2025 PLP 2210 (YLR)

Adnan-ul-Karim Memon, J.

Appellant Nadir Ali has assailed the Judgment passed by the learned Additional Sessions Judge-III//MCTC-II/ Special Court CNS Sukkur in special case No.152 of 2021 (Re-State v. Nadir Ali and others). whereby he has convicted the appellant for the offense under section 9 (c) CNS, Act 1997 and sentenced him to suffer Rigorous Imprisonment for (07) years and (06) months and also to pay a fine of Rs. 35,000/- (Thirty-five thousand) and in default of payment of fine, he shall also suffer simple imprisonment for six months and 15 days.

2. The facts of the prosecution case as per FIR are that on 05.10.2021 at about 12:20 hours, the raiding party of PS ANF, Sukkur headed by Inspector/SHO Muhammad Saqlain, found the accused namely Nadir Ali son of Bashir Ahmed Rind, in possession of black shopping bag, lying on the petrol tank of his motorcycle, near main Gate Bus Stand Shikarpur Road Sukkur, who on seeing the raiding party managed to flee away by his motorcycle whereas his black color shopping bag and black color wallet fell there. The ralding party after recovery found the black shopping bag to be stuffed with 47 tokens in Momi Envelopes wrapped with yellow insulation tap weighing 500 grams of charas and 04 single slab packets weighing three and a half kilogram charas, as the total weight of charas became 4 kilograms. The wallet was found to contain cash of Rs. 500/- and his CNIC, in the presence of mashirs namely HC Rehmatullah and PC Nadir Ali, under a memo of recovery. Hence, the Inspector lodged an instant FIR Police after the usual Investigation submitted a charge sheet before the Court of Learned Judicial Magistrate-II, Sukkur, showing the accused Nadir Ali as an absconder, the prosecution examined PW-01 Inspector Muhammad Saqlain Chaudhary at Ex. 04, he produced entries Nos. 3 to 5 regarding departure and arrival on one page, memo of recovery, FIR, letter dated 06.10.2021 addressed to Chemical Examiner Rohri, report of Chemical Examiner Rohri, letter dated 06.10.2021 addressed to NADRA, report of NADRA dated 12.10.2021, letter addressed to SSP Ghotki and entry No. 534 of Register No. 19 at Ex. 04/A to Ex. 04/1 respectively; PW-02 PC Nadir Khan Brohi at Ex. 05, he produced his departure as well as arrival entry on one page and road certificate at Ex. 05/A and Ex. 05/B respectively. It is noted that when the appellant came to know about the subject case, he obtained Pre-arrest bail and joined the trial on 06.06.2022. The trial court after supplying him necessary documents at Ex. 09, framed a formal charge against him at Ex. 10 and recorded his plea at Ex. 10/A, wherein; he did not plead his guilt and claimed for trial. The appellant also stated that he had been falsely implicated in the case at the instance of his relative Ajmal son of Ayoob who was posted as Inspector in ANF due to having a matrimonial dispute with him.

3. Prosecution, re-examined PW-01 Inspector Muhammad Saqlain Chaudhary at Ex. 11; PW-02 PC Nadir Khan Brohi at Ex. 12; PW-03 Inspector Basheer Ahmed Pathan at Ex.13, he produced his report at Ex. 13/A. The learned SPP for ANF closed the side at Ex.

14. The statement of the appellant as required under section 342 Cr.P.C. was recorded at Ex. 15, in which, he denied all the allegations of prosecution witnesses leveled against him and pleaded his innocence. The appellant, however; neither ventured into to witness bax to adhere to his innocence on cath nor led defense evidence and also claimed that the entire case property viz. Charas, cash amount, and wallet have been foisted upon him except his CNIC which was stolen by SIP Muhammad Ajmal Rind from his house with the association of his relatives, which may be restored to him. He also claimed that the Report of the Chemical Examiner as well as other documents produced by the prosecution witnesses were also managed documents.

