2016 PLP 291 (MLD)

AMER RAZA NAQVI, J.

The appellant was tried by Special Judge for C.N.S Larkana in Special Case No.107 of 2009 for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 arising out of Crime No.128 of 2009 of P.S. Hyderi and he was convicted under section 9(b) for the charge framed on 25.05.2010 against him and was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.25000/=, in default of payment of fine he was to further undergo S.I. for three months more. Appellant was also granted benefit of section 382(b), Cr.P.C. Such conviction was awarded by the trial Court through judgment passed in the above matter on 14.09.2011. Such judgment was impugned in this appeal, which was allowed on 18.02.2015 and appellant was acquitted for the charge framed against him by the trial Court through short order, following are the reasons for such short order:-- The allegation against the appellant contained in the charge was that on 15.09.2010 at about 1400 hours on road leading towards Akil near Jamali Curve Beat No.4, Channa Village, Larkana, he on seeing police party fled towards northern side and police party found one sack containing five pink colour Whiskas written shoppers of charas weighing 5 k.g. Charge was framed under section 9(c) Control of Narcotic Substances Act, 1997. Prosecution in support of their case examined three witnesses two being witnesses of recovery namely P.W Mushtaq Ahmed and P.W Abdul Hayee whereas P.W Sajjad Hussain was Investigation Officer of the case. Both the witnesses of recovery supported the case of prosecution and claimed that above mentioned contraband item was recovered from the accused at the time and place mentioned in the charge. The charas so recovered was sent to the Chemical Examiners at Rohri and Karachi and the reports were positive. Appellant challenged the impugned judgment through present appeal. In support of his appeal learned counsel for the appellant submitted that the recovery was not made from the accused and even in the charge and FIR it is not claimed that the recovery was from the person of the accused or accused was arrested in possession of charas. He submitted that name of the accused has been mentioned in the FIR on account of some enmity. He further submitted that there are material contradictions with regard to the recovery of charas therefore, the impugned judgment can not sustain in the law and appellant is entitled to be acquitted of the charge framed against him. On the other hand, D.P.G appearing on behalf of the State submitted that both the witnesses have supported the case of the prosecution and case has been investigated by another officer therefore, no mala fide is involved in this case. He submitted that the conviction and sentence awarded to the appellant is strictly in accordance with the law and is based on evidence. We have heard learned counsel appearing in the matter and have perused the record with their assistance. In this case according to allegations accused had fled away by dropping the charas in the garden and also dropping his bicycle in which charas was lying. In such situation, it can not be said that the recovery was made from the exclusive possession of the appellant. Strangely enough the charge on the contrary states that accused was in possession of the charas in contravention of provisions of section 6 of Control of Narcotic Substances Act 1997. For the sake of arguments if it is believed that police has found the charas at the place mentioned in the charge there is no sufficient evidence available on the record that present appellant was the same person who left the charas at the time and place mentioned in the charge. The evidence of the prosecution is absolutely silent on this point that how the accused was identified and the case of prosecution in this respect is not free from doubt. Complainant admitted in cross that he did not know the accused, he claimed that PC Ali Gohar had pointed out that he was the same person, said PC Ali Gohar was not examined by the prosecution. Complainant Mushtaque Ahmed while deposing before the trial Court also stated that the police party separated one patti of the charas divided equally which became 500 grams each for dispatching it to the laboratory. He also stated that charas was sealed separately under memo of recovery which was prepared by PC Ali Gohar as mentioned above he was not examined by the prosecution. On the other hand, investigation Officer stated that property handed over to him comprised two parcels each containing 500 grams one to be sent to Chemical Examiner Rohri and other to the Chemical Examiner Karachi and third parcel containing 4 k.g. was the remaining recovered material. This fact is not mentioned by the complainant in his statement and in such circumstances, it was necessary for the prosecution to examine PC Ali Gohar who, according to complainant, prepared memo of recovery. The investigation Officer also stated that he had not himself inspected the place of alleged recovery. He further stated that bicycle of the accused was also secured in this case as case property. He admitted that such bicycle was not produced before the trial Court. Contrary to the stand of I.O. in the end of the statement complainant stated that I.O. of the case had visited the place of incident on his pointation. It appears that I.O. has not investigated the matter and acted like a postman, he sent the material handed over to him to Chemical Examiner and on receipt of report challaned the case which was not proper cause of action on his part. In our view these are material contradictions in the case of prosecution in respect of alleged recovery. Moreover, in our humble view even otherwise appellant has not been connected with the offence alleged through sufficient evidence produced against him before the trial Court. Witnesses relied on a person (PC-Ali Gohar) and he was not examined in Court. In the above facts and circumstances, appellant was found entitled to acquittal of the charge and therefore, through short order on 18.2.2015, this appeal was allowed. YN/B-6/Sindh Appeal allowed.