2020 PLP 1883 (MLD)

ABDUL MAALIK GADDI, J.

Trough this criminal appeal, appellant has assailed the legality and propriety of the judgment dated 12.05.2017 passed by learned Special Judge for CNS, Tando Allahyar in Special Case No.01 of 2017, arising out of Crime No.08/2017 of Police Station A-Section, Tando Allahyar, under section 9(c) of Control of Narcotic Substances Act, 1997, whereby the learned trial court after full dressed trial convicted and sentenced the appellant under section 9(c) Control of Narcotic Substances Act, 1997, as stated in Point No.2 of the impugned judgment. For the sake of convenience, it would be proper to reproduce the Point No.2 of the impugned judgment, which is as under:- "POINT NO.

2. Section 9-c of CNS Act, 1997 provides punishment for death or imprisonment for life for a term which may extend to fourteen years and also liable to be fine which may be upto one Million rupees. In its proviso, it is also mentioned that in case the quantity exceeds 10 KG of Charas, punishment shall not be less than imprisonment for life. Though the accused has been found guilty of offence punishable under section 9(c) CNS Act 1997, but since the present accused person is a young person, and he is in jail since the day of his arrest and is facing agony of trial as well, therefore, while taking lenient view and mitigating circumstances, I convict him and sentence him under section 9-c of CNS Act 1997 for imprisonment of life and fine of Rs.1,00,000/- or in default S.I for one year. The benefit of section 382-B Cr.P.C is also extended to the accused. Accused present in custody, he is remanded to jail along with conviction warrant with directions to Jail Superintendent to carry out the sentence into execution according to law."

2. The allegation against the appellant is that on 25.01.2017 when the police party headed by ASI Nek Muhammad Khoso was on patrolling duty along with his subordinate staff and during patrolling they received spy information that the present appellant along with his companion namely Zahid Hussain, Haris and Arif was selling charas adjacent to his house at Markrani Para Tando Allahyar. On receiving such information police party reached at the pointed place and apprehended the appellant and secured 07 KG of charas, which was lying on the ground over plastic "KATTA", whereas, remaining accused named above ran away from the spot.

3. Charge was framed against the appellant, to which, he pleaded not guilty and claimed trial of the case.

4. At the trial the prosecution examined P.W-Nek Muhammad at Ex.06, who produced DD entry No.7 at 1500 hours at Ex.7, mashirnama of arrest and recovery at Ex.8, arrival entry No.37 at 2000 hours at Ex.9 and F.I.R. at Ex.10. Next witness was ASI Gulzar Ali Laghari, who was the member of police party and witnessed the incident of arrest of present accused and recovery of charas. He was examined at Ex.11. Prosecution has examined his last witness namely SIP Adam Khan Abro at Ex.12, who has conducted the investigation of instant case and produced chemical report at Ex.13. Learned DPP for the State closed the side of prosecution vide statement at Ex.14.

5. Statement of accused as required under section 342 Cr.P.C. was recorded at Ex.15, wherein he has categorically denied to have been found in possession of contra band items viz charas of 7 Kilo Grams while claiming the same as false. He however offered his willingness to examine himself on oath but he did lead defense evidence in his favour. Statement of present appellant under section 340(2) Cr.P.C at Ex.16 was also recorded.

6. Learned trial court after hearing the learned counsel for the parties and examining the evidence available on record convicted and sentenced the appellant as stated above by the impugned judgment. Hence this appeal.

7. It is argued by the learned Counsel for the appellant that the appellant is innocent and has been falsely implicated in the case due to enmity; that the incident took place on 25.01.2017 whereas case property was received by Chemical Examiner on 27.01.2017; that the charas was not recovered from the exclusive possession of the appellant; that the prosecution witnesses are all police officials, hence, there is violation of mandatory provisions of section 103 Cr.P.C; that place of incident i.e Makrani Para, near house of appellant, was admittedly thickly populated area but complainant has failed to associate any independent person to witness the event; that no fake purchaser was sent towards the accused in order to ascertain the facts of selling charas, nor any purchaser was found at place of incident; that property was sent to chemical analyzer through HC Ghulam Qadir, but the said person has not been examined by prosecution; that there are many contradictions in the case of prosecution therefore the same cannot be safely relied upon for conviction.

8. Conversely, learned Assistant Prosecutor General Sindh while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence as the impugned conviction and sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference, as such, she prayed that the appeal may be dismissed.

