2016 P Cr (PLP)

GHULAM QADIR LAGHARI, J.

Through instant Appeal, the appellant/State has assailed the judgment dated 19.03.2013 passed by the learned Sessions Judge/Special Judge(CNS) Sukkur in Special Case No.24/2012 emanating from FIR No.79//2012 registered at P.S "A" Section Sukkur, for offence under section 9(c) of C.N.S. Act, 1997, whereby respondent/accused has been acquitted while extending the benefit of doubt under section 245(1), Cr.P.C.

2. Succinctly the facts of the prosecution case as spelt out in the FIR are that on 30.04.2012, complainant SIP Abdul Razzaq Awan of P.S A-Section Sukkur, along with P.C. Najmuddin, PC Abdul Ghafoor and PC Khalid Iqbal left police station in official vehicle driven by driver/PC Abdul Majeed, for patrolling at about 1500 hours under entry No.20. After patrolling different places, when at about 1600 hours they reached near Garam Godi curve they saw a person having a black coloured plastic bag in his hand, coming from the side of Shah colony who seeing the police party took U-turn and started running. The police party apprehended him after chasing 15/20 paces. Due to non-availability of private mashirs, P.C. Najmuddin and PC Khalid Iqbal were nominated as mashirs and enquired from the accused about his name and address to which he disclosed his name as Muhammad Sabir alias Sabir son of Mushtaque by caste Kamboh resident of Nusrat Colony No.3 Miani Road Sukkur. The plastic bag was taken from his hand which was found containing six patties of charas. On his bodily search a cash of Rs.20/- was recovered from front pocket of his shirt. The charas was weighed and each patti was found to be of 500 grams making total of weight of 3000 grams. A piece from each patti, total 750 was segregated and sealed as sample while remaining 2250 grams was sealed as the case property. Such mashirnama of arrest and recovery was prepared which was attested by the above named mashirs. Thereafter the accused and the property were brought at P.S "A" Section Sukkur where aforesaid FIR under section 9(c) of C.N.S., Act was registered against the accused.

3. After investigation the case was challaned before the learned trial Court, who framed charge against the accused to which he pleaded not guilty and claimed trial. The prosecution in order to prove it's case, led the evidence of complainant/SIP Abdul Razzak Awan PW-2 mashir PC Najmuddin. Thereafter the side of the prosecution was closed and the learned trial Court recorded the statement of accused under section 342, Cr.P.C. wherein the accused denied the allegation of prosecution and pleaded innocence. The learned trial court, after hearing the arguments of learned SSP and defence counsel acquitted the respondent/accused vide judgment mentioned above which has been impugned in the instant appeal.

4. Learned D.P.G has contended that the witnesses examined during the trial have fully supported the case of prosecution who have corroborated the version of each other on all the material aspects of the case and their evidence is consistent, uniform and confidence inspiring. He has pointed out that the contraband charas secured from the accused was sealed at the spot and the sample drawn from it was sent for chemical analysis which has been certified by the Chemical Examiner to be the charas. He contended that there is no material contradiction, infirmity and discrepancy in the prosecution evidence available on record, and in spite of such facts, the accused has been acquitted by the learned trial Court. Per learned DPG, though the accused got himself examined on oath, but he did not produce any defence witness in his defence. It has been contended that the prosecution has succeeded in proving the charge against the accused beyond any doubt therefore, accused is liable to be convicted and sentenced accordingly.

