2018 PLP 106 (YLRN)

NAIMATULLAH PHULPOTO, J.

Appellant Adam Marri was tried by learned Sessions Judge/Special Court Khairpur for CNS in Special Case No.44/2012, arising out of Crime No.181/2012 registered at Police Station 'A' Section, Khairpur under section 9(c) Control of Narcotic Substances Act, 1997. After full dressed trial appellant was convicted under section 9(c) of CNS Act, 1997 and sentenced to 04 years and six month R.I and to pay fine of Rs.20,000/-. In case of default in payment of fine, he was ordered to suffer SI for 5 months more. Benefit of Section 382-B, Cr.P.C. was also extended to the accused.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 28.06.2012 SIP Barsat Ali Kanasiro of Police Station 'A' Section, Khairpur along with his sub-ordinate staff vide Roznamcha Entry No.22 at 1830 hours in Government Vehicle left Police Station for patrolling. While patrolling at various places, when police party reached at Old National Highway where it is alleged that present accused was seen by police officials. While seeing the police party he tried to run away but he was apprehended by the police, who was carrying a plastic bag in his hand and it was taken into possession by the SHO. On enquiry he disclosed his name to be Adam son of Muhammad Murad Marri. According to SHO private persons were not available therefore he made PCs Gulshan Ali and Altaf Hussain as mashirs and conducted personal search of the accused. During search 30-bore TT pistol was recovered from right side of his Shalwar, it was unloaded and it was without license. Charas recovered from the possession of accused was in polythene bag carried out by accused contained 03 pieces of Charas 02 big and 01 small. The Charas was weighed, it became 1100 Grams and it was sealed at the spot. The mashirnama of arrest and recovery was prepared at the spot and thereafter the accused and case property were brought at Police Station whereas separate FIRs were lodged against accused on behalf of State. Present FIR against accused was lodged under section 9(c) Control of Narcotic Substances Act, 1997. After registration of FIR mashirnama of arrest and recovery, FIR and custody of accused were handed over to SIO Zulifqar Ali of Police Station Shah Abdul Lateef for investigation. During the investigation, 161, Cr.P.C. statements of PWs were recorded, I.O. inspected the place of wardat. He sent Charas to the Chemical Examiner for analysis and received positive report. On the conclusion of investigation, he submitted separate final report against the accused in the present case and case was challaned against the accused under Section 9(c) Control of Narcotic Substances Act, 1997.

3. The charge was framed against accused Adam Marri by the learned Sessions Judge/ Special Court for CNS Khairpur under section 9(c) Control of Narcotic Substances Act, 1997 at Exh.2, accused pleaded not guilty and claimed to be tried.

4. At the trial, prosecution examined mashir PC Ghulam Ali at Exh.04, who produced a memo of arrest and recovery at Exh.4/A. PW 2 complainant SIP Barsat Ali at Exh.5, who produced an extract from station diary at Exh.5/A and F.I.R at Exh.5/B. PW 3 SIP Zulfiqar Ali Qureshi at Exh.06, who produced a letter addressed to SSP, Khairpur at Exh.6/A, letter issued by SSP Khairpur at Exh.6/B and a Chemical Examiner's Report at Exh.6/C. There-after, Special Prosecutor closed the prose-cution side vide his statement at Exh.07.

5. The statement of accused under section 342, Cr.P.C. was recorded at Exh.08. The accused claimed false implication in this case, denied prosecution allegations and raised plea that the SHO has falsely implicated him as PWs are interested and they are subordinate to the SHO. The accused did not examine himself on oath in disproof of prosecution allegation nor led any defence. However, in question what he has to say, accused replied that he is innocent and he has been falsely implicated in this case and raised plea that he was arrested from home on 20.06.2012 and was involved falsely at the instance of one Raees Jum Marri due to dispute over land. In support of his defence plea he has produced news cutting of Daily SOBH dated 21.06.2012 at Exh.8-A & B.

6. Learned trial Court after hearing the counsel for the parties and assessment of evidence available on record convicted and sentenced the appellant as stated above; hence the aforesaid appeal is preferred before this Court.

