2022 PLP 46 (YLRN)

FAHIM AHMED SIDDIQUI, J.

The appellant, through the instant Criminal Appeal has assailed the conviction judgment dated 02.11.2018, passed by learned Special Judge [Narcotics], Shaheed Benazirabad in Special Narcotic Case No.173 of 2016 emanating from Crime No.17/2016 for the offence punishable under section 9(c) CNS Act, 1997, registered at Police Station Khadhar. The impugned judgment was pronounced after finding the appellant, guilty for an offence under section 9(c) CNS Act, 1997 and convicted him to undergo R.I. for a term of three years with fine of Rs. 30,000/- and in default, he will undergo simple imprisonment for three months more. The trial Court also extended the benefit of section 382-B of Cr.P.C. to the appellant.

2. The factual matrix of the case is that on 15.04.2016, the appellant was apprehended by SIP Muhammad Raheem Gopang of Police Station Khadhar and recovered 3000 grams hashish [charas] and cash amount of Rs.500/- from his possession in presence of mashers H.C. Muhammad Saleh Abbasi and P.C. Allah Bux Brohi.

3. After usual investigation, the police submitted the final report before the concerned Judicial Magistrate, who took cognizance of the offence. The learned trial Court framed the charge against the accused, who pleaded not guilty and claimed trial.

4. In order to establish their case, the prosecution examined PW-1 complainant SIP Muhammad Raheem Gopang [Exhibit-03], who produced mashirnama of arrest, search and recovery, FIR, attested copies of roznamcha entries, mashirnama of visit wardat, photo copy of R.C. and chemical report [Exhibits-03/A to 03/G respectively], PW-2 H.C. Muhammad Saleh Abbasi [Exhibit-04]. After closure of the side of the prosecution under the statement of D.D.P.P. (Exhibit-05), the statement of the accused was recorded under section 342, Cr.P.C. (Exhibit-06). In his statement, the accused denied all the allegations levelled against him by the prosecution and claimed his innocence.

5. Learned counsel for the appellant contends that the appellant is an innocent and he has been falsely implicated in the instant case. He points out that the place of incident is shown 'Bilali Graveyard' where Chowkidar and other private persons usually remain present but despite this no private person was associated to witness the recovery while there are contradictions between the prosecution witnesses. He submits that there is no previous criminal record of the appellant showing involvement of the appellant in such type of cases. He also points out that the recovered property was sent to the chemical examiner after delay of 04 days without explanation to show as to whether the same was kept in safe custody or not. He prays for acquittal of the appellant.

6. On the other hand, learned D.P.G. admitted certain discrepancies and deficiencies in the impugned judgment.

7. We have heard the arguments advanced and have scanned the relevant record available or produced before us. According to FIR, the complainant party after patrolling various places when received at village Jamal Keerio, they reached spy information about the appellant to have hashish [charas] and selling the same in Bilali Graveyard and the complainant in his deposition has admitted the caretaker of graveyard and some visitors were present but he did not associate one of them to act as mashir and witness the recovery proceedings. The complainant also did not try to associate private person to witness the recovery proceedings at the time of receiving spy information. Though it is settled standard that judicial approach must to be conscious in dealing with the cases in which testimony rotates upon the evidence of police officials alone but we are also conscious of the fact that provisions of section 103, Cr.P.C. are not attracted to the cases of personal search of accused. However, where alleged recovery was made after prior information, even there is admittedly presence of private persons, hence, failure to secure independent mashers, particularly, in case of a recovery, cannot be brushed aside lightly by the Court. Main object of section 103, Cr.P.C. is to ensure transparency and fairness on the part of the police during course of recovery restrain false implication and diminish scope of foisting fake recoveries upon accused and the complainant only relied upon his subordinate police constables but did not associate private person to witness recovery proceedings. As far as, non-association of independent witness in the recovery proceedings is concerned, we are fortified with the cases of 'Nazir Ahmed v. The State' (PLD 2009 Karachi 191) and 'Muhammad Khalid v. The State' 1998 PCr.LJ 808.

8. It is worth noting that during examination of the depositions of complainant and mashir, we found a serious of contradictions in their testimonies while they were cross-examined, which are highlighted as under:- Complainant SIP Muhammad Raheem Mashir H.C. Muhammad Saleh Abbasi After leaving PS we patrolled towards Khadhar by pass, Khadhar Mori and then came at Jamal Keerio. We left PS and patrolled towards Ghulam Rasool Kot, Village Qalay Bux Rind and came at Village Jamal Keerio. We saw accused from 50/100 paces. We saw the accused from 10/15 paces. The scale was in police mobile which was brought by PC Hakim Ali. The S.H.O. weighed charas in digital scale which was brought by me from police mobile.

9. According to story of prosecution, 3000 grams hashish [charas] was recovered from the appellant but only 200 grams were sent to the Chemical Examiner for analysis, hence, it cannot be said as to whether the remaining 2800 grams were hashish [charas] or not. There is also un-explained delay of 04 days in sending the recovered hashish [charas] to Chemical Examiner for analysis, which is not explained by the prosecution. The prosecution has also not brought any record any previous criminal record of the appellant showing his involvement in such type of offences.

10. Another aspect of the case requires consideration. In the instant case, complainant SIP Chulam Sarwar is the head of patrolling police party and allegedly narcotics (chars) was recovered but the prosecution did not bother to take care of in the vital facet of the case. It is not appreciable that the complainant and Investigation, Officer of an offence would be one and the same person as happened in this case. In fact, complainant and Investigation Officer are two opposing parties. It is not the duty of Investigation Officer to establish the prosecution or complainant case but it is his duty of discover the real truth from the entire story of complainant party. We are of the view that the critical and essential responsibility of Investigation Officer demands that he should not be affiliated to or member of any party of a criminal case. We consider that it will not be out of place to point out that this sacred duty of Investigation Officer is mentioned Rule 25.2(3) of Police Rules 1934, which is reproduced as under:-- "It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person." From the language of the above rule, it manifests that Investigation Officer should not commit himself prematurely to any view or opinion of the facts for or against any person i.e. complainant or accused. Thus, even under Police Rule, 1934, it is not expected from an Investigation Officer that he should be part of the complainant party. The Hon'ble Supreme Court has observed similar view with a different angle in a case reported as 'State through Advocate General, Sindh v. Bashir and others' (PLD 1997 Supreme Court 408), wherein it is held as: "As observed above, Investigating Officer is as important witness for the defence also and in case the head of the police party also becomes the Investigating Officer, he may not be able to discharge his duties as required of him under the Police Rules". Similarly, in a case reported as 'Ashiq alias Kaloo v. The State' (1989 PCr.LJ 601), the Federal Shariat Court has observed that investigation by complainant while functioning as Investigating Officer is a biased investigation.

11. The above pointed circumstances and deficiencies dent the prosecution case and create doubt; in our view, where a single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. In this regard, we are fortified with the cases of 'Tariq Pervaiz v. The State [1995 SCMR 1345] and 'Muhammad Akram v. The State' [2009 SCMR 230].

12. Under the circumstances, the case of prosecution appears not to be free from doubt. Consequently, the instant appeal is allowed and the appellant is acquitted from the charge by setting aside the impugned judgment and appellant is ordered to be released forthwith if he is not required in any other custody case. Office to issue such release order. These are the reasons for our short order dated 12.12.2018. SA/H-16/Sindh Appeal allowed.