2009 PLP 2435 (YLR)

KHALID ALI Z. QAZI, J.

Through this appeal the appellant Abdul Sattar has impugned judgment, dated 29-9-2005 whereby he has been convicted and sentenced for life imprisonment with One Million fine and in default to suffer two years more imprisonment, by the Court of Sessions Judge and Special Court for C.N.S. Jacobabad. Earlier, case was tried by the 1st Additional Sessions Judge, Jacobabad who convicted accused vide judgment dated 31-10-2000 against which Criminal Jail Appeal No.D-3/2000 was preferred and as such, the case was remanded by the Honourable High Court. Subsequently, this case was retried by the then learned 1st Additional Sessions Judge, Jacobabad (Mr. Sikander Ali Bhutto). The accused was again convicted for the offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life and to pay fine of Rs.One Million and in default to suffer S.-I. for two years more. The benefit of Section 382(b), Cr.P.C. was again extended to the accused, by judgment dated 31-5-2003. The accused again preferred Crl. J.A. No.D-75 of 200 in the Honourable High Court of Sindh, Circuit, Larkana. This Jail Appeal was also heard by my lords Honourable Mr. Justice Mushir Alam and Honourable Mr. Justice Gulzar Ahmed. By an order, dated 30-9-2004, set aside the impugned judgment and transferred the case to this Court in terms of Notification issued by the Federal Government dated 20-8-1997. As such the fresh trial commenced against the above named accused before this Court. The appellant was however extended benefit of section 382-B, Cr.P.C. for the period for which he had remained as under trial prisoner. Being aggrieved and dis-satisfied by the afore-said judgment dated 29-9-2005 of conviction and sentence passed against the appellant by learned Sessions Judge and Special Judge for C.N.S. Jacobabad, the appellant preferred this Jail Appeal before this Honourable Court with the prayer to set aside the judgment dated 29-9-2005 passed by the learned Sessions Judge and Special Judge for C.N.S. in C.N.S. Case No.3 of 1999(sic) v. Abdul Sattar and acquit him in the above case. Briefly the facts of the case are that the complainant S.H.O. Maqsood Ahmed Afghani of Police Station Sadar Jacobabad on 10-12-1999 at 17-45 hours, got spy information that a truck bearing No.Q-4031 would pass from Jacobabad loaded with narcotics. On receiving such information, the complainant constituted a police party and left Police Station vide entry No.10 at 2-30 p.m. and then proceeded towards Check Post at Jacobabad, Shikarpur Road, where A.S.-I. Muhammad Iqbal, PC Liaquat Ali and Jamal Khan were deployed. The complainant S.H.O. Sadar made Nakabandi at about 4-30 p.m. when he saw truck No.Q-44031 coming from Jacobabad, he signalled to stop the same and enquired the name of Truck driver, who disclosed his name as Abdul Sattar s/o Fateh Muhammad Brohi r/o Suhrab Road Quetta. The complainant took search of the truck and found three bags on the carrier roof of cabin built over the seat of driver. On opening these bags, police party recovered 40 k.g. Charas ad 14-650 k.g. Opium. A.S.-I. Muhammad Iqbal and PC Liaquat Ali acted as mashirs, the complainant took personal search of accused and secured one driving licence, N.I.C. in his name and two notes each of Rs.100 denomination. The complainant prepared such mashirnama of arrest and recovery and then took accused and property to Police Station Saddar, Jacobabad where complainant lodged F.I.R. On completion of investigation the case was challened and after conclusion of the trial, learned trial Judge for C.N.S. Jacobabad convicted the appellant for life time R.I. and fine of Rs. One Million and in default of payment of fine, he shall further suffer two years' S.I, giving rise to the present appeal. To the Charge (Exh.2) framed against the accused, he pleaded not guilty and claimed to be tried. The plea of accused has been recorded at Exh.3. Subsequently, the prosecution in support of its case recorded evidence of complainant 8.H.O./S.I.P. Maqsood Ahmed Afghani Exh.6. He produced the copy of entry of roznamcha Exh.7, mashirnama of arrest of accused and recovery Exh.8, F.I.R. Exh.9, and the positive report of Chemical Examiner Exh.10, Mashir A.S.-I. Muhammad Iqbal Exh.11. The learned District Attorney has closed the side of prosecution vide his statement at Exh.11. In his statement Exh.12 accused had denied the prosecution allegations. Accused has not examined himself on oath in disproof of prosecution allegation and has not examined any witness in his defence. In his statement, the accused has further stated that he is not owner of the alleged truck nor he was driving the same and he had no knowledge about any narcotic substances. He stated that he has been involved in the present false case by complainant at the instance of one Ahmed Ali Brohi who is his enemy as he was working with him as driver and the family dispute arose between them due to that he with collusion of complainant got him involved in the present case. According to his knowledge the said truck was driven by one driver by caste Marri who had carried 116 bags of Dail Mung who was let off and he has been involved in this case. In support of his plea, he has produced photo stat copy of billity at Exh.14. Learned trial Court on the basis of evidence brought on record following formulated points for determination and decided this case resulting in conviction of accused:- (1) Whether on 10-12-1999 at 4-30 p.m. accused was found in possession/transporting 40 kilograms of Charas and 14.650 Kilograms of Opium in truck bearing Registration No.QAD-4031 driven by accused? (2) What offence, if any, committed by the accused? We have heard learned Advocate for the appellant at great length so also State counsel. We have also gone through the case papers including the evidence led before the trial Court. It is contended by the learned counsel for the appellant that the impugned judgment is illegal, against facts and law and is liable to be set aside; as the trial Court did not fully consider the evidence produced on record. That the evidence of the P.Ws is based on material contradictions unbelievable and reliable and the prosecution utterly failed to establish its case beyond any reasonable doubt; the recovery of alleged Charas and opium as per mashirnama before the registration of the case is not permitted by the law. Learned counsel further contended that main documents of the case are mashirnama of arrest and recovery and F.I.R. are not provided according to law, therefore, no reliance could be placed on such document; when the documents and conviction of the appellant is not sustainable under the law. Besides, he has also contended that P.Ws and Mashirs are police officials and no independent mashir was made and as such there is violation of mandatory provision of section 103, Cr.P.C. It is further contended by the learned counsel that the trial Court had failed to appreciate that why there was delay of three days in sending the sample of alleged Charas and Opium to the chemical examiner. The