5. We have heard the learned D.P.G. for the State, perused the judgment passed by the learned Special Judge (CNS) Sukkur, and examined evidence available on record, which shows that during cross-examination, both P.Ws i.e. complainant SIP Abdul Razzak Awan and mashir P.C. Najmuddin have given contradictory version of the alleged incidence, whereas, their testimony differ from each other on the material points i.e. complainant SIP Abdul Razzak Awan has stated in his cross-examination that they stayed at the police head quarters, Railway ground and thereafter the place of incident and then they went to the place of incident through Shikarpur road. While mashir P.C. Najmuddin has given different places from where they had gone to the place of incident. Mashir P.C. Najmuddin has stated in his cross-examination that they first went to Barrage Road, then to Hira Hospital, then Lab-e-Mehran, railway ground curve, Anwar Madrasa and thereafter Garam Godi curve, and then they went to place of incident through Barrage Road, Sukkur. The complainant SIP Abdul Razzak Awan in his cross-examination has stated that accused was tied with piece of cloth. While mashir P.C. Najmuddin in his cross-examination has given quite different version while stating that the accused was tied with handkerchief. Complainant SIP Abdul Razzak Awan in his cross-examination has stated that some of the weights were of iron and some of Brass. While mashir P.C. Najmuddin has stated that the weights were of black colour meaning thereby that weights were of iron made. Complainant has stated that they saw the accused at the distance of 10/15 paces while mashir deposed that they saw the accused at the instance of five paces. Complainant has stated that they remained at the place of incident for about 15 minutes, while mashir P.C. Najmuddin has stated that they stay about 45 minutes at the place of vardat. Complainant has stated in his cross-examination that it is correct that Wapda Hospital is at some distance and, it is admitted fact that the accused was arrested at about 4.00 p.m. in broad day light near Wapda hospital but complainant did not arrange/call private person from Wapda hospital to cite them as witnesses of arrest of accused and recovery of charas from his possession. Section 25 Control of Narcotic Substances Act, 1997 does not authorize the complainant/police officer to exclude independent witness nor it over rides the principle of producing of best available evidence. In the instant case, complainant himself conducted the investigation of this case, and no where mentioned the reasons for not associating the private independent witnesses, nor any effort appears to have been made, there a reasonable doubt is created and it cannot be ruled out that he had not conducted fair and independent enquiry into the matter. In this regard reliance can be placed in the case of Nazeer Ahmed v. The State (PLD 2009 Karachi 191).

6. The above contradictions in the testimony of both witnesses on material points discussed above, create reasonable doubts on the prosecution version, and it appears that either complainant or mashir was not along with the patrolling party and had not witnessed the arrest and recovery of charas from the possession of accused/respondent, and had deposed falsely. The occurrence of alleged incident has also become doubtful, which certainly weakens the case of prosecution. The false implication of the accused cannot be ruled out under the facts and circumstances of instant case, particularly, complainant himself registered the complaint and investigated the case, whereas both P.Ws. are police officials. It is established law that the rule with regard to corroboration of evidence of an interested witness is although a rule of caution, yet virtually it is ripened into rule of law. For the purpose of benefit of doubt to an accused more than one infirmity is not required. A single infirmity creating reasonable doubt in the mind of a prudent mind regarding truth of the charge is sufficient to give the benefit of doubt to the accused.

7. The reliance in this regard can be placed in the case of Jalaluddin v. The State (2015 PCr.LJ Sindh 1402) B., wherein, it is held that "While extending benefit of doubt to an accused, it was not necessary that there should be many circumstances which would create doubts--If a single circumstance would create reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to award such benefit, not as a matter of grace and concession, but as a matter of right." Since, in the instant case, the prosecution had failed to produce any material evidence against the accused/respondent beyond any shadow of doubt, therefore, the learned trial court has rightly acquitted him, as the accused has proved himself to be innocent. It is in view of above, it would be considered carefully that involvement of the present accused in this case is not free from doubt. It is settled law that proposition for appeal against conviction or appeal against acquittal are altogether different. Accused in an appeal against acquittal earned double presumption of innocence (one before trial and the other after acquittal). It is settled principle of law that for reversal of acquittal of accused, appellant had to bring on record that the evidence which had been brought on record had not been properly considered, and the order of the Trial Court was fanciful perverse and not in accordance with the law. Reliance can be placed on a cases reported as Muhammad Aijaz Ahmed v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) and Muhammad Haneef v. Mst. Reshman and 3 others (1998 PCr.LJ (FSC) 1576). As already mentioned above, in the instant case, the prosecution has miserably failed to point out any legal defect or factual discrepancy in the impugned judgment therefore, we are not inclined to interfere with the impugned judgment of acquittal, particularly when respondent/ accused has already earned presumption of double innocence in the instant case.

8. The learned State counsel while controverted with above legal and factual aspect of the case could not satisfactorily point out any lacuna, infirmity, or material irregularly in the impugned judgment passed by the learned trial Judge. Accordingly, instant appeal filed against the acquittal of accused/respondent was dismissed in limine by short order dated 9.11.2015 and these are the reasons for the same. SL/S-12/Sindh Appeal dismissed.