Sadam Hussain (Appellant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDH'

CIRCUIT COURT HYDERABAD

Before Mr. .Justice Naimatullah Phulpoto Mr. Justice Mohammad Karim Khan Agha

Cr. Appeal No.D-29 of 2017.

Sadam Flttssain Rincl

Versus.

The State

Appellant : Sadam Through Mr. Haji Khan Jamali, Hussain Rind Advocate.

Respondent: The State Through Syed Meeral Sh ah Bukhari, Additional Prosecutor General

Date of hearing 25.O5.2017.

Date of judgment 25.05.2017.

JU DGMENT

MOHAMMAD KARIM KH AN AGHA, J.- This appeal is directecl against the judgment dated og.og.2ol7 passed by learned special Judge for CNS, Shaheed Benazirabad, in Special Case No'470 of 2016' arising out of Crime No.134/2016, registered at Police Station Sakretncl, under section 9(c) of control of Narcotic substances Act, 1997(CNSA), whereby the appellant Sadam Hussain Rind has been convicted u/ s 9(c) CNSA and sentenced to'suffer RI for 04 years and to pay the fine of

Rs.2O,OOO/-. In case of default in payment of fine he was orderecl to -+ suffer simple imprisonment for 05 months rnott (th" impugnecl judgment). Benefit of Section 382-B Cr.P.C. was also extended to the ' { 1l\qcused.

'i? Brier facts of the Prosecution case, Lsr,, €rre that on

,':iil5.o8.2016 at about 1845 hours, police party headed by SIP/SHo ' .tsgnar Ali Awan of PS Sakrand upon receiving spy information reachect at sarhai sakrand Link Road at zour Phatak and apprehended the present accused and securecl 1300 grams of contraband item from his v-

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possession. Out of the saicl contrabancJ item 100 grams were separated for chemical analysis. 'I'hereafter, the contraband item and its sample, as stated above, were sealed separately and memo of arrest ancl recovery was prepared on the spot in presence of mashirs' Then the accused and the case property were brought to the police station where F.I.R. was lodged by complainant SIP/SHO Asghar Ali Awan on behalf of the State under section 9(c) CNSA.

3.During investigation, Investigating officer recorded 161 Cr.P.C. statements of the PWs. sample of the Jecovered substance was sent to the chemical examiner on 23.08.2015 through PC Ghulam Rasool ancl positive chemical report was received. On the conclusion o[ investigation challan was submitted against the accused for offence r-r/s 9(c) CNSA.

4.Trial court lramed charge against accused atF;x'2 u/s 9(c) CNSA' to which, accuserl pleaded not guilty and claimed to be tried vide his plea at Ex.2lA. At the trial prosecution examined PW-1 Pc Amanullah at Ex.3, who produced. mashirneuna of arrest and recovery at Ex'3-A' mashirnama of vardat At bx.3-B, PW-2 complainant/SIP Asgiiar Ali

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Awan was exarnined at Ex.4, who produced F'I'R' at Ex'4-A' photo attested copy of roznamcha entry of departure and arrival at Ex.4-B-1 & 2, chemical report at Ex.4-C and thereafter' prosecution side was closed at Ex.S.

5.Statement of accused was recordecl u/s 342 Cr'P'C' at Ex'6' The accusecl denied the prosecution allegations and claimed hi:-; lalsc implication i1-r this case. The accused neither examined himself on oattr nor lecl any evidence in defence in order to disprove the prosecution

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6.Learned Special Judge after hearing the learned counsel for the parties and examining the evidence available on recorcl convicted ancl ntencerl the appellant as stated above in the impugned judgment ce this appeal

i Learne,l trial court in the impugned judgment has alreacly

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; djicus="a the evidence in detail and, there is no need to repeat the salne here, so as to avoid duplication and unnecessaly repetition.,lL-;

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B. Mr. Haji I(han Jamali, learned advocate for appellant has contended that the prosecution case is highly doubtful; that this is a case of spy information and the place of incident was located at busy spot, yet, none from public was joined to attest the arrest and recOvety; there are material contradictions in prosecution evidence, hence it cannot be safely relied upon; that as per prosecution case the sample was sent for chemical analysis on 23.08.2O15 through PC Ghularn Rasool with a delay of 07 days hence tampering with the case property during such period could npt be ruled, out. He further argued that PC Ghulam Rasool through whom the sample was sent to the chemical examiner, has also not been examiqred. Lastly he argued that tl-re accused has been involved in this case falsely. In support of his contentions, learned counsel for the appellant relied upon the case of Ikramullah & others v. the State (20i5 SCMR 1002).