4. Learned counsel for the appellant contended that the appellant had been falsely implicated in this case and the ANF Police had planted a fake case upon him. Contends that the narcotic was not recovered from the appellant and they allegedly found it from one shopper bag and based on his CNIC he has been booked; even otherwise the alleged incident took place in broad daylight in a busy thoroughfare but none from the public was associated in this case to depose against him. Contends that the prosecution could not prove safe custody of the allegedly recovered narcotics and its safe transmission to the Police Station and then to the Laboratory for chemical analysis, there, the alleged portion sent to the Laboratory for chemical analysis cannot be used against the appellant to sustain his conviction. Lastly contends that the reasons given by the learned trial Court to sustain the conviction of the appellant are speculative and artificial, therefore, the impugned judgment may be set at naught.

5. The learned Special Prosecutor, after having gone through the available record stated that the charge has been fully established against the appellant as the prosecution has produced overwhelming incriminating evidence against him.

6. We have heard both sides and have also gone through the material available on record.

7. PW-01 Inspector Muhammad Saqlain Chaudhary has deposed that on 05.10.2021 he was posted at PS ANF Sukkur and on the same day at about 12:05 p.m. he was available at PS, where the spy informer came. He received spy information through superior officers that drug seller Nadir Ali was selling drugs near Main Gate Bus Stand Shikarpur Road Sukkur and it was also informed that if immediate action was taken then the arrest of the accused and recovery of narcotics was possible. After that, a raiding party was constituted under his supervision consisting of HC Rehmatullah, PC Nadir Khan, PC Muhammad Ahmed, PC Babar Hussain, PC Toufeeq-ul-Hassan, PC Mohsin Ali, PC Driver Masood Hussain, HC Driver Musassir Imran, HC Driver Mudassir Masood and spy informer. They duly armed and left the police station in Govt. Double Cabin Vehicle No. GP-3152 and HIACE No. GP-5602 under Roznamcha entry No. 03 at 12:15 p.m. and when they were about to reach at pointed place where saw one person sitting on a red color motorcycle without a number plate and having a shopping bag of black color on the petrol tank of the motorcycle. The spy informer told them that the said person was the drug seller Nadir Ali. Accused Nadir Ali on seeing the raiding party coming towards him, moved away on the motorcycle from the place of the incident and his black color shopping bag and black-colored wallet fell at the place of the incident. They chased the accused Nadir Ali except for PC Babar Hussain who remained at the place of the incident but the accused succeeded in running away from the place of the incident by taking advantage of the narrow streets. They searched for the accused but could not succeed in finding him. Thereafter they returned to the place of the Incident and asked some persons to act as mashirs but they refused, therefore, he appointed HC Rehmatullah and PC Nadir as mashirs and checked the recovered black color wallet and black color shopping bag of the accused. They recovered the original CNIC of the accused showing the particulars as Nadir Ali son of Basheer Ahmed resident Chowk Mari Post Office and Tehsil Ubauro, District Ghotki, and cash of Rs. 500/- In the denomination of Rs. 100/- each from black color wallet. They opened the black color shopping bag and found 47 stapled tokens packed in MOMI Envelopes and 04 packets in MOMI Envelopes wrapped with yellow solution tape. They opened 47 tokens, and found charas in sald tokens; they again stapled the said tokens and on weighing all tokens became 500 grams. They checked four packets by cutting and found a single slab of charas in each packet and weighed all four packets wherein the weight of 03 packets became 01/01 Kilo gram and the weight of one packet became 500 grams as such the total weight of four packets and 47 tokens became 04 kilograms of charas. Thereafter, 47 tokens were put into a MOMI Envelope and packed in a white color cloth parcel put the seal of M.S., and parcel No. 1 for chemical analysis. He put serial numbers 01 to 04 on recovered four packets, and from each packet, 10 grams of charas for chemical examination was taken and packed in four MOMI and Khaki Envelopes and also put serial numbers 1 to 4 on four Khaki envelopes and the sald envelopes were put into the white color cloth bag/parcel and put the seal of M.S and prepared parcel No.

