2004 PLP 356 (YLR)

FAIZ MUHAMMAD QURESHI, J.

The appellant has called in question the impugned judgment dated 28-9-1999, whereby he has been convicted and sentenced to suffer imprisonment for life and to pay fine of rupees one million under section 9 of the Control of Narcotic Substances Ordinance. 1995. Brief facts of the case are that on 31-7-1995. S.-I. Ghulam Abbas of A.N.F. with staff including Mashirs A.S.-I. Amjad Ali and P.C. Abdul Hameed in uniform duly armed by official vehicle reached at Jathia Para (Mohalla), Tando Adam. It was 3-00 p.m. as they reached near the Railway gate, they found a person having a basket who seeing the police tried to escape. He was suspected and overpowered who disclosed the name as Shaukat son of Muhammad Arab Panhwar, resident of Kumbhar Para, Kali Road, Tando Adam. From his personal search Rs.270 were recovered while on opening the basket 2600 grams opium was recovered. From the recovered opium 50 grams were separated as sample and rest of the opium was sealed separately. The accused was arrested and such Mashirnama of arrest and recovery was prepared in presence of Mashirs A.S.-I. Amjad Ali and P.C. Abdul Hameed. The accused was brought to Police Station, A.N.F., Hyderabad, where S.-I. Ghulam Abbass on behalf of the State lodged the F.I.R. under Articles 3/4, Prohibition (Enforcement of Hadd) Order, 1979 and sections 6, 9, 12, - 13 of the Control of Narcotic Substances Ordinance, 1995. The accused was then interrogated and during interrogation who on 4-8-1995, voluntarily led complainant S.-I. Ghulam Abbass and his subordinate staff including same Mashirs to Jathia Para near Railway gate, Tando Adam. It was 3-15 p.m. when from nearing the door of a vacant Otaq accused dug out the ground and by discovering two kilograms Charas and 200 grams opium produced before the complainant. Complainant then obtained the sample of twenty grams from opium as well as the Charas and sealed separately the said property. A.S.-I. Ghulam Abbass effected the recovery and prepared such Mashirnama in presence of same Mashirs i.e. A.S.-I., Amjad Ali and P.C. Abdul Hameed. After completing the investigation on 15-8-1995, the case was challaned in the Court at Sanghar. In the challan accused Shaukat Ali alias Malhar was shown in custody while Khadim Hussain, Qayum and Shah Muhammad were shown as absconders to face trial under Articles 3/4, Prohibition Enforcement of Hadd) Order, 1979 and sections 6, 9, 12, 13 of the Control of Narcotic Substances Ordinance, 1995. The absconding accused are still at large. Accused Shaukat Ali was then charged under section 9 (c) of the Control of Narcotic Substances Ordinance, 1995 and did-not plead guilty. Prosecution examined complainant A.S.-I., Ghulam Abbass as Exh.11 who produced F.I.R. as $xh.12, Mashirnama of arrest and recovery as Exh.13, Mashirnama of recovery of opium as Exh.14 and reports of Chemical Examiners as Exhs.15 and 16 respectively. Prosecution further examined Mashir P.C. Abdul Hameed as Exh.17 and then by statement, Exh.18, prosecution closed its evidence. Accused in his statement Exh.19 denied the allegations as false and has stated that Arman Shah and Qayum Pathan had come to the shop of Jawaid where he was serving as a salesman to sell the cloth. They had purchased the cloth on credit basis and then failed to pay the money and when he demanded the money from them, they exchanged harsh words for 3/4 times. They further stated that about Rs.5,000 were outstanding against Arman Shah and Qayum. They came with Amjad Pathan of Naroctic Police Force and then got him falsely implicated in this case. Subsequently, the amended charge was framed as Exh.21. The prosecutor then with his statement produced six documents, letters addressed to Chemical Examiner and the receipt in respect of the case property, attested copy of Roznamcha entry dated 30-9-1995 and 2-10-1995. Further evidence is not led by the accused and statement was made by defence counsel to this effect dated 3-2-1999. The trial Court formulated the points for determination and after hearing the learned counsel for the parties and going through the evidence adduced by the prosecution passed the judgment in terms as stated above. We have heard the learned counsel Mr. Syed Madad Ali Shah for the appellant and Mr. Aslam Parwaiz S.P.P. for A.N.F. Hyderabad. Mr. Syed Madad Ali Shah has invited our attention on charge which is said to have been framed on 8-2-1996 by the `trial Court and submitted that in charge the date is mentioned 31-7-1995 but the time is mentioned 12-00 hours (noon time). Mr. Shah further invited our attention on the statement of the appellant/accused and submitted that even in statement under section 342, Cr.P.C. the learned trial Court has mentioned time 12-00 hours (noon time) and submitted in this regard that it is a claim of the prosecution witnesses that the incident has taken place on 31-7-1995 at 3-00 p.m. and yet the learned trial Judge in charge has mentioned 12-00 hours (noon time) as well as in statement under section 342, Cr.P.C. and according to him the prosecution is not certain with regard to the time of occurrence as the trial Court again framed the charge on 11-3-1997 and has drawn our attention at page 56 of paper book which amended charge in which too the time of incident has been mentioned 12-00 hours. Mr. Syed