2018 PLP 50 (YLRN)

NAIMATULLAH PHULPOTO, J.

Appellant Haji Ghulam Hyder was tried by learned Sessions Judge/Special Court (Control of Narcotic Substance) Shaheed Benazirabad, in Special Case No.61 of 2008, for offence under section 9(b) Control of Narcotic Substance Act 1997 by judgment dated 15.10.2010, the appellant was convicted under section 9(b) Control of Narcotic Substance Act 1997, and sentenced to six months SI and to pay fine of Rs.1000/-. In case of default in payment of fine, he was ordered to suffer simple imprisonment for seven days more. Appellant was extended benefit of section 382-B Cr.P.C.

2. Brief facts of the prosecution case as disclosed in FIR are that on 20.3.2008 Addl. SHO Ali Akbar left police station alongwith his subordinate staff for patrolling duty in the Government vehicle vide 'roznamcha' entry No.12 at 1130 hours, while patrolling at various places police party reached at Batho minor bridge where it is stated that Addl: SHO received spy information that present appellant was selling the charas near Dargah Hamal Fakir. Police party proceeded to the pointed place and reached at Dargah Hamal Fakir, where present accused was standing, he was surrounded and caught hold by police. On enquiry, he disclosed his name Haji Ghulam Hyder son of Haji Ali Muhammad Leghari. It is alleged that private persons were not available, SHO made ASI Pathan Khan and HC Khan Muhammad as mashirs and conducted personal search of the appellant. During personal search, it is alleged that Addl: SHO secured one plastic shopper from right side fold of shalwar of the appellant, it contained as charas. The weight of charas was 500 grams. Out of it, 100 grams of charas were separated as sample for sending to the chemical examiner and remaining property was sealed separately. Mashirnama of arrest and recovery was prepared. Thereafter, accused and case property were brought to police station, where F.I.R. bearing Crime No.58 of 2008 was lodged against the accused on behalf of the State for offence under section 9(b) of CNS Act, 1997.

3. The investigation was carried out by SIP lmdad Ali. During investigation, he visited the place of vardhat and recorded 161 Cr.P.C. statements of P.Ws and dispatched 100 grams of charas as sample to the Chemical Examiner for analysis. Positive chemical report was received. On the conclusion of the investigation, final report was submitted against the accused for offence under section 9(b) Control of Narcotic Substance Act 1997.

4. Trial Court framed 'charge' against the accused under section 9(b) Control of Narcotic Substance Act 1997 at Ex.2, to which accused pleaded not guilty and claimed trial.

5. The prosecution at the trial, examined P.W.1 HC Khan Muhammad at Ex.7, he has produced mashirnama of arrest and recovery at Ex.7/A, P.W.2 SIO lmdad Ali has been examined at Ex.8, he has produced positive chemical report at Ex.81A, PW-3 Complainant Ali Akbar examined at Ex.9 and he has produced arrival and departure entries Nos.12 and

15. Thereafter, prosecution side was closed at Ex.10.

6. Statement of accused under section 342 Cr.P.C. was recorded at Ex.11 in which he has denied the prosecution allegations and stated that he has been falsely involved in this case and police officials have deposed against him at the instance of ruling party. Accused has stated that he belongs to Muslim League (Q) and he has been involved falsely for political reason. Accused has produced copy of order dated 27.6.2009 passed by learned Civil Judge and Judicial Magistrate-I, Shaheed Benazirabad in order to show that he had enmity with his opponents.

7. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence, convicted and sentenced the appellant as stated above. The appellant has preferred this appeal.

8. The facts of this case as well as evidence produced before the trial court find an elaborate mention in the Judgment passed by the trial Court dated 15.10.2010, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned counsel for the appellant has mainly contended that it was a case of spy information, but Addl: SHO failed to associate any independent person to witness the recovery proceedings. It is also contended that case property was not sealed at the spot. It is argued that according to mashirnama, only one piece of 500 grams of charas was recovered from the possession of the accused, but three pieces of charas were produced before the trial Court, it was fatal to prosecution case. It is also argued that there is over writing in the arrival and departure entries numbers. Learned counsel for the appellant has argued that charas was recovered from the possession of the accused on 20.3.2008 but the same was sent to the chemical examiner on 15.4.2008 for which no explanation has been furnished by the prosecution. Counsel for the appellant has argued that there was no evidence on record that charas was kept in safe custody for such long period. Other material contradictions in the prosecution evidence with regard to the recovery proceedings have also been pointed out. The learned counsel for appellant argued that appellant has been involved in this case due to political enmity. It is argued that cousin of appellant was also involved by the same police station in the case of similar nature. Lastly, it was argued that prosecution has not been able to establish the case against the appellant.