9. We have carefully heard the learned counsel for appellant, learned A.P.G and after going through the record come to the conclusion that the prosecution has failed to establish its case against the appellant for the reasons that it was the case of spy information which was received by the complainant ASI Nek Muhammad during patrolling at Baqa Dahri, bye-pass Chowk to the effect that the present appellant along with his companions was selling charas near his house, situated at Makrani Paro, Tando Allahyar, as such, they reached at the pointed place and found that the appellant / accused along with co-accused was standing and a "KATTA" was lying near to them on the ground and the charas was lying on it. The appellant was arrested while remaining accused escaped away on seeing the police party, and police secured 7 K.G charas in presence of mashirs ASI Gulzar Ali and ASI Ghulam Abbas. Admittedly and as per record, the complainant received spy information at Baqa Dahri, bye-pass Chowk, which was busy place but despite of this fact the complainant did not bother to associate any independent person either from the place of receiving information or from the place of incident. During course of arguments, we have specifically asked the question from learned A.P.G that why the police did not obtain the services of the independent persons when they were available either from the place of information or from the place of incident; she has no answer with her. The case of the prosecution hinges on the evidence of ASI Nek Muhammad Khoso, ASI Gulzar Ali Laghari and I.O/SIP Adam Khan Abro. Their evidence has been perused and considered by us with the able assistance of the parties Counsel and come to the conclusion that the evidence of the prosecution witnesses is contradictory to each other on material particulars of the case for the reasons that complainant ASI Nek Muhammad has stated in his examination in chief that the incident took place on 15.01.2017, whereas, the incident took place on 25.01.2017. It is stated by P.W Nek Muhammad that the place of occurrence is common street and common people used to pass there. He has further stated that the mashirnama was reduced to writing by WHC of ADRC namely PC Muhammad Bux, whereas P.W Gulzar Ali stated in his evidence that the mashirnama was reduced to writing by him on the dictation of complainant Nek Muhammad Khoso. ASI Nek Muhammad has further stated in his evidence that he handed over the custody of accused person, case property and police papers to S.H.O of PS A-Section, Tando Allahyar for further investigation, whereas, P.W SIP/SHO Adam Khan has stated in his cross examination that neither he visited the place of occurrence nor prepared such mashirnama. The said P.W/SHO has further stated that the case property was not sent by him to Chemical Examiner for its verification, whereas, chemical report showing that the property was sent by S.H.O P.S A-Section Tando Allahyar. When these contradictions confronted to learned A.P.G; she has again no plausible answer with her.

10. We have also noted that complainant says in the FIR that the present appellant along with his companion was selling the charas at the pointed place and when the police party reached there, they only arrested present appellant and remaining three accused ran away on seeing the police party. It is surprising to note that the remaining three accused fled away from the spot and the police party who was armed sophisticated weapons did not make efforts to follow these accused for their arrest. Nothing is on record that whether complainant party has made any positive efforts during the event for the arrest of absconding accused. This aspect of the case also creates doubt in the prosecution case. When confronted this aspect of the case to learned A.P.G. she has again no answer with her.

11. It is settled principle that judicial approach has to be conscious in dealing with the cases in which testimony hinges upon the evidence of police officials alone. No doubt the evidence of police officials is as good as other witnesses but when the whole case is based upon the evidence of police official as happened in this case, their evidence is required to be minutely scrutinized. During course of arguments we with the able assistance of parties' Counsel have gone through the evidence so brought on record and found that the same is contradictory on material particulars of the case as discussed above. As observed above non-association of independent witness as mashir in this case false implication of the appellant could not be ruled out.

12. It is an admitted fact that the incident took place on 25.01.2017 whereas sample parcel of the case property was received by the Chemical Examiner on 27.01.2017 through HC Ghulam Qadir. Admittedly, HC Ghulam Qadir has not been examined in this case to corroborate the version of the prosecution. The case property was received by Chemical Examiner after the delay of 2 days for which absolutely no explanation has been furnished by the prosecution. We have noted that during this intervening period before whom and where the case property was lying. For the sake of argument, if it was lying in the Malkhana no entry of Malkhana has been produced to prove the safe custody of the property. Incharge of Malkhana has also not been examined. Therefore, the question of tampering in the property in this case under the aforementioned facts and circumstances could not be ruled out.

13. It is stated by the learned A.P.G that there are numbers of criminal cases lodged against the appellant, therefore, he is not entitled for any relief. Learned Counsel for appellant has denied this fact and submits that at the moment no case is pending against the appellant except this case. Be that as it may, mere pendency of criminal cases against the appellant doesn't ipso facto debar the appellant for getting relief if otherwise he is entitled for relief on merit. Nothing is on record that the present appellant has been convicted in any of the criminal cases which has been ended up to the level of the honourable Supreme Court.

14. As per prosecution case, allegedly 7 K.G charas was recovered from the appellant but record shows that the alleged charas was not recovered from the exclusive possession of the appellant. On the contrary, the record shows that it was lying on the ground over "KATTA" and this fact doesn't appeal to prudent mind that the charas was exclusively owned by the appellant.

15. We have also noted that in this case the learned trial court has convicted and sentenced the appellant for life imprisonment with fine for 07 KG charas but as per the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), criteria for punishment is provided as under:- Charas Exceeding 6 kilograms and up to 7 kilograms Imprisonment: RI for 9 years and 6 months and Fine: Rs.45,000 or in default SI for 7 months and 15 days This case has been affirmed/approved up to the level of Honourable Supreme Court of Pakistan in the case of Ameer Zeb v. The State case (PLD 2012 Supreme Court 380), but the learned trial court ignoring this aspect of the case has awarded imprisonment for life to the appellant, which too also found on the basis of contradictory evidence, therefore, the same cannot be safely relied upon for conviction.

16. In the instant case there are also numbers of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilty of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1995 SCMR 1345 wherein the Hon'ble Supreme Court has held as under:- "The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. It 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".

17. For the above stated reasons, we hold that the prosecution has failed to prove its case against the appellant, therefore, while extending the benefit of doubt the instant appeal is allowed. The conviction and sentence awarded to the appellant vide impugned judgment dated 12.05.2017 passed by the learned Special Judge for CNS, Tando Allahyar in Special Case No.01/2017 are set aside and the appellant is acquitted from the charge. The appellant is in custody. He shall be released forthwith if not required in any other case. Since the appeal is allowed, therefore, listed application under section 426, Cr.P.C (M.A No.3910 of 2017) has become infructuous, as such, the same is disposed of accordingly. JK/T-9/Sindh Appeal allowed.