2022 PLP 2047 (YLR)

ADNAN-UL-KARIM MEMON, J.

Impugned in this criminal appeal is the judgment, dated 10.12.2020, passed by the learned IIIrd Additional Sessions Judge/Model Criminal Trial Court/ Special Judge (CNS) Larkana, in Special Narcotic Case No.54 of 2020, arising out of Crime/FIR No. 14/2020, registered at Police Station Hatri Ghulam Shah, District Larkana, whereby the appellant was convicted for an offense punishable under section 9(c) of C.N.S. Act, 1997 and sentenced to suffer R.I. for six years and to pay fine of Rs.30,000/- and in default thereof to undergo S.I. for six months more; however, benefit of section 382(b), Cr.P.C. was extended to him.

2. The charge against the appellant is that, on 09.9.2020, at 1300 hours, on the main Road Banhon Jatoi Curve, Deh Panjoo Khokhar, he was arrested by the police of Hatri Ghulam Shah from a passenger van coming from Nawab Shah to Larkana on being found in possession of 4000 grams charas. The appellant was brought at police station along with recovered charas, where afore-mentioned FIR was lodged. After usual investigation, the appellant was sent up for his trial. The charge was framed by the trial Court against him, to which he pleaded not guilty. At the trial, prosecution examined four witnesses in support of its case, thereafter, the trial Court recorded the statement of appellant. under section 342, Cr.P.C., wherein he denied the allegations levelled against him and pleaded that he was falsely involved in this case. The trial Court after hearing the parties convicted the appellant and awarded sentence vide impugned judgment.

3. The main contention of the learned counsel for the appellant is that the prosecution miserably failed to establish the travelling of the appellant in a passenger van; that the I.O. of the case failed to record evidence of the driver or any passenger of the van; that the investigation and prosecution's evidence suffers from material irregularity, discrepancies and contradictions rendering the case against the appellant doubtful but the learned trial Court failed to extend benefit thereof to appellant; that the prosecution has failed to prove through cogent evidence the safe custody of the alleged recovered charas and its safe transmission to chemical examiner for analysis; hence, the conviction and sentence awarded to appellant vide impugned judgment are not sustainable under the law.

4. Conversely, the learned D.P.G. while supporting the impugned judgment has maintained that the conviction of the appellant recorded by the trial Court is fully justified as the prosecution has successfully proved its case against the appellant through ocular evidence duly corroborated with supporting documents including memo of arrest and recovery, daily diaries entries and positive report of chemical examiner; hence instant appeal is liable to be dismissed.

5. We have heard the learned counsel for the appellant as well as D.P.G. and have gone through the record with their assistance.

6. It has been brought on record by the prosecution through deposition of PW.1, ASI Sher Muhammad (Ex.3), that on 09.09.2020, he proceeded from P.S. at 0810 hrs. for patrolling purpose in a Government vehicle along with PC Passand Ali and PC Abid Ali under Entry No.02 (Ex.3/AY and reached Banhon Jatoi Curve at 1200 hrs., where he received spy information that a van was coming towards Larkana city from Nawab Shah in which a person was boarded with a sack containing charas. He then got a van coming from Nawab Shah stopped and saw the appellant sitting in the van having one sack in his lap containing charas in the shape of eight slabs lying in four packets, weighing 4000 grams. which he sealed and prepared such memo of arrest and recovery (Ex.3/B) in presence of said PCs. Thereafter, he brought the appellant at police station along with recovered charas under Entry No.08 (Ex. 3/D) and put the appellant in lock-up under Entry No.09 (Ex.3/E), registered the FIR (EX. 3/F) and handed over it to SHO along with case property and appellant for further investigation. It has further been brought on record through deposition of PW.2, PC. Qadir Bux (Ex.4) that, on 11.09.2020, he deposited recovered case property to chemical analyst under Entry No.04 (Ex.4/A), vide RC No. 59 (Ex.4/B). It has also been brought on record through deposition of PW.3, PC. Mashir Pass and Ali (Ex.5) that the alleged charas was recovered and the appellant was arrested in his presence by the PW-1 ASI Sher Muhammad. It has also been brought on record through deposition of PW.4, SHO, SIP Sajid Khan (Ex.6) that on 09.09.2020, under Entry No. 10, at 1500 hrs. (Ex.6/A), he proceeded from P.S. and inspected the place of arrest and recovery and prepared such mashirnama (Ex.6/B). He handed over the case property to WHC Ahmed Bux Siyal under Entry No. 13 (Ex.6/C) to keep in safe custody and kept such entry in Register No.19 (Ex.6/D). He produced positive report of the chemical examiner (Ex.6/G).

