Umed Ali Khoso (Appellant) VS The State (Respondent)

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IN THE HIGH COURT,OF SINDH'

CIRCUIT COURT HYDERABAD

Before:

Mr. Justice Naimatullah Phulpottr Mr. Justice Mohammad Karim l(ran Agha

T Cr. Appeal No.D-136 of 2OlO

Umed Ali Khoso

'Versus.

The State

Appellant : Umed Ali Through Mr Mrthatrtlr-ta.rl,.lalrteel I(hoso (presently on bail) Ahmed, Advocate

Respondent : The State Through SYed Meeral Shah l}.rl,hari, Additional Prosecutor Genet'al.

Date of hearing 18.O5.2017

Date ofjudgment t8.o5.2017.

JUDGMENT

MOHAMMAD KARIM KHAN AGHA J.- Tlris aPPeal is rJilecf.e..l against the judgment datec 13.o4.2o1o passed by lea,rnerJ fle$lto(r:r ol Judge / Special Judge for CNS, Mirpurrkhas, irr Lipecial Case No'2ii 2OO7, arising out of crime No.O9/2Or)'/, 1-e5psl er'erl i,rl lkrlir:e ill:rri'}rr Divisional special squad (Excise) Hyclerabacl llegiort, under i-rcr;l i(-1ll 9(c) of Control of Narcotic Substances Act, 1997 (CNSA) wherelr'1' ttlr' t'r appellant Umed Ali was convicted }/s 9(c) of GNSA atr.d sentenqqrl , suffer Rl for O3 years and to pay the fine of l1s'10'OOO/-' [n cas'] rtl default in payment of fine he was or"deted lr-'t srr,l-[et':rirrrlrlr. .'l imprisonment for o1 month more (the imptrgtrecl irtrlsrrter.rl). I-"etrr:[rl Gi 3 Section 382-B Cr.P.C. was also extencled 1-o lhe acr:t-t-rretl'

2.Brief facts of the Prosecution case as cliscloscd iu the ]:rl'lt at.l' ui i.,:l t,ry that p resent accusecl was arrested on 10.05"200'7 at l'7oo hout]s 61' l(rtl 'i

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Ghulam Muhammacl Torrln, Patri of Jzunshoro canal, by a police par'l-y heacled by trxcise Inspector Jawaicl l(arim alongwith hiri srthrrrilitrlrit- staff which amongst others included AETO Abdul .lahbar Gtrarrgro' Accused Umed Ali was said to be found possessing five paclrets containing 05 IQs of charas. Out of which [O grams li'orn ear:tr pacl<el was Sepalated for sending the same to the chernii:al ex;unitret liit'

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analysis ancl report. Thereafter, the contratrancl il.ertrs. Lts slaterJ trhtirrr"' were sealed and memo of arrest and recovery was prepaterl or.t llLe rrlr'rl in presence of mashirs. Thereafter, accusecl arrd (:it.ie l)fo[]el.l.\r rv''ir brought at police station where F.l.R. was lodged l:y <:ornplairratrl Inspector Jawaid l(arim on behalf of the State uucltr n.",iut, t|(r:)

CNSA.

3.During investigation, Investigating officer I'ecorded 161 Clr.l'.tl' statements of the PWs. Sample of the Substauce / ,'ltrtt','rr. 1V6e;5'e111 lt, the chemical examiner on 11.O5.2OO7 through ED Allatr Waralro ;'ttrcl positive chemical report was received. On the t:onclusion ol investigation challan was submitted againsl. the accrlse(l lbr oll'e'nrle u/s 9(c) of CNSA.

4.Trial court framed the charge agairrst the arrt:ttricel al [')x.'.1 rl/:', 9(c) of cNS Act, lgg7, to whictr, accusecl lrlearlt:r'l tr6l l1ttlii, rrrrrl claimed to be tried vide his plea at Ex.3' At the trial prosel'11lirrrt examined PW-1 Excise Jamadar Sikandar Ali at IIx.'[, who prrrttttcetF the mashirnaina of arrqst and recovery at. I]x.zl lA: I',W-2; E)[_'larrt-, I Karim at Ex.5, who produced the at-tested cop.y ol rozttatucl'ra etttt'ierr No.4 and 5, FIR ancl report of the chemical exatniner: at IIx.!:i/A hr l,/tl and thereafter, prosecution side was closed at Ex'6'

5.Statement of accused was recorded u/s 342 Cr.P.C). at Dx.',r. ',l'tre accused denied the prosecution allegations ancl cleritnetl his fa'lse implication in this case. The accused producecl newspaPer r:r-ttlilrgli from daily lbrat, daily Sham and daily Kainal asj eltlrlfrxlltt:s 1\ to (-'irr support of his contentions. The acr:used also exant t-tr't'l l-titttst'll' ';ri ffi Oath u/s 34O (2) Cr.P.C. at Ex.B, and also he exatrttttetl l)Wr;1\[r'lrrl Rasheed at Ex.9, Ali Hassan at trx. 10 and sawan at trx. 11 irr lriri defence and closed defence side vide Ex. 12' t'* {y

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6.Learnecl Special Judge after hearing the learned counsel for the parties and examining the evidence availatrle ott rer:ottd conviclr-"rJ rirrrrl sentenced the appellant as stated above t.trt'tlugli ('lte itirprtp"rrnrl judgment. Hence this aPPeal.