appellant/accused was involved in the said case due to enmity with his relative namely Ahmed Ali Brohi. It is further contended that the trial of the case has not proceeded in accordance with procedure and the trial Court did not rely on the prosecution evidence to the extent of Muhammad Ayub and Abdul Ghani accused who were acquitted. On all these scores, learned counsel for the appellant has prayed that the impugned judgment may be set aside and prayed for acquittal of the appellant in this case. There is evidence of complainant Maqsood Ahmed and he has stated that on 10-12-1999 he was S.H.O. Police Station Saddar Jacobabad when he received spy information that one truck bearing registration No.QAD-4031 loaded with narcotics was coming from Balochistan side. He therefore, constituted a policy part consisting of himself, PC Ali Nawaz, PC Imam Bux, PC-Abdul Karim, and left P.0 along with driver PC Muhammad Ramzan vide entry No.10 at 2-30 p.m. and proceeded towards Shikarpur. It is stated that they started Nakabandi at Coban Police Check Post at about 4-30 p.m. and during Nakabandi they noticed that truck bearing Registration No.QAD-4031 which came from Jacobabad side moving towards Shikarpur side. The police party stopped the truck on the road side from which driver alighted. Maqsood Ahmed complainant has stated that he took search of the truck and found three plastic bags lying on the top of roof of the Cabin of the truck and bags of mash daal were loaded in the rest part of the truck. Complainant with the assistance of his staff unloaded three bags of plastic lying on the roof of the cabin and found that it contained Charas and liquid opium. It has been deposed that two bags each contained 10 slabs of Charas which were wrapped together and in other bag liquid opium was found. On inquiry the driver disclosed his name as Abdul Sattar s/o Fateh Muhammad Shahwani r/o Saryab Road Quetta. The complainant then deputed A.S.-I. Muhammad Iqbal who brought the weighing scale at the check post and the recovered Charas was weighed which became 40 k.g and liquid Opium was 650 grams. From the personal search of accused, his driving licence, NIC Card and two currency notes of Rs.100 denomination were recovered. He secured above said articles under Mashirnama and brought the same at Police Station Saddar Jacobabad where he registered the case on behalf of the State. Thereafter he referred all the recovered Charas to the Chemical Examiner Rohri for his expert opinion. In cross-examination complainant deposed that he does not know whether he received spy information on telephone from Jacobabad or from some other place. According to him the roznamcha is not maintained on the Koban of Police Check Post of Police Station Saddar Jacobabad. In further corss-examination he has admitted that there is Petrol Pump known as Raja Petrol Pump which is at the distance of 10/15 paces and hotel and there is a cabin on the other side of the road in front of Raja Petrol Pump. He has also admitted that railway crossing is at the distance of 200/250 paces from the Koban of Police Check Post and the gateman remains pre-sent over railway crossing round the clock. He has also admitted the suggestion that the People remain present at Petrol Pump and Hotel during day time but he has not tried to associate any private person either from Pump or Hotel. He admitted that truck bilty Was not secured from the truck driver. He has denied the suggestion that truck was loaded with 116 bags of mash daal. He does not know as to who was the owner of daal mash or to whom the same was being sent. He has denied that said truck was being driven by one Marri driver and not by the present accused. He has further denied the suggestion that real culprits along with three ladies boarded in the said truck were let off by him after taking Rs.200,000 illegal gratification. He has also denied that he took present accused from Ahmed Ali Muhammad Ali Goods Transport Company for taking the truck to Police Station Saddar and has falsely shown them accused arrested in this case. The complainant does not know as to from where Muhammad Iqbal A.S.-I. brought weighing scale. According to him there were 12 different weights along with weighing scale. The owner of weighing scale was not examined by him. Complainant also do not remember name of police constable through whom he dispatched the case property i.e. recovered Charas and Opium to the Chemical Examiner. He has denied the suggestion. that three years from day of his statement in Court, he had apprehended one Sadaqat Ali who was maltreated by him which resulted into his death. But it has been admitted by him that Direct Complaint of murder of said Sadaqat Ali is pending in the Court of 2nd Additional Sessions Judge, Jacobabad. He has further denied the suggestion that during his posting as S.H.O. Police Station Dokri, one Master Bisharat Masan was maltreated by him and as such, he had died at Police Station. He has however, admitted the suggestion that F.I.R. was registered against him regarding death of Master Bisharat Hussain. In further cross-examination he has stated that he does not know whether the material loaded in the truck belonged to one Wahid Daal Mill Hyderabad Sindh. It is also admitted by him that Rs.200 are not sufficient for truck driver while his destination to Hyderabad. He has denied that he has misappropriated the remaining bags of daal mash while showing 20 bags instead of 116 bags of daal mash loaded in the truck. P.W.2 A.S.-I. Muhammad Iqbal has deposed in cross-examination that he does not know name of the shop keeper from whom he obtained the weight and weighing scale. According to him the weights were of different measures viz. 2 weights of 5 k.g. 4 weights of 1 k.g. each and one weight of 500 grms, 1 weight of 100 grms and one weight of 50 grams as such there were 7 weights of different weight. His statement is also to the effect that they did not attempt to associate private person either from Petrol Pump or from nearby Hotel. He does not know as to who was author of the F.I.R. According to him mash daal bags loaded in the truck were not counted by him. It has been admitted by him that number of bags of daal mash loaded in the truck have not been mentioned in the mashirnama of recovery and arrest. In his statement appellant/accused Abdul Sattar had stated that he is innocent and have been falsely involved in this case by S.H.O. Maqsood Ahmed who had let off actual culprits accompanied by three ladies after taking bribe from them. His contention is that on that day he was present at Ahmed Ali Goods Transport Company when Police requested for a driver and Munshi Punhal of Ahmed Ali Goods Transport Company deputed him to go along with the S.H.O. He examined witness Punhwal so also Ghulam Rasool owner of the Goods Transport Company in his defence. D.W. Punhal has fully supported the statement given by the appellant. The Chemical Examiner's report annexure 9-C at pages Nos.179 and 180 of the Paper Book is as under: "Parcel Nos.1 and 2. (1) Physical Exam.