7. The facts of this case as well as evidence are elaborately mentioned in the judgment of the trial Court and therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned counsel for the appellant mainly contended the appellant was also charged under Section 13(d) Arms Ordinance and he has been acquitted. by the trial Court in that case. He further argued that the evidence of the prosecution witnesses have been disbelieved by trial Court to that extent. He further submitted that there were material contradictions in the prosecution evidence. He referred to the evidence of prosecution witnesses and stated that according to the PW 1 Gulshan Ali 02 small pieces and 01 big piece were recovered from the possession of accused and the report of Chemical Examiner reflects that parcel contained 02 big pieces and 01 small piece of the Charas. Counsel for the appellant further submitted that accused was arrested from National Highway, it was evening time, no efforts were made by the SHO to call independent and respectable persons to act as mashirs of recovery proceedings. It is argued that according to the case of prosecution, Charas was recovered from the possession of accused on 28.06.2012 but it was sent to the Chemical Examiner on 09.07.2012, such delay in sending the Charas to Chemical Examiner has not been explained by the prosecution. It is also argued that no evidence has been produced by the prosecution to establish the safe custody of the Charas at Police Station so also it's safe transit to the Chemical Examiner. Counsel further argued that PC Mumtaz Ali who had taken the Charas to the Chemical Examiner has also not been examined. He argued that Charas has been foisted upon the appellant at the instance of one Wadero Juma Marri, who was on inimical terms with appellant. Counsel for the appellant referred to the news-clipping submitted by the appellant with his statement, to show that the appellant was under arrest at Police Station on 21.6.2012. Lastly, it is contended that prosecution case is highly doubtful and the learned trial Court has failed to appreciate the evidence according to the settled principle of law. In support of his submissions, the learned defence counsel has placed reliance upon the case of Ikramullah v. The State (2015 SCMR 1002) and Tarique Pervaiz v The State (1995 SCMR 1345).

9. Learned Addl.P.G appearing for the State conceded to the contentions raised by the learned counsel for the appellant and did not support the judgment of the trial Court.

10. We have carefully heard the learned counsel for the appellant and learned Addl.P.G for the State and scanned the entire evidence available on record.

11. We have come to the conclusion that prosecution has failed to establish it's case against the appellant beyond any shadow of doubt for the reasons that according to the case of prosecution the appellant was arrested by SIP Barsat Ali Kanasiro on 28.06.2012 at 1900 hours at National Highway and from his possession 03 pieces of Charas total 1100 Grams were recovered. From the evidence of PW 1 PC Gulshan Ali it is reflected that 02 small pieces and 01 big piece of Charas were recovered from the possession of the accused. From minute scrutiny of the report of Chemical Examiner, it appeared that parcel contained 02 big pieces and 01 small piece of Charas, for which the prosecution has no explanation to satisfy the Court about this infirmity/ambiguity. Apart from this, the Charas was allegedly recovered from the possession of accused on 28.06.2012 but it was dispatched to the Chemical Examiner on 09.07.2012 for analyses. In the background of delay in sending Charas to the Chemical Examiner, allegation of tampering with case property and keeping in view defence plea no reliance can be placed upon the positive report of Chemical Examiner. The plea raised by the accused that he has been falsely involved at the instance of Raees Alma Mari in this case has not been examined by trial Court deeply. Record reflected that no evidence has been produced by the prosecution to establish that Charas was kept in safe custody at Police Station on 28.6.2012, not a single word has been deposed by SHO regarding safe custody of Charas at Malkhana. Even no entry regarding safe custody of Charas at Malkana has been produced before the trial Court. Safe transit of Charas to Chemical Examiner from P.S. has also not been proved. According to prosecution case, the Charas was transmitted to the Chemical Examiner through PC Mumtaz Ali, he has also not been examined to satisfy the Court about the safe transit of Charas. The defence plea has been substantiated by news cutting. News-clipping also reflects the highhandedness on the part of the concerned SHO and detention of appellant at Police Station before registration of this case. On the point of safe custody of Charas and it's safe transit, Honourable Supreme Court in the case of Ikramullah (supra) has held as under:- "

5. In case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the investigating officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit."

12. There are several circumstances/ infirmities in the prosecution case. It is settled law that it is not necessary that there should be many circumstances creating doubts. If there is a single 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 as held in the case of Tariq Pervez (supra).

13. For the above stated reasons, we have no hesitation to hold that prosecution has failed to establish its case against the appellant beyond reasonable doubt. Therefore, by extending the benefit of doubt, the appeal is allowed. The conviction and sentence recorded by the trial Court vide judgment dated 20.05.2016 are set aside. Appellant is acquitted of the charge. Appellant Adam Marri is present on bail, his bail bond stands cancelled. Surety is hereby discharged. JK/A-87/Sindh Appeal allowed.