2018 P Cr (PLP)

IRSHAD ALI SHAH, J.

The instant appeal is preferred by the appellant against judgment dated 16.06.2017 of learned Sessions Judge/Special Judge, CNSA Ghotki, whereby he was convicted and sentenced to undergo Rigorous Imprisonment for 4-1/2 years and fine of Rs.20,000/-, in case of non-payment of fine, to undergo Simple Imprisonment for 05 months, for an offence punishable under section 9(c) of CNS Act, for being in possession of 1250 grams of Charas.

2. It is the case of prosecution that on arrest from appellant was secured three pieces of charas weighing to be 1250 grams by police party of Police Station A-Section Ghotki, which was led by SIP Muhammad Iqbal Rajput, for that he was booked and challaned in the present case.

3. The appellant denied the charge. At trial prosecution examined complainant SIP Muhammad Iqbal produced through him "roznamcha" entries relating to his departure and arrival, mashirnama of arrest and recovery, FIR of the present case and report of chemical examiner. P.W/mashir H.C Muhammad Sachal and then closed its side by way of statement.

4. The appellant during course of his examination under section 342, Cr.P.C. denied the prosecution allegation by pleading innocence. He examined D.W Asif in his defence but refused to examine himself on oath in disproof of the prosecution allegation against him.

5. It was stated by D.W Asif during course of his examination before learned trial court that; the appellant was apprehended by police when he came at his show room and then was involved in this case falsely by making foistation of Charas upon him.

6. On conclusion of the trial, learned trial court convicted and sentenced the appellant by way of judgment which he has impugned before this court by way of instant appeal, as is stated above.

7. It is contended by learned counsel for the appellant that; the appellant being innocent was involved in this case falsely by the police, there were material contradictions in between the evidence of the complainant and his witnesses which were not considered by learned trial court in its true prospective, one piece of Charas weighing to be 250 grams was sent to the chemical examiner that too with ten days delay to its recovery, such fact too according to him was ignored by learned trial court. By contending so, he sought for acquittal of the appellant.

8. Leaned DPG has supported the impugned judgment.

9. We have considered the above arguments and perused the record.

10. It was stated by complainant SIP Muhammad Iqbal and P.W/mashir H.C Muhammad Sachal during course of their examination before learned trial court that on 11.08.2015 when they with rest of the police personnel were conducting patrol within jurisdiction of Police Station A-Section Ghotki, when they reached at G.T Road Dingro Wah, there they came to know through spy information that a person is selling Charas adjacent to brick-klin at under bye-pass Ghotki. On such information they proceeded to the place of incident. If for the sake of arguments, it is believed that; they proceeded to the place of incident together with rest of police personnel on information then they were under lawful obligation to have associated with them independent person to witness the possible arrest of the appellant and recovery of Charas from him. It was not done by them, for no obvious reason, which has rendered their proceedings to the place of incident to be doubtful one. It was further stated by them that they reached at the place of incident, there they found the present appellant standing; he was apprehended after chase, on enquiry he disclosed his name to be Mumtaz. On search from him were secured Rs.100/- and a plastic shopper, it was found containing Charas in shape of three pieces, those were weighed to be 1250 grams. One piece weighing to be 250 grams was sealed for purpose of chemical examination and then sent to Chemical Examiner during course of investigation for chemical examination. If it was so, then liability of the appellant, if any, was only to the extent of 250 grams of Charas, which was subjected to chemical examination which constitute an offence punishable under section 9(b) of the CNS Act. In that respect reference if need be could be placed upon case of Gulshan Ara v. The State which is reported at 2010 SCMR 1162. Be that as it may be. It was further stated by the complainant and his witness that a mashirnama of arrest and recovery then was prepared by them at the spot. The appellant together with the recovery so made from him then was taken to Police Station A-Section Ghotki, there he was booked in this case formally. On investigation according to the complainant he recorded 161, Cr.P.C. statements of the P.Ws and then sent the sample of Charas to chemical examiner through P.C Saeed Ahmed. It was done with delay of about ten days to recovery of Charas, as is evident of the report of chemical examiner. Why with such delay? Neither any explanation to such delay is offered nor P.C Saeed Ahmed, the prosecution was able to examine. In that situation the possibility of substitution or tampering with the sample could not be ruled out. The reference in that respect if need be could be placed upon case of Ikramullah and others v. The State which is reported at 2015 SCMR 1002. During course of cross-examination, it was stated by the complainant that; he tried to take private person as mashir but no body was found willing. The complainant in that respect was belied by P.W/mashir H.C Muhammad Sachal, by stating that no body was found available to have been taken as private mashir. In presence of such inconsistency, the evidence of complainant and his witnesses could hardly be relied upon to maintain conviction and sentence against the appellant.

11. Based upon above discussion it could be concluded safely that the prosecution has not been able to prove its case against the present appellant beyond shadow of doubt. In case of Tariq Bashir v. The State which is reported at 1995 SCMR 1345 it was held by Hon'able Supreme Court of Pakistan that no many but single infirmity is enough to make accused entitled to benefit of doubt.

12. The plea of innocence with the present appellant taken before learned trial court as such could not be lost sight of in the said circumstances.

13. In view of my findings arrived at above, the conviction and sentence, awarded to the appellant by learned trial court by way of impugned judgment cannot be sustained, it is set aside; consequently the appellant is acquitted of the offence, for which he was charged, tried and convicted. He shall be released forthwith in the present case.

14. Above are the reasons for our short order dated 27.3.2018, whereby the instant appeal was accepted. HBT/M-64/Sindh Appeal accepted.