Madad Ali Shah, further submitted that on 4-8-1995 at 15-15 hours the appellant led police party to his house from where two K.G. Charas was recovered and he has been acquitted from that charge by the same impugned judgment dated 28-9-1999 by the learned Special Judge, C.N.S., Hyderabad. Mr. Shah has further invited our attention on the Chemical Report and submitted that it is a claim of the prosecution that 2 k.g. Charas and 600 grams of opium is said to have been recovered from the possession of the appellant at Jathia Para, Tando Adam, on 31-7-1995, at 3-00 p.m. and in chemical report the weight has been shown 36.370 grams, without any wrappers the weight has been shown 35.170 grams and according to Mr. Shah even there is lot of difference between the quantity of the substance. According to chemical report which is in conflict with the version of the prosecution as it is a claim of the prosecution that 2 k.g. Charas and 600 ,grams of opium was recovered from the possession of the appellant/accused. He has further argued with vehemence that there is a delay of 2 months and 1 day in sending the said substance to the Chemical Expert and the same has been sent through P.C. Atiq Khan who has not been examined by the trial Court. He has further argued that the prosecution depends on Entry No.6, and submitted that no such Entry No.6 has been produced by the prosecution and no production of such document vide Entry No.6 has cut the root of the prosecution's case. Mr. Syed Madad Ali Shah has further submitted that according to Chemical Report it is clear that the property was not sealed at the spot. Even property, has not been exhibited in Court and has drawn our attention on the deposition of the witnesses where it is mentioned that property lying in Court is same. According to Mr. Shah it is not clear which property and the same has not been exhibited. Mr. Shah has further submitted that the present appellant was booked under section 9(c) of the Control of Narcotic Substances Ordinance, 1995 wherein the capital punishment is in store for the accused and yet no independent Mashir has been associated on the factum of recovery by the complainant party and the answer is being given by the witnesses that no person from the locality from where the recovery has been effected became prepared to act as Mashir. According to Mr. Shah no notice has been sent by the complainant party to such persons who refused to associate the complainant party and even no case has been registered under section 187, P.P.C. and finally he argued that no offence has been proved by the appellant and prayed for the acquittal of the appellant. In support of his contentions Mr. Shah has placed reliance on 2000 PCr.LJ 1360-1363 wherein it has been held by this Court on the delay of sending the substance to the Chemical Analyser and the benefit-of doubt has been accorded to the accused and appeal has been allowed. He has also placed reliance on 1996 MLD 428-433 wherein it has been held that if there is a discrepancy of weight with regard to the substance, the benefit of doubt goes to the accused. He has also placed reliance on 1996 PCr.LJ 1410; 1998 PCr.LJ 1368 wherein it has been held by this Court that the property not exhibited before the trial Court has vitiated the trial and the benefit of doubt has been accorded in favour of accused. It has been also held in the aforementioned decisions of this Court that the non-production of the entry cuts the root of the prosecution's case as the same entry is a genuine document and the benefit of doubt has been accorded in favour of the accused. Mr. Shah has further placed reliance on PLD 1996 SC 574 with regard to the provisions of section 103, Cr.P.C. On the other hand Mr. Aslatn Parwaiz, S.P.P. for A.N.F., Hyderabad, could not face the queries of this Court on the point of time of incident, delay in sending the substance to the Expert, difference of weight, non-production of Entry No.6, no notice has been sent to the persons who refused to associate the complainant party and no case has been registered against such persons under section 187, P.R.C. and very frankly admitted that the Entry No.6 has not been produced before the trial Court and the difference of weight has not been explained and delay in sending the substance to the Chemical Examiner goes unexplained by the prosecution and even no application for amending charge has been filed by the prosecution before the trial Court with regard to the time of incident as it is a claim of the prosecution that the occurrence took place on 31-7-1995 at 3-00 p.m. but in charge and 342, Cr.P.C. statement of the appellant the time has been mentioned 12-00 hours (noon time). However, Mr. Aslam Parwaiz, S.P.P. for A.N.F., Hyder abad submitted that at the most the case can be remanded for fresh trial on the point of charge being defective and half-heartedly supported the impugned judgment. We have heard the learned counsel for the parties and have gone through the material available on record and with their assistance we have also gone through the evidence adduced by the prosecution. Admittedly the occurrence has taken place on 31-7-1995 at 3-00 p.m. and the place of Wardat has been shown Jathia Para, Kali Road, Tando Adam, and we have very carefully examined the charge framed by the trial Court and the amended