g. Syed Meeral shah, learned Additional Prosecutor General sindh very fairly conceded to the contentions of learned counsel for the appellant and did not support the impugned judgment'

10.We have carefully considered the arguments of the learnecl counsel for the parties, scannecl the entire evidence and reviewed the relevant case law

I 1. We have come to the conclusion that prosecution has failed to establish its case against the appellant; , for the following reasons; that accused was folrnd in suspicious manner and 130O grams charas was recovered from his possession but despite having spy information and the alleged place of incident being a busy area apparently no efTorts have been made to pick up an independent person of the locality to witness the ar.rest and recovery proceedings despite the police having -.1 adequate time to clo so and the offense taking place in day light hours which castes doltbt on the arrest and recovery; that no effort was rnade o send a fake purchaser to the appellant to see if he was actuer-lly elling the narcotic who would have made a compelling witness for the it osecution if the appellant was in fact selling the narcotic; i ,i'urthermore it does not seem believable that one person managecl to escape on foot when confronted with a police mobile consisting of armed police men; that the appellant has been charged under s.9o Yt-

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CNSA which carries the death penalty as suctr the learned trial j'Udge of his was legally obliged to ensttt'e that the appellant had a counsel choice or one appointed at State expense if he could not afford,one however this was not clone by the learned trial judge which in our view

caused serious prejudice to the appell7nt in conducting his defense was only a especially in terms of cross examination of witnesses as he layman with no knowledge/experience of the law and as such in our process rights view this amounted to the violation of the appellants due aSguaranteedunderthecoqstitutionespeciallyintermsofArticlesl0 arrd10(A).Inadditionitiswellsettledlawthatwhenanappellantis facing a capital offense a lawyer must be provided for him' In this regard reference is made to the case of shafique Ahmed V state (PLD 2006 Kar 377) which helcl as under at P'381:

10.Article 1O of Constitution of IslamicbeRepublic o1

pakistan, roia-prorides that the accused shall not denied the of his right to .orr*ult and be defended by a legal practitioner entitled' as ii choice. Under section 340(1), Cr'P'b' accused is said provision matter of .igfrt, to be defended by a pleader' The reads as under:- e lr of ed d 1S a lns d d before a witness.--( 1) Any Persoll accused of an offence zIIe Criminal Court or against whom Proceedings such Court, maY of right be defended bY a Pleader'" and Sindh

1.Circular 6 of Chapter VII of Federal Capital of the Courts Criminal Cit;;; ;rovides that on the committal from the accusecl as case the Magistrate is required to ascertain at his owtr to whether he intends to engage a legal representative provide an Advocarte -io Sessiitt" Co"i would expense otherwise the on State expense atf""a him' The said Circular reacls as under:- "6. Ilt all cases in a'Court of Session inthe acpusecl which arry -- person is liable to be sentenced to death' at the shall be informecl by the committing- Magistrate time of committal,'or if the case has already been committed by the Sqssions Court that' for- legal i unless he t :. I intends to make his' own arrangements assistance, tft" s"""llns Court will i

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engage .a !es{ pi^Ji,io"", at Government expense to appear before it i, t i" behalf. If it is ascertained that he does not intend to engage a legal representative at lt"-- o'Y" "q,iUifi"d '-Legal P^ractitioner shall be L-*-1r".r"", o ;;;A"d by the Sessions. coult concerned to as well undertake the del-encei ancl his remuneration'

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3gz the copying expenses incurred by him, shall be paid by Government.

The appointment of an advocate or pleader lbr del'ence should not be deferred until the accused has been called upon to plead. The Advocate or pleader should always be appointed in sufficient time to enable hinr to take copies of the deposition and other necessary papers which should be furnished free of cost before the commencement' of the trial. If after the appointment of such legal representative the accused appoints another Advocate or pleader, the Advocate or pleader appointed by the Cor-rrt may still in its discretion be allowed his fee for the case."

12.Rule 35 of Sindh Chief Court Rules (Appellate Side) also deals with the same subject which reads as trnder:-- "35. In what matters Aclvocate appointecl at Government cost. When on a submission lbr confirmation under section 374 of the Code of Criminal Procedure, lB9B, or on an appeal from an acquittal or on an application for revision by enhancement of sentence the accused is undefended, an Advocate shall be appointed by the Division Court to undertake the defence at the cost of Government in accordance with the Government notification or rules relating thereto. Such Advocate shall be supplied et copy of the paper book free of cost."

