2016 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through the captioned criminal appeal preferred from Jail, appellant Abdul Rehman has impugned Judgment dated 28.09.2012, passed by learned II Additional Sessions Judge, Hyderabad, in Special Case No. 29/2011, whereby the appellant has been convicted under section 9(c), C.N.S. Act, 1997, and sentenced to suffer rigorous imprisonment for fifteen years and fine of Rs.1,00,000/-. However, benefit of section 382-B, Cr.P.C. has been extended to him.

2. Precisely, the facts leading to the prosecution case are that on 16.02.2011, at about 0845 hours, complainant ASI Manzoor Ahmed Jamali along with subordinate staff during patrolling at Wadho Wah near Zero point intercepted one white color Mehran car bearing registration No.ANL-785. During search from the dicky of car 9 Kg Charas packed in nine packets was recovered and appellant Abdul Rehman was apprehended. Complainant separated 10 grams Charas from each packet for chemical examination. Appellant was arrested under a mashirnama in presence of police mashirs, hence the instant FIR.

3. Formal charge was framed against the appellant under section 9(c), C.N.S. Act, 1997, to which he pleaded not guilty and claimed to be tried.

4. To substantiate the case against the appellant, prosecution examined Complainant ASI Manzoor Ahmed as PW-1 as Ex-5, who produced mashirnama of arrest and recovery, FIR, two Roznamcha entries as Ex-5/A to Ex-5/D, respectively, ASI Ghazanfar Hussain as PW-2 as Ex-6, who produced mashirnama of place of incident as Ex-6/A, SIP Suhail Sarwar as PW-3 as Ex-8 and ASI Altaf Hussain as PW 4 as Ex-9, who produced letter for sending sample to Chemical Examiner and chemical report as Ex-9/A and 9/B.

5. The statement of appellant under section 342, Cr.P.C. was recorded as Ex-11, wherein he denied the allegations of prosecution and claimed to be innocent. The appellant also examined himself on oath under section 340(2), Cr.P.C. and stated that he was married with Mst. Yasmin, the sister of WHC Yasin who is inimical with him and demanded to divorce his sister but the appellant refused to do so. He prayed for justice.

6. Learned counsel for the appellant contended that the impugned judgment is utter violation of principle of natural justice and equity. He further contended that samples were not taken from each slab therefore, it cannot be said that whole recovered substance was Charas. He further contended that there is delay in sending property to chemical examination for which no satisfactory explanation has been furnished by the prosecution. He further contended that the appellant was arrested from thickly populated area but no independent witness was associated to corroborate the version of the prosecution. He also contended that learned trial Court has not considered the grave contradictions and improvements made by the prosecution in their evidence and appellant was convicted only relying upon the examination in chief of the witnesses. He emphasized that WHC Yasin Mallah is inimical with the appellant as he married with his sister Mst. Yasim against his wish and compelled the appellant to divorce his wife but he refused to do so. He further contended that the car bearing No.ANL-785 was neither seized by the complainant though allegedly the narcotic substance was recovered from its dicky nor said car was produced before the trial Court during the course of trial. He further contended that allegedly 9 plastic packets containing Charas one kg each, were recovered and samples were separated from each packet, but at the time of evidence instead of 9 slabs, 31 slabs of Charas were produced before the trial Court which requires serious consideration. He further contended that complainant Manzoor Ahmed admitted in his cross-examination that samples were not taken from some slabs. He further contended that complainant has failed to mention the denomination of the currency notes in FIR and memo of recovery. He lastly contended that case of prosecution is full of doubts and appellant is entitled to be acquitted by extending such benefit. He relied on 2005 Cr.LJ 35.

7. While controverting the plea raised by the learned counsel for appellant, learned D.P.G. contended that appellant was arrested on the spot and 9 kg Charas was recovered from the dicky of his car and as per chemical examiner's report the recovered substance was Charas. He further contended that the prosecution witnesses have fully supported the prosecution case and also corroborated each other and prosecution has succeeded to establish the factum of recovery from the appellant, as such the impugned judgment is lawful and instant appeal is liable to be dismissed.

8. Perusal of the available material on record and consideration of arguments advanced by the parties emanated that there are material contradictions in prosecution story while examining the contents of FIR, mashirnama of recovery as well as Chemical Examiner's report. All PWs have deposed in contradictory manner regarding the routes of patrolling and time consumed by them, manner of stopping of appellant's car and conducting search and recovery of Chars as well as its sealing.

9. Admittedly, the appellant was apprehended on 16.2.2011, at 0945 hours, while the samples were transmitted to the Chemical Examiner on 23.2.2011 and I.O. has failed to furnish plausible explanation that during the period of 7 days the recovered samples were not kept in safe custody which has been confirmed by PW-4 Altaf Husain, who has deposed that he received sealed packet of sample and kept the same in Malkhana of P.S for seven days but did not maintain any entry in respect of keeping the property in Malkhana. Therefore, the factum of said unexplained 7 days delay and non-maintaining of such entry has made the case of prosecution highly doubtful. In case of Qayum v. The State, 2005 PCr.LJ 2034, it was observed that there was six days delay in sending the samples and 15 days consumed in receiving back the said samples and such delay was unexplained, hence accused was acquitted. In the case in hand, the samples were sent after a week and report received 8 days back and no satisfactory explanation has been furnished by the prosecution witnesses for such delay which has created serious doubt.