7.Learned trial court in the impugnecl .iudgrnent has alreirtli' Y discussed the evidence in detail ancl thele is no need to reperrt llrr' same here, so as to avoid duplication and r-tnrlecesstrrv feJretilirrtt B. Mr. Muhammad Jameel Ahmed, learned ftrl\ror:al.rr ti;r' llrr appellant has contended that prosecution case is trighly <loubtfitl; llie place of incident was located at busy spot, yet, none liorn public rv;u' joined to attest the arrest and recoverY; flret'e al'e nrate|inl contradictions in prosecution evidence, hence it cannot be relied LII)orl; that there was delay in sending the case property to tl-te clteltti' Hl examiner and tampering with the case property dr,tring srtr)h l-ret'irtrl could not be ruled out. It is argued that alleged recover.y was ttl?rde otr 10.05.2007, whereas the sample was sent to cheurical Alralyzer trrr 11.O5.2O07 with a delay of o1 day and no evidence lras heert trlorrgltl on the record that charas was in the safe cttstody drrriu6" thal }'et ir'tl He further argued that ED Allah Warayo througlr \.ll''ttl tlle siu'trPl'' I'l

charaS WaS sent tO ChemiCal Examiner hasi aJliO ttrrl bt-elt exitiiliir'=''I Lastly argued that accused has been involved in tlris lalse t:ase '[tJe tt' political rivalry. In support of his contentions, leartred courtsel ll)t' f lrr' appellantreliedupontheCasesoflkramullah&,othersv.tlr.eStrr*e. (2015 SCMR 1002), Mian Muhammed Arshad v $tate (P.Cr.L) lttrl'f (.ierir:t^r'r1 g. syed Meeral shah, learned Additional I'roser.:rtlor i-irit(lli very fairly conceded to the contentions of learned cottnsel liu'l-lr'' appellant and dicl not support the impugned judgment'

10.we have carefully considered the content.iorrs ol Mr' Mrthaltttrtntl Jameel Ahmed, learned advocate for appellanl-' fiyed Meeral filralr' learned Additional Prosecutor General sind fbl. the l:ilalc. sr:r.tttllr:rl ltt| )i' entire evidence and considered the relevant law' ,fi ll.Wehavecometotheconclusionthatprosecrrt,iorrhas[ai[e,ltr, q I establish its case for the reasons that it was case ol'spy ittltrrtrtalir-rtr and the police had plenty of time to call indeperrclenl nttrshirr in tlrir;

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thickly populated area which they completel.y failed to clo rlespir.e having plenty of time to clo so which rvoulcl have given rnr.rctr pre;rtr.r credibility to their case; the time ol' the arrival entry ancl t.he lill.t :rr.c the same which is not believable as there ought to be at least a tt) [.lL minutes gap in arriving and register.ing the IrlR; there is als. overwriting in entry No.Si which has not been exprairreri: 1-rrinra |ac,ie v the malafide of the pott" is also shown by the facr thert accorclinFl to the evidence of PW Javerl Karim (who was t.tre porice olrit:er wtr, prepared the memo of arrest ancl recovery) the a.cr:rrsr--rl tolrj trirn llrrrl he purchased the narcotics from Muhammecr Khoso [or. selli,g lrrrt Muhammed I(hoso's statement *."t.rot recorcred try the police; r.tre recovery was doubtful as in one packet there was one big piece arrrr r small pieces yet no part of the small pieces urere se,t Ibr chemrr:al analysis; the accused maintained his defense throlrgh*ut 1r i.al irrcluding during his cross examination, l-ris s.342 sl,atemerrL :rrril evidence on oath and through 3 DW's that this \/as.a {alse and foisled case on him for political reasons and that he had been an.r.estecl fr.rr his Mohalla on o9-05-2oo7 (i.e the clay before his arrest was shor,vr-r i. the FIR) and that nothing had been recoverecl liorn hirn"