charge framed by the trial Court and the statement of the appellant under section 342, Cr.P.C. wherein the time of incident by the learned Presiding Officer while framing charge has been shown 12-00 hours (noon time) and no where we have been able to find out time of occurrence on 31-7-1995 at 3-00 p.m. and it is a claim of the prosecution that time of occurrence is 3-00 p.m. and yet the learned trial Judge has not taken into consideration the time of incident which is very material in such case and, therefore, we are of the considered 'view that the learned trial Judge has not applied its mind on the evidence adduced by the prosecution. Admittedly there is a delay of two months and one day in sending the substance recovered from the possession of the appellant and such delay goes unexplained which too has been admitted by Mr. Aslam Parwaiz learned S. P. P. and furthermore the same has been sent through P.C. Atique who has not been examined by the prosecution before the trial Court and such inordinate delay goes unexplained and renders doubt on the prosecution's version. With regard to time of incident even no application for amending charge has been moved by the prosecution whereby the prosecution could have invited the attention of the trial Court that the time of incident is 3-00 p.m. and not 12-00 hours (noon time) and the charge requires to be amended and such fact has been admitted by Mr. Aslam Parwaiz, S.P.P. that no such application whatsoever has been moved by the prosecution for amending charge. We also find lot of difference of weight and we have very minutely examined Chemical Report and that also renders doubt on the prosecution case. Entry No.6 has not been produced by the prosecution before the trial Court which is a genuine document because the entire case of the prosecution depends on the Entry No.6 whereby the police party leaves the police station for patrolling or checking and it was the bounden duty of the prosecution to get produced such genuine document before the trial Court. Inference can be drawn against the prosecution that the police party did not leave the police station and every thing has been done at the police station as the enmity has been suggested by the appellant in his statement before the trial Court. The place of Wardat is thickly populated area and according to the prosecution it was 3-00 p.m. We have gone through the entire record and we ace of the considered view that present appellant has been booked under section 9(c), Control of Narcotic Substances Ordinance, 1995 and the punishment is hanging and since the capital punishment is in store for accused it was the bounden duty of the complainant party to associate two respectable Mashirs of the locality on the factum of recovery which has not been done in the instant case and the reply is being given that nobody became prepared to act as Mashir but no such action has been taken by complainant party against those persons who refused to associate them as required under section 187, P.P.C. Even no F.I.R. has been registered against those persons under section 187, P.P.C. Even property has not been exhibited before the trial Court and we have very carefully examined the evidence available on record. It is only mentioned that the property lying in the Court is same. The question arises, which property, there are kinds of properties and in the instant case the opium has been recovered and it was the duty of the prosecution witnesses to tell the Court that the opium recovered from the appellant is lying in the Court and it was the duty of the learned trial Court to get it exhibited but in the instant case nothing has been done in this regard and we are being fortified by the decision given by this Court reported in 1996 PCr.LJ 1410 and 1998 PCr.LJ 1368. We have also examined that the recovery has been effected from the appellant of 2 K.gs. Charas and 600 grams of opium and yet 50 grams of opium was separated and there is nothing on the record as to what happened to the rest of the quantity of the substance which also goes unexplained. We have also noted with care that on 4-8-1995 at 15-15 hours the afore-named appellant led police party to his house and produced 2 K.gs. Charas and from that charge he has been acquitted by the same Judge in the same judgment dated 28-9-1999. We are of the view that the learned trial Judge has not taken into consideration the entire facts of the case while delivering the impugned judgment. We are being fortified by the law cited by the learned counsel for the appellant. The upshot of the above discussion is that the prosecution has failed to establish its case beyond reasonable doubt against the present, appellant and there is authority of Honourable Supreme Court reported in 1995 SCMR 1345, wherein Honourable Supreme Court has held that if a single circumstance is favourable to accused, the benefit of doubt is given to the accused and not to the prosecution and in the present case the entire case is riddled not only with material contradictions but the illegality has been committed and accordingly we set aside conviction and sentence of the appellant. In result this appeal is allowed. The appellant shall be released forthwith if not required in any other offence. Above are the reasons for our short order dated 15-3-2001. N.H.Q./S-335/K Appeal allowed.