2017 P Cr (PLP)

RASHEED AHMED SOOMRO, J.

This criminal appeal has been directed against the judgment dated 30.11.2011, passed by learned Special Judge (CNS) Kashmore @ Kandhkot, whereby the appellant was convicted for offence punishable under section 9(c), of the Control of Narcotic Substances Act, 1997, and sentenced to suffer R.I for four years, six months and fine, of Rs.20,000/-; in case of default in payment of fine, appellant was ordered to suffer S.I for five months more. However, he was extended benefit of Section 382-B, Cr.P.C.

2. The facts necessary for the disposal of the case are that on 18.7.2011 a Police Party headed by ASI Muhammad Ayoub Tunio during patrolling noticed a person at about 1430 hours near Saw-Machine on Grid station road, who was holding one plastic shopper in his hand and on seeing police party he tried to slip away. He was apprehended along with shopper and on inquiry, disclosed his name as Hussain Bux alias Kabacho; the shopper was containing charas The same was weighed and found to be 1050 grams and the entire charas was sealed as sample. The accused was arrested under mashirnama attested by H.C Muhammad Ibrahim and PC Shah Nawaz and was taken to police station, where case was registered against him.

3. The appellant denied the charge and claimed his trial.

4. At trial prosecution examined three witnesses, i.e. ASI Muhammad Ayoub Tunio at Ex.4, who produced memo of arrest and recovery, copy of roznamcha entry and FIR at Ex.4-A to 4-C respectively. PW-2 H.C Muhammad Ibrahim at Ex.5, who produced memo of place of vardat at Ex.5-A. P.W-3/S.I.O Ghulam Shabir Jatoi at Ex.6.

5. In statement under Section 342, Cr.P.C. the appellant denied the allegations by pleading his innocence. He, neither examined himself under Section 340(2), Cr.P.C. on oath, nor examined anybody in defence. On conclusion of trial, the appellant was convicted and sentenced, as stated above in para 1 (one) supra.

6. We have heard learned counsel for the appellant and learned D.P.G. and have gone through the entire evidence and the material available on record.

7. Learned counsel for the appellant contended that, place of incident was thickly populated area, even then nobody from the scene of incident was associated by the prosecution to attest the recovery; that there is delay of seven days for sending the alleged samples to Chemical Examiner, therefore, tampering with the same can not be ruled out; that there are contradictions in depositions of the prosecution witnesses on material points, which create doubt upon the prosecution case and the appellant has succeeded to create doubt in prosecution case, which is to be extended in his favor. In support of his contentions the learned counsel for the appellant relied upon 2005 YLR 2448 (Peshawar), 2011 SCMR 820, 2012 MLD 1763 (Sindh), 2014 YLR 2050 (Sindh) and 2014 PCr.LJ 1358.

8. On the other hand learned D.P.G. has supported the impugned judgment. While he was confronted with over-writing in the memo of recovery at weight of alleged contraband, he could not rebut the same.

9. With assistance of learned counsel for the parties we have gone through the evidence adduced by the prosecution at trial. Admittedly, both the witnesses are police officials, however it has come on record through evidence of both the witnesses that the place of vandal is busy road and "Mistri" and laborers were working at saw-machine (near place of vardat) and in his cross-examination complainant ASI Muhammad Ayoub has admitted that he had not asked any worker, who were working at saw-machine to act as mashir. Though, the evidence of police officials is as good as others but in a case, where public persons were available at site, and prosecution failed to join them as witnesses, in such circumstances evidence of police officials loses its sanctity and evidentiary value.

10. Record further reveals that alleged recovery was effected on 18.7.2011; it was sent to Laboratory through P.C Fida Hussain, which was received by the Chemical Laboratory on 25.7.2011 with delay of about seven days and such delay has not been explained. It has also not been brought on record that it was in safe custody of the Investigating Officer of the case and there was no chance of tampering and the prosecution has also failed to examine P.C Fida Hussain, who had taken the sample to the Chemical Examiner, so that he could have been cross-examined on the point as to in whose custody the sealed parcel of sample of charas was lying during the intervening period of eight days. As per Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, this exercise was required to be completed within seventy-two hours of the recovery, and for this purpose, even there is no plausible explanation brought on record by the prosecution as to why such inordinate delay was caused in the completion of this exercise by the investigating officer. This is also fatal to the prosecution. In this regard, reference can be made to the case of Muhammad Aslam v. The State reported in 2011 SCMR 820 (Supreme Court of Pakistan).

11. Moreover, there are material contradictions in statements of both the witnesses. In his cross-examination complainant ASI Muhammad Ayoub Tunio has deposed that "we firstly patrolled main bazaar of Kandhkot city, Nanik Wara Muhalla, Ghouspur Octroi Post, where we stayed for checking purpose and checked for about half an hour, then Rasaldar road, Mirzapur Muhalla, Vegetable market then proceeded through Grid station road. Whereas PW H.C Muhammad Ibrahim in his cross-examination has deposed that "we patrolled Shurah Chowk, Octroi Post Ghouspur, grain market, clock tower, vegetable market then Kashmore grid station road." According to contents of the FIR and the Mashirnama of recovery, the complainant has stated that they got the charas weighed, however FIR is silent about the fact that from where and from whom they got the charas weighed, but both the witnesses in their evidence have improved their version by saying that AS1 Muhammad Ayoub Tunio weighed the charas. Furthermore, the mashirnama of the arrest and recovery bears over-writing in respect of weight of the recovered charas, which too creates doubt regarding authenticity of mashirnama. Moreover, as per evidence of both the witnesses, the recovered charas was in shape of one piece only; however, in his cross-examination complainant ASI Muhammad Ayoub Tunio has deposed that "it is correct to suggest that remaining case property is consisting upon two pieces"

12. Perusal of above referred evidence shows that both the witnesses are not on same or one line with each other on material points, which also creates doubt regarding authenticity of the prosecution evidence.

13. It is not out of, context to mention here that for extending benefit of doubt, it is not necessary that there should be many circumstances creating doubt and if there is single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then he will be entitled to the benefit, not as a matter of grace and concession but as a matter of right. Reference is made to the case of Tariq Pervez v. The State (1995 SCMR 1345).

14. For the foregoing reasons, the conviction recorded by the learned trial Court is not sustainable. Consequently, the appeal was allowed by short Order dated 02.08.2016 and appellant was acquitted of the charge. These are the reasons for above said order. JK/H-17/Sindh Appeal allowed.