12.More significantly there was no evidence lhat ltle rer.ir,rr:r,r.rI narcotics were kept in safe custody betweerr 1() a.rrrl lltr, fy{ay .i(x)r when the recovered narcotics were taken by ED Allah warayo tt.r l.lre chemical examiner. No malkhana e,tr-y was producecl, tlre lceeper' <,rl' the malkhana was not examined nor was IID Ailah wara.y, co,celrurrt. the safe custody and safe transit of the chemical rvhictr coulcl have been interferecl with after its recovery and thus thc chenrirral rr,'1.-ri,i.l cannot in otrr vierv be safely reliecl Lrpon. h-r this respec:t reliarr,,c: ir; placed on the case of IKRAMULLAH & orHERs v/s. THD fJTATIi (2015 scMR 1oo2), the relevant portion of which is reprochlcecl hereunder:-

"5. Irt the case in hand not onlg the report stt.bmittecl tryl the Chemical Examiner utas legallg l.acon.ic bttt sr.tfe ct.storlq rtl' ,#i the recouered substance as uell os safe trrutsriission ,-rlt llt,- separated samples to th.e office of the Chetn.ical Exurtriner hqd also not been establishecl by the prosecutiort. It. rs rr+tt t{'*l disputed that the inuestigcttittg officer appearing be.fore tlte \ -i'' lea.rned trio.l court had faitecl to eue-n lo mention the nurrte i,f the police offtcial who harl talcen tlrc samples to the rL.fl,ir.:r: ,,5 a -$," f l,'r.'

the Chemical Examiruer and ctdntil1"edl11 n.L't such l?olice t>ffttitl lutd been produced be.fore the leitnterl ttitl (.\nu f ft', 1-f17;.r1 ,'.a- ctbottt. safe custodU o./'tlte :';..tltple::.; ''rr.itrt.."tr:rl lt, lttttt lttl l* ri11, deposited in the oJfice oJ'tluz Chenicttl l-tt ttrrrirttt lrt !lri:; t",-it, of the nletter the prosecution h,ad tlot Lre.en oltl.e t.t't e:,htlLli::;lr ttmt after the alleged recouera l.he substtt r(re .s() t tlt:\rt)€t ed tucts either lcept in safe arctodlJ ot'tl'till tlt,, :,:t1t1rl-tle,ri {a/re-rr Y liorrt the recAuered substarlce l:rad. snteht lte+'tr ltrt;rsntit.terl l,'' t,rrc office of the Chenical E)xant.iner 11fif !1atut llte sl.tne lteitr'1 tannpered utith or replaced while in tt.nrt:;il "

1:J In 'riew of the above, we have no hesital.inlt in lrnl, lilrg llri,ri lrr llrr:'' t-itlie l.rttsecl on the reasons.mentior-reciabove tlre pro:ser:r-rlirru has tailr., I l.t,r f.irorze its case againsL the appellant beyoncl er rerrsoniltrle r-lr'rr.rlrl. 'l'ltr:.r. e: ale several circumstances which create rlorrlrl rr.r tlre Prr-rser:r rl ior r ,rarse. llr the case of Tariq Pervez V/s. The lll:ato (tc)-cli.i iJ()Mli I 14!,) , ttre Honourable Supreme Court has observecl as lbllor,vs: - "ft is settled law tho;t il is nol tte(-'{}!ir;{f.rT, l:lux.:t. i'ltt:t ^ sltottld manu clrcumstalnees ered.tirt.gl do,rl.lt4s" .l.f ili+:t-tt is cr single circumstance, wh.iclr. crerrtes res.sortttltl<: tlortbt ilt a pntdent mlnd s.lt<srtl- l:lrc. grtllt 9f tloc rtr:crtsecl, then the ccct'rserf wlll lr'rr t:rtllt:l'r:d l"t i]'t't" ltclrefit ttot as u tnuttel- ,qf gt'ttce rutrl c<rJtr-ress'irr'rl Infi: rrt u trnr::tter af right"" ,

l'l . '['hus, for the above stated reasons, we holcl tha.l'l.he l:rrosecu[iotl lras Iailect to prove its case against the appellant. thetefore, vslrilc erxlending the benefit of doubt, appeal is aflorue<l. 'l'he irtrprtllrre<| 1utclgtnent is set aside and the appellant is acqtril.l.er.l o[ tlre t:ltrrtgr' l\ppellar-rl is present on bail.,His bail bond stancls carlc:elled an(l srl-ell/ is her-eby discharged

ll'i. 't'lrese are the reasons lbr our short order of erierr rla.l-e sd/- MUtlAIvit'iA, KARfM KH^N aGira '

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ri Datecl: t il[: )t Sd,/- NAIIliAtUlLAii rHUL1-o'I'e,'

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/ JUDGEI,1t"r.817.

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