Smell, like that of Charas. (2) Resine test:

Positive. (3) Mircro Scopic Exam.

Horn type spines visible. Parcel No.3. (1) Physical Exam.

Smell, like that of Opium. (2) Meconic acid test:

Positive. (3) Alkaloid test:

Positive. (4) Perphyroxine test:

Positive. Obviously, chemical report is in respect of three parcels which were sent with delay of three days. In his report Chemical Examiner has not firmly stated that the recovered property was opium and Charas. He has stated that samples of recovered Charas and Opium examined by him were like Opium and Charas. Being an expert in his field he should have given a definite opinion regarding alleged recovered Charas and Opium. He was not examined by the prosecution in support of its case. In view of admissions made by the prosecution witnesses who are police officials on the factum of receipt of spy information, availability of private persons and for the purpose of different six weights measures, non-recovery of truck bilty not knowing the ownership of the alleged truck and material contradictions between both these official Excise Police Personnels as to from where weighing scale was brought. There are material contradictions in respect of weighing measures and its description. Always Investigation Kit/box is available with the police party including necessary stationery and weighing scale etc. In the peculiar circumstances of the case, case of the perosecution seems to be doubtful on above material points. In rebuttal accused has put forth his defence which has been supported by the defence witnesses examined in the case. Evidently, there is misreading and misapplication of evidence on the part of the trial Judge. As such, the trial Court failed to take all these legal and material facts into consideration. All the same, the prosecution case is not free from the benefit of doubt and as such conviction and sentence passed by the trial Court cannot be sustained. After deep reappraisal of evidence we are convinced that it is a clear case in which prosecution has miserably failed to bring home the guilt of the accused beyond any shadow of doubt. Resultantly, impugned judgment, dated 29-9-2005 of conviction and sentence requires interference of this Court and as such, this appeal is allowed on merits. The appellant/accused is acquitted from the afore-said charge framed by the trial Court in this matter. He is acquitted. He shall be released forthwith, if not required in any other case. H.B.T./A-122/K Appeal allowed.