7. After going through the evidence brought on record by the prosecution, we have found that there are serious doubts on fair, transparent and credible investigation of the case. P.W.-1 ASI Sher Muhammad, the complainant, has not mentioned the registration number of the van and name of its driver in memo of arrest and recovery and FIR. He as well as PW.4, SHO, SIP Sajid Khan (I.O.) have failed to obtain and produce the copies of the registration book and route permit of the alleged van to establish that the alleged wagon was in fact plied on the Nawab Shah-Larkana route, which is in fact matter of great importance in view of the admission of said PW-1 in his cross-examination that no van directly runs from Nawab Shah to Larkana route: PW.4, SHO, SIP Sajid Khan (I.O.) has not recorded the statement of the driver of the van under section 161, Cr.P.C. The driver of the van was an important witness of the prosecution to establish that the appellant was in fact travelling through his van; hence, he should have been joined in investigation. The prosecution, therefore, could not be able to prove the existence and presence of alleged van, and also the fact of its stoppage on the scene of occurrence, as well as the travelling of the appellant in the van, if it existed at the date and time mentioned by the prosecution.

7. It further appears that the prosecution has not produced on record the certified copies of the original daily diary entries and entry of original Malkhana Register No.19. The departure Entry No.02 (Ex.3/A) and arrival Entry No.08 (Ex. 3/D) of PW-1, ASI Sher Muhammad dated 09.09.2020, departure entry No. 4 (4/A) of PW.2, PC. Qadir Bux dated 11.09.2020 departure entry No.10 (Ex.6/A) of SHO, SIP, I.O. Sajid Hussain, dated 09.09.2020, Entry No. 13 (Ex.6/C) whereby said I.O. allegedly handed over the case property to WHC Ahmed Bux Siyal and entry in Register No.19 (Ex.6/D) all are uncertified and hand written entries on plan papers. Even latter two entries are undated. It does not reflect from the record if original daily diary register and Register No. 19 were produced for the examination of the trial Court at the time of recording evidence of PWs; therefore, no credibility can be attached with these documents.

8. We have also observed that in case in hand the prosecution has failed to prove the safe custody of the recovered charas and its safe transmission to Chemical Examiner. The recovery of charas was allegedly affected on 09.09.2020 and the case property was sent for chemical analysis on 11.09.2020: however, it not known as to where and in whose possession the alleged samples were kept during intervening period. PW-4 SHO, SIP, I.O. Sajid Hussain (I.O.) has deposed that he handed over the case property to WHC, Ahmed Bux. Siyal to keep it in safe custody; however, said WHC has been not been examined by the prosecution, therefore, no evidence is available on record to prove the safe custody of the recovered substance at the police station and its safe transmission from said place to the office of Chemical Examiner. It has been held by the Apex Court in the cases of Abdul Ghani and others v. The State and others (2019 SCMR 608), Faizan Ali v. The State (2019 SCMR 1649). The State through Regional Director ANF v. Imam Bukhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) that in a case where safe custody of the recovered substance or safe transmission of sample of the recovered substance is not proved by the prosecution through any independent evidence, it cannot be said with any degree of confidence that the prosecution had succeeded in proving its case against an accused beyond reasonable doubt.

9. In view of above facts and reasons, we are of the considered view that the prosecution has in fact failed to prove its case against the appellant beyond reasonable doubt. It is settled principle of law that for basing conviction against the accused there should be strong evidence before the Court and if doubt even slightest arises in the prudent mind as to the guilt of the accused, benefit of the same has to be extended in favour of the accused. This appeal is, therefore, allowed. Consequently the conviction and sentence of the appellant recorded vide impugned judgment are set aside and he is acquitted of the charge by extending him benefit of doubt. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.

10. Above are the reasons of our short order, dated 13.07.2021, whereby the appellant was acquitted of the charge. JK/A-101/Sindh Appeal allowed.