10. It is significant to mention that as per Chemical Examiner's report, 9 pieces were sealed in one cloth parcel instead of sealing them separately by marking respective serial numbers. It is an astonishing fact that during the course of trial, instead of 9 slabs, 31 slabs of Charas except the samples were produced before the Court. During the course of arguments, the learned DPG admitted this aspect and could not furnish any satisfactory explanation for producing of 31 slabs before the trial Court.

11. At this juncture, we would like to discuss the evidence of prosecution witnesses. As per FIR and mashirnama of arrest police left for patrolling in police mobile No.SP-6943, but complainant admitted that as per roznamacha entry police mobile No.SP-7943 was in their use. PWs admitted in cross-examination that the place of incident is thickly populated area but the complainant neither associated any public person to act as mashir of recovery in order to maintain transparency of alleged recovery nor any such effort was made by the complainant.

12. I would like to reproduce a significant letter issued by the Registrar, Hon'ble Supreme Court of Pakistan, Rawalpindi, addressed to all the Inspectors General of Police of Provinces with directions to associate witnesses of recovery from the public and simultaneously also directed the Courts to examine the explanation for non-association of witnesses from the public, as follows:- "J. P. 32 -R(S)/ 88-SCJ SUPREME COURT OF PAKISTAN RAWALPINDI, AUGUST 20, 1990. From The Registrar, Supreme Court of Pakistan, Rawalpindi. To, (1) The Inspector General of Police, Punjab, Lahore. (2) The Inspector General of Police, Sindh, Karachi. (3) The Inspector General of Police, N.W.F.-P, Peshawar. (4) The Inspector General of Police, Balochistan, Quetta. Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Dear Sir, It has come to the notice of this Court that in a larger number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/ recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned.

2. The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to the ocular account given by the Police Officials support the prosecution version when denied by the defence?

3. It is suggested that the above orders of this Court should be brought to all concerned for strict compliance. Sd/- (M.A. Latif)."

13. In the case of State v. Bashir and others PLD 1997 SC 408, the Hon'ble Supreme Court while dealing with the provisions of section 103, Cr.P.C. has observed as under:- "As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C. namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent Judgment of this Court in the case of Mushtaq Ahmed v. The State, PLD 1997 SC

574. In the case in hand SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public."

14. It is well settled that provisions of the section 103, Cr.P.C. are mandatory in nature and cannot be ignored without any proper justification. The prime object of the said section is to ensure the transparency and fairness on the part of police during the course of recovery, and to curb the false implication and minimize the scope of foisting of fake recovery upon the accused.

15. Adverting to the merits of the case, complainant also admitted that samples were not separated from some of the slabs which were produced at the trial and shown to him. Complainant also admitted that model, number of recovered mobile phone and denomination of currency notes were not mentioned in FIR and memo of recovery. Complainant also admitted that recovered currency notes, mobile phone and duplicate CNIC of the appellant were not sealed at the spot. Complainant also admitted that roznamcha entries produced by him did not mention that investigation kit was with him. Complainant also deposed that the colour of Charas separated for chemical examination was dark brown, while as per Chemical Examiner's report the sample containing 9 pieces were of greenish brown semi soft. Complainant also admitted that the rozmancha entry did not mention that the sample of Charas was sealed on the spot. Complainant was unaware how many signatures of mashirs were obtained at the place of incident. Complainant also admitted that slabs present in trial Court were not of one kg each. PWs have deposed that Charas was lying in black bag, while in cross-examination they admitted that the bag present in trial Court was of dark blue colour. PWs also admitted that 31 slabs of Charas were produced as case property in trial Court.

16. We have examined the statements of prosecution witnesses, Chemical Examiner's report and statements of accused along with relevant documents meticulously which reflect that sample was delivered to PW Altaf Hussain but he did not maintain any entry in Malkhana Register, and this admission is sufficient to conclude that during the intervening period of 7 days, the samples were not kept in safe custody. Moreover, appellant's car bearing No.ANL-785, was neither seized by the complainant on the spot nor it was produced during the trial and even during the course of the arguments, learned DPG could furnish any satisfactory explanation in this regard. On the other hand, the appellant in his statement under section 342, Cr.P.C. and statement on oath had denied the alleged offence and claimed to be implicated falsely at the instance of WHC Yasin Malah who had animosity over the marriage of his sister with the appellant. We have found glaring contradictions and material discrepancies in statements of PWs which are fatal to the case of prosecution.

17. Consequently, we are of the considered view that prosecution case, in the circumstances, suffered from reasonable doubts, and it is well settled that every coin of doubt shall be deposited in the account of accused. Resultantly, the instant criminal appeal stands allowed and impugned judgment dated 28.09.2012, passed by learned II-Additional Sessions Judge, Hyderabad, is set aside and appellant is acquitted from the charge. The appellant be set at liberty at once if he is not required in any other case. YN/A-31/Sindh Appeal allowed.