty thousand), in default of payment of fine to further undergo S.I. for 06 months. He is also awarded benefit of UTP period as envisaged in Section 382-B, Cr.P.C. and same period be deducted from R.I. awarded to accused."

2. We have heard the arguments and perused the record.

3. The learned counsel for the appellant contends that the appellant is innocent and has been falsely implicated. After going through different portions of the depositions of prosecution witnesses, he submits that the case of prosecution is not free from doubt. He points out that as per prosecution case, the appellant was coming from Swat but in his pocket, there were only Rs.1000/- in his pocket, which is not believable. He submits that the safe custody of the property is also questionable as the property was sent for chemical analysis with a delay of 12 days. According to him, the policemen posted at police check post were not examined, which also creates doubt about the prosecution case.

4. The learned prosecutor supports the impugned judgment on the ground that recovery is huge and contradictions are minor. In response to a query, she submits that the complainant and I.O. are same and the bearer of narcotics was not examined during trial.

5. In the instant case, the appellant, was convicted because allegedly a considerable quantity of charas was recovered from his possession. As per prosecution case, the alleged recovered quantity of narcotics was found in the exclusive possession of the appellant, as the narcotics were recovered from the boot of the car, which was driven by the applicant. It is worth considering that the alleged recovery of narcotics taken place at a police post, where at that time two policemen were posted. Those policemen were the natural witness of the incident; and as compared to patrolling police party, they would be independent and impartial witnesses but they were not made witnesses of alleged arrest and recovery. We are of the view that non-associating the police officials posted at police post as witnesses creates doubt in the prosecution case in respect of happening of the affairs as claimed by the complainant and witness in their depositions.

6. Another aspect of the case requires consideration. In the instant case, complainant SIP Umed Ali is the head of patrolling police party and allegedly a huge quantity of narcotics (chars) was recovered but the prosecution did not bother to take care of in the vital facet of the case. It is not appreciable that the complainant and Investigation Officer of an offence would be one and the same person as happened in this case. In fact, complainant and Investigation Officer are two opposing parties. It is not the duty of Investigation Officer to establish the prosecution or complainant case but it is his duty to discover the real truth from the entire story of complainant party. We are of the view that the critical and essential responsibility of Investigation Officer demands that he should not be affiliated, to or member of any party of a criminal case. We consider that it will not be out of place to point out that this sacred duty of Investigation Officer is mentioned in Rule 25.2(3) of Police Rules, 1934, which is reproduced as under: "It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person." From the language of the above rule, it manifests that Investigation Officer should not commit himself prematurely to any view or opinion of the facts for or against any person i.e. complainant or accused. Thus, even under Police Rule, 1934, it is not expected from an Investigation Officer that he should be part of the complainant party. The Hon'ble Supreme Court has observed similar view with a different angle in a case reported as 'State through Advocate General, Sindh v. Bashir and others' (PLD 1997 Supreme Court 408), wherein it is held as: "As observed above, Investigating Officer is as important witness for the defence also and in case the head of the police party also becomes the Investigating Officer, he may not be able to discharge his duties as required of him under the Police Rules". Similarly, in a case reported as 'Ashiq alias Kaloo v. The State' (1989 PCr.LJ 601), the Federal Shariat Court has observed that investigation by complainant while functioning as Investigating Officer is a biased investigation.

7. The prosecution did not take care about timely transmission of the case property to the chemical analyser. The alleged recovery of narcotics was taken place on 24-03-2016 but as per report of chemical examiner the same was sent to chemical examiner on 07-04-2016 i.e. with an unexplained delay of 14 days. As per Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, this exercise is required to be completed within seventy-two hours of the recovery. In the instant case, there is no plausible explanation by the prosecution regarding such a huge delay in sending the case property to chemical examiner. In this respect, reliance may be taken from a case of this Court reported as 'Ghulam Abbas Jamali v. The State' (2015 YLR 2085).

8. Since there is an unexplained delay in sending the case property; therefore, the safe custody of the recovered narcotics is a serious issue and the prosecution is duty bound to establish that the recovered narcotics remain in safe custody during the intervening period. In the present case, no such efforts were made by the prosecution as neither the entry of diary of property room (malkhana) was produced or the in-charge of the property room was examined before trial court. The last but not the least dent in the prosecution case was caused by non-examining PC Ejaz, who is the bearer of the recovered property from police station to the chemical examiner situated in Karachi, which also creates a serious doubt regarding prosecution case. Whenever, doubt is created, its benefit goes in favour of the accused not as a concession but as his right. As per a case of Hon'bl Supreme Courtreported as 'Tariq Pervaiz v. The State' (1995 SCMR 1354), it is settled legal position that it is not necessary that there should be many circumstances to create doubt about the guilt of accused. 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 and the same is sufficient to warrant the acquittal of the accused. We, in the existing position of affairs, are clear in our mind that the prosecution could not prove the case against the appellant, as such, the instant appeal is allowed through our short order dated 15.11.2018 and appellant was acquitted and these are the reasons for the same. SA/H-14/Sindh Appeal allowed.