2. He also put 04 packets of remaining charas in another white color cloth bag/parcel and sealed with the seal of M.S and prepared parcel No.

3. Thereafter, he prepared mashirnama of recovery at spot and took the case property in possession. He read over the contents of the mashinama to his mashirs who verified the same and put their signatures on it as well as on the parcels. Thereafter, they returned to PS ANF Sukkur along with the case property and registered FIR bearing No. 17/2021 under section 9-C CNS Act 1997 against accused Nadir Ali. He wrote the FIR Number on all three parcels. He was also in-charge of Malkhana, hence he deposited the case property in Malkhana under entry No. 534 in register No. 19 of PS. Thereafter, he recorded the Statements under section 161 Cr.P.C of PWs namely HC Rehmatullah and PC Nadir Khan at PS. On 06.10.2021 parcels Nos. 1 and 2 were sent to the chemical laboratory Rohri through PC Nadir Khan along with relevant documents who submitted the same on the same date and handed over the receiving documents. On 06.10.2021 he wrote a letter to NADRA for the record of absconding accused Nadir Ali and also wrote a letter to SSP Ghotki for collecting the criminal record of accused Nadir All. He received the NADRA record and report fromthe chemical examiner as "Positive". He tried to arrest the absconding accused but could not succeed. On 20.10.2021 he submitted the interim challan and on 28.10.2021 submitted the challan under section 512 Cr.P.C. before the court having jurisdiction. He in support of his contention produced entries Nos. 3 to 5 regarding departure and arrival on one page, memo of recovery, FIR, letter dated 06.10.2021 addressed to Chemical Examiner Rohri, report of Chemical Examiner Rohrl, letter dated 06.10.2021 addressed to NADRA, report of NADRA dated 12.10.2021, letter addressed to SSP Ghotki and entry No. 534 of Register No.19 at Ex.04/A to Ex.04/1 respectively.

8. PW-02 PC Nadir Khan Brohi recorded his evidence at Ex. 12, wherein he supported the version of PW-01 and he in support of his contention also produced departure as well as arrival entry on one page and road certificate at Ex. 05/A and Ex. 05/B respectively.

9. PW-03 Inspector Basheer Ahmed has deposed that on 30.06.2022 he was posted as SHO at PS ANF Sukkur and on the same day he submitted the subsequent report of accused Nadir Ali in Court.

10. The prime question is whether the black color shopping bag and black color wallet allegedly fell at the place of the incident belonged to the appellant as he was not arrested from the place of the incident but due to the availability of his CNIC in his wallet, he was booked under Section 9-C of CNS Act 1997, of PS ANF Sukkur. The complainant admitted that he did not know the appellant but he was arrested based on his CNIC by seeing his photo. This is the position of the case, it cannot be said that the appellant was transporting the narcotic on 05.10.2021 as possession and transportation of narcotics has not been established on the record. As the appellant has been arrested based on his CNIC, thus Sections 6 and 9-C of CNS Act 1997, as charged. Besides after the arrest of the appellant, his identification parade was not held which shows doubt in the prosecution case. Brasdes the delay in sending samples of chars to the chemical examiner cannot ignored since its safe custody at Malkhana was questioned which the prosecution had not answered satisfactorily by adducing reliable evidence to prove the case against the appellant and the learned trial Court while passing the verdict against the appellant has ignored all the material points of the case.

