2019 PLP 954 (YLR)

IRSHAD ALI SHAH, J.

The instant appeal is preferred by the appellant against judgment dated 11.09.2017 of learned Sessions Judge/ Special Judge, CNSA Ghotki, whereby the appellant was convicted and sentenced to undergo Rigorous Imprisonment for 8-1/2 years and was imposed fine of Rs.40,000/-, in case of non-payment of fine, he was ordered to undergo Simple Imprisonment for 07 months, for an offence punishable under section 9(c) of CNS Act, for being in possession of six Kilogram of Charas.

2. It is the case of prosecution that on 24.3.2017 at about 1800 hours at Mir Kosh Bus stop, on arrest, from the appellant was secured six Kilograms of charas by police party of P.S. Khambhra, which was led by SIP Mumtaz Ali, for that the appellant was booked and challaned, in the present case to face trial, in accordance with law.

3. The appellant denied the charge. At trial, prosecution examined complainant SIP Mumtaz Ali (PW.1) produced through him "roznamcha" entries relating to his departure and arrival, mashirnama of arrest recovery and FIR of the present case. Mashir H.C Ayaz Ali (PW.2), produced through him mashirnama of place of incident. SIO/ Inspector Darya Khan (PW.3), produced through him road certificate and report of chemical examiner and then closed its side.

4. The appellant during course of his examination under section 342, Cr.P.C. denied the prosecution allegation by pleading innocence, by stating that he has been involved in this case falsely by the police at the instance of his father-in-law Ghulam Rasool, with whom he is disputed over matrimonial affairs. He did not examine any one in his defence or himself on oath.

5. On conclusion of the trial, learned trial court convicted and sentenced the appellant by way of judgment, which the appellant has impugned before this court, by way of instant appeal, as is stated above.

6. It is contended by learned counsel for the appellant that the appellant being innocent was involved in this case falsely by the police by making foistation of charas upon him at the instance of his father-in-law Ghulam Rasool with whom he is disputed over matrimonial affairs, the material contradictions in between the evidence of the complainant and his witnesses were not considered by learned trial court, in its true prospective, the samples so drawn were not weighed or marked individually. By contending so, he sought for acquittal of the appellant.

7. Leaned DPG has supported the impugned judgment.

8. We have considered the above arguments and perused the record.

9. It was stated by complainant SIP Mumtaz Ali and P.W/mashir H.C Ayaz Ali, during course of their examination before learned trial court that on the date of incident when they with rest of the police personnel were conducting patrol, during course whereof they came to know through spy information, that a person is selling Charas at bus stop Mirkosh. On such information they proceeded to the place of incident. If for the sake of arguments, it is believed that; the complainant and his witness proceeded to the place of incident together with the rest of the police perosnnel, on spy information, then they were under lawful obligation to have associated with them independent person to witness the possible arrest and recovery. It was not done by them, for no obvious reason, which has rendered their proceedings to the place of incident, on information to be doubtful one. It was further stated by them that they reached at the place of incident, there they found the present appellant standing; he was apprehended, on enquiry he disclosed his name to be Mian Dad. On search from him were secured Rs.1000/- and a plastic shopper. It was found containing seven pieces of Charas, those were weighed to be six kilograms. The samples consisting to be of one kilogram Charas were drawn from each and every piece of Charas so secured from the appellant. It was sealed while remaining Charas was also sealed separately. If such exercise was actually undertaken by the complainant and his witensses at the place of incident, then the samples of the charas so drawn were ought to have been weighed, marked and sealed individually. It was not done by them, for no obvious reason, which has rendered the proceedings with regard to drawal of the samples from the charas allegedly secured from the appellant to be doubtful one. It was further stated by the complainant and his witness that a mashirnama of arrest and recovery then was prepared by them at the spot. The appellant with the recovery allegedly made from him then was taken to P.S. Khambra. There he was booked in the present case formally and further investigation was conducted by SIO/Inspector Draya Khan. During course of cross examination. It was stated by the complainant that; during patrolling he visited Khambhra, Mirkosh and Mureed Shakh and on arrest, the hands of appellant were tied with handkerchief of black and white colour. The evidence of P.W/mashir H.C Ayaz Ali is silent with regard to visit of Khambhra during patrolling, which appears to be significant. He also has belied the complainant with regard to colour of clothes with which the hands of the appellant on arrest were allegedly tied; same according to him was of white colour. In presence of above inconsistencies, the evidence of the complainant and his witness could not be said to be inspiring confidence to be relied upon to maintain conviction and sentence against the appellant.

10. Next evidence is that of SIO/ Inspector Darya Khan. It was stated by him before learned trial court during course of his examination that; on investigation he recorded 161, Cr.P.C. statements of the P.Ws, visited the place of incident, prepared such mashirnama, same according to him was prepared by H.C. Ayaz Ali at his dictation. Evidence of P.W/mashir H.C Ayaz Ali is silent with regard to preparation of mashrinama of place of incident by him at the dictation of SIO/Inspector Darya Khan. In such circumstance no much reliance could be placed upon mashirnama of place of incident. It was further stated by SIO/Inspector Darya Khan that; he then dispatched the samples of the Charas to the chemical examiner, for chemical examination through PC Muneer Ahmed and the after usual investigation submitted challan of the case. If for the sake of arguments, the omissions on the part of SIO/Inspector Darya Khan, as are pointed above, if are over looked even then his evidence is not enough to improve the case of prosecution against the appellant.

11. The perusal of the report of the chemical examiner (Ex.7-B) reveals that the samples of Charas were sent to him by the police on 27.03.2017 through P.C. Muneer Ahmed, which PC Muneer Ahmed delivered to him on 28.03.2017, with one day delay. What he did with the samples of Charas for one day? Neither explanation to such delay is offered nor PC Muneer Ahmed, the prosecution was able to examine. In that circumstances the possibility of tampering or replacing of samples of charas could not be lost sight of. By making such conclusion we are supported of the findings of Hon'able Supreme Court of Pakistan which is recorded in case of Ikramullah and others v. The State reported at 2015 SCMR 1002.

12. The samples which were sent to the chemical examiner, on de-sealing by him were found to be ten in number. Under what circumstances the ten samples were drawn from six pieces of the charas. No explanation to it is offered by the prosecution either before learned trial court or before this Court. In that situation the possibility of manipulation of samples of Charas by PC Muneer Ahmed or someone else before its delivery to Chemical Examiner could not be ruled out.

13. The discussion involved a conclusion that the prosecution was not able to prove its case against the appellant beyond shadow of doubt. The appellant as such is entitled to such benefit. It has been held by Hon'able Supreme Court of Pakistan in case of Tariq Pervaiz v. The State which is reported at 1995 SCMR 1345 that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused then he would be entitled to such benefit not as a matter of grace and concession but as a matter of right.

14. The plea of innocence, which the appellant taken at trial and during course of his examination under section 342, Cr.P.C. before learned trial court could not be lost sight of in the above said circumstances.

15. In view of findings arrived at above, the conviction and sentence, awarded to the appellant by learned trial court, by way of impugned judgment could not be sustained, it is set-aside, consequently he is acquitted of the offence, for which he was charged, tried and convicted. He shall be released forthwith in the present case.

16. The instant appeal is disposed of in above terms. HBT/M-81/Sindh Appeal allowed.