13.From the above position it follows that an accused is required to be defended by a counsel of his choice as a matter of right. If an Advocate appears on behalf of Ltre accused then he is required to be allowed to defencl t.trc: accused. In an offence involves capital punishment, the lar'r' protects the rights of the accused as a duty has been car;t upon the State to bear the expense of the Advocate if i:tre accused is unable to engage all Advocate. When the committal proceedings were being conducted then at tl-re time of committing the accused to the Court of Session the Magistrate was required to inquire from the accused as to whether he would like to engage Advocate of his choice and in case he was unable to do so then the acctrsed was required to be informed that the Sessions Court lvoulcl provide him an Advocate on State expense to defend his case. The committal proceedings have been abolished. Therefore, now the Magistrate, before the case is sent up to the Court of Session, shall inquire from the accused abotrt the requirement of Circular 6 of the Federal Capital and Sindh Courts Crimina-l Circulars. Such facts should be mentioned in the diary to facilitate the Court of Session to decide in which, cases a counsel on State expense is required to be appointecl. In other cases or in which the Magistrate has not obtarned the required information, a-r; soon as the accused appear's before the Court of Sessiorr, iL FrV-2

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is the duty of the said Court to ascertain whether thc accttsed is represented by an Advocate or otherwise' lf he is not being represented by :an advocate then the Sessions Court is bound to engage a legal practitioner on Government expense to defend the accused. It is one of the duties of the Court of Session to see that the accused is represented by a qualified legal practitioner in the cases Y involving capital punishment. Thus, it is the mandate of the law thal ca""" involving capital punishment shall not be tried in the absence of Advocate for the accused or proceeded with. without first appointing aIl Advocate for the accused to defend him if he is unable to do so."

12.Significantly, as noted above there was an unexplained delay of 7 days from the recovery of the charas to sending it to the chemical examiner and nothing has come on record to show that the recovered charas was kept in safe custody during that period. There was no evidence that the charas was handed over to the malkhana, no copy of the malkhana entry was produced, the in charge of the Malkhana was not examined to prove the safe custody of the charas throughout this 7 day period. Furthermore, PC Ghr,rlam Rasool who sent the sample for chemical examination as per the chemical report has also not been examined by the prosecution in respect of the charas' safe custody or safe transit and as such there is likeiihood that such sample may have been tampered with /interfered with after its recovery and before it was sent to the chemical examiner which would mean that the report of the chemical examiner cannot be safely relied upon and the fact that it has proved positive under these, circumstances of non safe custody will not assist the prosecution case. In respect of the importance of siafe custody of the narcotic in a case uncler the GNSA reliance is placecl orr thecaseofIKRAMULLAH&oTHERSv/S.THESTATE(2o15SCMI1 1OO2) where it was held as under:-

I '5. In the case in hand not only the report subrni[ted by but safe custody the Chemical Examiner was legally laconic of the recovered. substance as well as safe transmission of the separated samples to the office of the Chemicril prosecution' Examiner hacl also ,rtt b."., established by the if is not disputed that the investigating officer appearing the before the learnqd trial court had failed even to mentior] ;;. of the poii.. official who had taken the samples to ttre office of the chemical Examiner and admittedly no such poti".officialhadbeenproducedbeforethelearnedtrial 'Court to depose aboui safe custody of the samples entrusted to him for being deposited in the office of the tJ v

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l tttt Chemical Examiner. In this view of the matter ilre prosecution hAd not been ,able to establish that after the recovery the substance so recovered ,{teSef was litf,".'f..pt l safe .custody or that the samples taken from the recovered substance had safely been transmitted office of the Chemical trxaminir *iifrort to .the tampered with or replaced while in the same Leing trLsit.,, 13' In view of the above, and for the other reasons mentioned .ear.lier we have no hesitation to hold that in this case the prosecution has failed to prove its case against the appellant beyond a reasd,habre doubt' There are several circumstances which create aorut ;;;

prosecution case. In the case of Tariq pervez v/s. The state scMR 1345), the Honourabre supreme [1gq5 court has observed as folows:_ "ft is settledr hw that it is not necessary should many circumstances creating doubts. that ihere If there is a single circumstance, which creates reasonable in a prudent mind_ about the guitt of the accused,d.oubt the accused will be entitled to the benefit not then as a fajter of grace and concession but as a matter of right."

L4' Thus, for the above stated ."."or",, we hold that the prosecution has 'failed to prove its case against the appenaat beyond a reasonable doubt, therefore, while extending the benefit of doubt, appeal was allowed by short order dated 2S.OS.2O|T and the conviction ancl sentence recorded by the tria-l court were set aside and appeila,t was acquitted of the charge and was ordered to be immediately released from custody in respect of this case unress his custody was *n.o"[i,, any other case

15.Above are the reasons for our short.,order of even date.

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Dated: ---, JUtJ''li.

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