2010 PLP 2276 (YLR)

GHULAM SARWAR KORAI, J.

This appeal is directed against the judgment dated 13-10-2003 passed by the Court of learned Special Judge for C.N.S., Sukkur in which the appellant was convicted for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer R.I. for a term of 5 years and to pay fine of Rs.2,00,000 and in case of non-payment of fine to suffer further S.I. for one year. The brief facts of the case are that Sher Ali Shah, Sub-Inspector of ANF lodged report on 2-5-2000 in which he stated that he with his subordinate staff proceeded, vide Roznamcha Entry No.8 in their official vehicle to detect Narcotics Cases while they reached on the road at Blue Line Coach Stand Pir-Jo-Goth, saw two persons having white colour plastic bags in their hands. Since they were looking suspicious, both were apprehended. On enquiry, first accused disclosed his name and parentage as mentioned in the memo of the appeal and second disclosed his name and parentage Shahban son of Muhammad Malhar Mirbahar. PC Mukhtiar Ali and PC Shahzad were nominated as Mashirs and in their presence plastic bags secured from the appellants were opened and 5 packets with monogram of MANA were found in each bag. Those packets were opened and two slabs of Charas were found in each packet with a mark of

555. Each packet was weighed, which was 1 kg. therefore, the total weight of each bag came to 5 Kg. of Charas. 50 grams from each packet were separated for Chemical Examination and sealed, so also remaining property. From the personal search of appellant, 2 currency notes each of 50, one National Identity Card, one Driving Licence and one Police Card, and so also Rado Watch of second quality. 10 currency notes each of Rs.5 were also secured from the personal search of accused Shahban. At the time of arrest, the appellant and co-accused allegedly disclosed that Charas was given to them by Muhammad Ali, Bux Ali both sons of Muhammad Hashim for delivery to the customers, therefore, complainant party with the arrested accused Khuda Bux (appellant) and Shahban proceeded to arrest Muhammad Ali and Bux Ali and found them with Motorcycle but as soon they saw Police party, made their escape by leaving Motorcycle at the spot, therefore, Motorcycle was impounded. The Motorcycle, present appellant and co-accused were brought at Police Station and the F.I.R. was registered. After completing investigation, final report was filed. During proceedings, copies were supplied to the appellant and charge was framed by the trial Court on 8-9-2001, vide Exh.3, in which the appellant and the co-accused pleaded not guilty and claimed their trial. Their pleas were recorded vide Exh.4 and 5 respectively. In order to prove the case, Prosecution examined P.W.1 Sher Ali Shah at Exh.12 as complainant and Investigating Officer. He produced Mashirnama of recovery and arrest, Mashirnama of ceasing the Motorcycle, F.I.R., Chemical Examiner's Report, Roznamcha entry, vide Exh.12-A to E. P.W.2 Mukhtiar Ali was examined vide Exh.13, and thereafter, side of the Prosecution was closed by learned SPP, Ant, Sukkur, vide his statement dated 29-12-2001 at Exh.14. The statement under section 342, Cr.P.C. of the appellant was recorded vide Exh.16 in which he pleaded not guilty and claimed innocence by submitting that he has falsely been implicated by the complainant at the instance of one Altaf Hussain Shah with whom he was disputing. In support of his claim, he himself examined on oath as required under section 340 (2), Cr.P.C., vide Exh.23. D.W. Hussain Bux was examined at Exh.24, D.W. Rahmatullah was examined at Exh.25, D.W. Iqbal Ahmed at Exh.26. He placed some documents at Exh.26-A, D.W. Ghulam Muhammad was examined at Exh.28. Application dated 22-10-1998 was produced at Exh.28-A and photocopy of documents at Exh.28-B and lastly, side of the defence was closed on behalf of the appellant. After concluding the trial, learned trial Court framed following points for determination: Point No.1 Whether accused Khuda Bux and Shahban Ali were arrested on 2-5-2000 near Blue Line Coach Stand near Pir-Jo-Goth Wagon Stand and 5 Kilograms of Charas from each accused total 10 Kilograms of Charas were recovered and was supplied to them by accused Muhammad Ali and Bux Ali" Point No.2 What offence if any committed by the accused? In the findings, Point No.1 was proved and in Point No.2, the appellant was convicted and sentenced as mentioned-above. Heard Mr. Ghulam Shabir Dayo, learned counsel for appellant and Mr. Zulfiqar Ali Sangi, Special Public Prosecutor, the latter opposed the appeal and prayed to maintain the judgment of the trial Court. Mr. Ghulam Shabir Dayo, learned counsel for appellant submits that the appellant was serving in the Police Department as constable. He had a house in Katchi Abadi adjacent to the house of one Altaf Hussain Shah. Altaf Hussain