10. Syed Meeral Shah, learned D.P.G. appearing for the State concedes to the contentions of learned counsel for the appellant and admitted that there is over writing in the arrival and departure entries produced before the learned trial Court. He has also admitted that there was inordinate delay in sending the sample to the chemical examiner for which no explanation has been furnished by the prosecution. Learned D.P.G. did not support the impugned judgment of trial Court.

11. We have carefully heard Mr. Ghulam Asghar Mirbahar, Advocate for appellant and Syed Meeral Shah Bukhari, D.P.G. for the State and perused the record minutely.

12. From the close scrutiny of the evidence, we have come to conclusion that prosecution has failed to prove its case against the appellant beyond any doubt and for the reasons that it was a case of spy information. Addl: SHO had sufficient time to call independent mashirs from Dargah of Hamal Fakir to witness the recovery proceedings, but it was not done for the reasons best known to the police. According to the case of prosecution, a piece of charas of 500 grams was recovered from possession of accused on 20.3.2008, but it was sent to the chemical examiner for analysis on 15.4.2008. Delay in sending the charas to the chemical examiner has not been explained by the prosecution. It is a matter of record that at the time of recording of the evidence before the trial Court, three pieces of charas were produced whereas only one piece was recovered from the possession of the accused. Prosecution couldn't explain increase of three pieces of charas. None of the prosecution witnesses had utter a single word that what happened to the recovered substance and with whom the case property had been deposited for safe custody. There was serious allegation of tampering with the case property. We have also noted that there was over writing in the arrival and departure entries numbers produced in the evidence before the trial Court at Ex.9/B, it had created a serious doubt in the prosecution case. Learned Advocate for the appellant has pointed out material contradictions in the evidence of the prosecution witnesses on material particulars of the case Appellant has raised plea since beginning that he was victim of political enmity and produced copy of the order in his statement recorded under section 342, Cr.P.C. in order to satisfy the Court that he has been involved in a number of criminal cases for the political reasons. As regards to the evidence of police officials, no doubt, evidence of police officials is as good as of other private persons unless mala fide against police officials is brought on record, but in view of the defects in the prosecution case and defence plea raised by the accused, it would be unsafe to rely upon evidence of police officials without independent corroboration, which is lacking in this case. In the case of Muhammad Hashim v. State (PLD 2004 SC 856) Honourable Supreme Court has held that under the Control of Narcotic Substances Act, 1997 stringent sentences have been provided if offence under the Act is proved. Therefore, the provisions of the said Act have to be construed very strictly. There are glaring infirmities and defects in the prosecution case. Therefore, conviction cannot be based on such type of evidence. In the case of Khalil Ahmed v. The State (PLD 2008 Karachi 8), this Court has held as follows:- "

18. In the circumstances, the case of the prosecution is highly doubtful. The conviction cannot be based on such type of trials which are marred by glaring infirmities. However, the trial Court resolved all the doubts in favour of prosecution and convicted the appellant, while losing sight of well-entrenched principle of law, that the burden was always on the prosecution to prove the charge beyond all reasonable doubts. The rule adopted by the trial Court, to say the least was not conducive for the safe administration of justice.

19. So far as the order of confiscation of the vehicle is concerned, it was made without availability of any material on the record. It was mechanically passed in flagrant violation of the provisions of section 33 of the Control of Narcotic Substances Act. as such the mandate of law was flouted by the trial Court. Thus the order of confiscation is nullity, the same deserves to be struck down.

13. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right as held by Honourable Supreme Court in the case of Tariq Pervez v. The State (1995 SCMR 1345).

14. For what has been discussed above, we have come to the conclusion that prosecution case is highly doubtful and thus prosecution has failed to prove its case against the appellant beyond shadow of doubt. This appeal is, therefore, allowed. Conviction and sentence recorded by the trial Court vide judgment dated 15.10.2010 are set aside. Appellant is on bail, but he is not in attendance today, as according to the learned counsel, he could not inform him about the date of hearing, therefore, bail bond and surety is hereby discharged. JK/G-12/Sindh Appeal allowed.