11. In the case of Narcotics Substance, the prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is gullity unless the accused proves that he was not in possession of such drugs. Therefore, the prosecution must establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with them. If the prosecution proves the detention of the article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prave something within the exclusive knowledge of the accused must have made the Legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word 'Possess' appearing in section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offense as the word "possess" connotes in the content of section 6 possession with knowledge. The Legislature could not have intended to mere physical custody without knowledge of an offense, therefore, the possession must be conscious. Nevertheless, it is a different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by section 29, the prosecution has only to show by evidence that the accused has dealt with the narcotic substance has physical custody of it, or is directly concerned with it unless the accused proves by a preponderance of probability that he did not knowingly or consciously possess the article. Without such proof, the accused will be held gulity by section 29, Act 1997. However, in the present case, the appellant was not arrested redhanded with narcotics but subsequently joined the trial after obtaining bail and was convicted based on the recovery of his CNIC from the place of the incident with the presumption that it was he who was transporting the charas this presumption must be substantiated with cogent evidence that he was dealing the such Narcotics previousty and was is indulged Insuch sort of business, which chain is missing in the present case and creates doubt as he was not seen by the prosecution while riding on the motorcycle on the day of the Incident as the police officers deposed that they did not know each other previously.

12. It is significant to note that as per the prosecution's case, this incident had occurred in a busy area i.e. main Gate Bus Stand Shikarpur Road Sukkur (public place) where many private persons were available, but no efforts were made by the Investigating Officer of the crime to arrange any witness of the locality, who might have seen the appellant in any manner linked with the narcotics dropped from his Motorcycle and police recovered the subject drugs. No doubt application section 103, Cr.P.C. has been excluded under Section 25 of Control of Narcotic Substances Act, 1997, yet the necessity of employing a private person as mashir cannot be overlooked for the reason that the place of incident was a busy place and people were present and it was a day time. The Investigating officer admitted in evidence that it was a busy place and people were available. It means there was a deliberate avoidance of obtaining an independent mashir on the free ride of Section 25 of the CNS Act. The complainant has not given any explanation as to why he did not request any person to become a witness to the recovery of drugs from the place of the incident. In view of the observations of the Supreme Court in the case of Haroon Rasheed v. The State (2020 PCr.LJ Note 172), we are of the considered view that the prosecution for protection of Section 25 of the CNS Act has to give justified reasons, otherwise, non-compliance of Section 103 of the Cr.P.C. would be fatal. In the case at hand, the failure of the prosecution to gather otherwise available independent witnesses is more than enough to create serious doubts in their case against the appellant.

13. In principle, the Investigation Officer was under a statutory duty to discover the facts of the case and arrest the real offender(s). Such duty is ordained on an Investigation Officer, but he based his entire case on the recovery of the CNIC of the appellant, which factum is not sufficient to award conviction based on such recovery of CNIC as the alleged Charas was not recovered from the possession of appellant as he was not arrested from the spot;Besides the handling of the recovered narcotics drugs from the spot in a dubious manner as evident from the above evidence, the prosecution has also failed to explain the delay in sending the recovered narcotics to the chemical examiner. The lack of corroborative evidence to connect the appellant with the Charas allegedly recovered from the spot and other several legal flaws noted in the above discussion, the conviction of the appellant seems to be not under the law.

14. After the reassessment of material available on record we found that in the present case, there are also several infirmities/lacunas, which have created serious doubt in the prosecution case. It is a settled principle of law that for extending the benefit of the doubt, there doesn't need to be multiple circumstances creating doubt. If a single circumstance, creates reasonable doubt in a prudent mind about the guilt of the 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 (1995 SCMR 1345).

15. Thus based on the particular facts and the circumstances of the present case and by relying on the above precedent, we are of the view that the prosecution has failed to prove the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy, and confidence-inspiring evidence. Therefore, we allow the instant appeal, set aside the impugned Judgment passed by the learned Additional Sessions Judge-III//MCTC-II/Special Court CNS Sukkur in special case No.152 of 2021 (Re-State v. Nadir Ali and others), whereby he has convicted the appellant for the offense under section 9 (c) CNS, Act 1997 and acquit the appellant Nadir Ali from the charge by extending him the benefit of the doubt. He shall be released forthwith if not required in another custody case. JK/N-15/Sindh Appeal allowed.