Shah resides at G.T. Road and his labour used to sleep occasionally in the house of the appellant, therefore, the appellant made complaint to the Altaf Shah but he received no response from him. On the contrary, he was annoyed and harsh words were exchanged, therefore, the appellant made complaint to Hussain Bux Abro, therefore, Altaf Hussain Shah, the complainant and the Investigating Officer of this case gave threats to the appellant to vacate the house and hand over the same to his uncle, otherwise he will be implicated in false case. The appellant refused to vacate the premises and made complaint to S.P., Sukkur and his application was forwarded to Police Station Rohri on 22-10-1998. He was directed by the WHC of the Police Station that he will call other party for settlement of the dispute going on between them. Then the application was handed over to A.S.-I. Mumtaz Abro, who later on, registered the repot of non-cognizable offence on 11-10-1998. At the time of incident, he was serving at Police Station Qadirpur. On the date of incident at about 5-00 p.m. while he reached Ayoob Gate, met with one Rahmatullah. Meanwhile three constables emerged from Double Cabin Vehicle, arrested the appellant, brought at Police Station, where he was confined for 2/3 days, therefore, his brother made applications against Inspector Sher Ali Shah as the appellant was refusing to vacate the possession of his house, the house of the appellant demolished and he was implicated in the present case. From the perusal of the material available on record and the R & Ps, it appears that Sher Ali Shah, complainant of this case acted in his dual capacity as complainant and Investigating Officer while P.W. Mukhtiar Ali being one of the witnesses, is his subordinate. Though the complainant has supported his case but in the cross-examination, he deposed that "It is incorrect to say that Altaf Shah expressed to Khuda Bux to remove the construction of his house". Means, he knew Altaf Shah and also knew the dispute of the appellant with Altaf Shah. He further deposed that "It is incorrect to say that I had interfered in the dispute". Means, he also knew the dispute in between the appellant and Altaf Shah. In the evidence of witness Mukhtiar Ali admits in his cross-examination that the complainant had not approached Hotel Keeper or shop keeper to act as Mashir which means that people were available at the place of incident. The appellant and co-accused allegedly disclosed that they have been given Narcotics by two other persons namely Muhammad Ali and Bux Ali to hand over the same to their customers, if the same may be believed correct, then appellant may not be in knowledge of the Charas in the plastic shoppers. The police party tried to arrest these persons believing the alleged statement of the appellant and co-accused but Muhammad Ali and Bux Ali made their escape by leaving Motorcycle at the spot of the incident which was seized by the complainant, though that Motorcycle was not required in the present case or any other case, therefore, seizing that Motorcycle by the complainant itself was illegal. The co-accused Muhammad Ali and Bux Ali were also tried by the same Court but were acquitted in the same judgment by disbelieving evidence of the complainant and the witnesses against them and that position is still intact as no appeal against acquittal has been filed by the Department. The statement on oath of the appellant by taking his defence stated above is also to be considered. The appellant was cross-examined by the S.P.P. but no material point was collected by the Prosecution from cross-examination of the appellant. The evidence of defence witnesses also supports the version of the appellant about his false implication by the complainant at the instance of one Altaf Shah. The documents produced by the appellant in evidence also show that the appellant was falsely implicated, therefore, the appellant took efforts to establish his innocence but his defence plea was not considered by the trial Court and he was convicted. From the above discussion, we are of the considered view that the appellant was falsely implicated by the complainant at the instance of Altaf Shah with whom the appellant had a dispute. We are, therefore, of the considered opinion that the Impugned Judgment cannot be sustained. We had, therefore, after hearing the learned counsel on 10-3-2010, passed the following order in the Court:-- "Both the learned counsel have concluded their arguments. From reasons to follow, we are of the considered opinion that reasonable doubt exists as to the guilt of the appellant/accused, and therefore, the conviction meted out by the learned Sessions Judge cannot be sustained. The appeal is, therefore, allowed and the conviction is set aside." The above are the reasons of our short order. H.B.T./K-21/K Appeal allowed.