Javeed (Appellant) VS The State (Respondent)

t1

I

IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD I

Before

Mr. Juslice Abdul Maalik Gaddi Mr. Justice Mohammad Karim Khan

Cr. Appeal No.D-17 of2018

l Javed

Versus

The State

I

-ttv Cr. Appeal No.D-18 of2018

Khadim Hussain

Versus.

The State

Cr. Appeal No.D-23 of 20'18

Ghulam Sarwar

Versus.

The State

A ppellant Javed (present Through Mr. Behzad Ali Umrani, Advocate on bail) in Cr. Appeat No.D- 17 of 2018 I Appell ant Khadim Hussain Through Mr. Masood Rasool U (present on bail) in Cr Memon, Advocate lNo.D-18 of201B Ap pellant Ghul;rm Sarwar Through Mr G ulamullah p res en o b a ) n C ( Advocate A N o D-2 o t 2 0 o Responden t : The State Through Mr. Shahzado Saleem Nahygon Prosecutor Date of heari o ud ment 04.09.2018

JUDGMENT

o A RI K HA AGH Si criminal appeals have arisen :of one a 07.02.2018, passed by the learned lllrd Ad

zo Special Judge, Control of Narcotic Substances Act, Hyderabad in Special Case No.147 of 2016 (Cr.ime No.74 of 2016) of Police Station Sqkhipir, Hyderabad, under section 9(c) Control of Narcotic Substances Act, '1997 (CNSA), therefore, we propose to decide the same by this common judgment.

2.Through impugned judgment, the learned trial Court convicted the appellants named above (Javed, Khadim Hussain and Ghulam Sarwar) u/s 9(c) CNSA and sentenced them to suffer Rl for 05 years and to pay the fine of Rs.20,000/- each. ln case of default in payment of fine they were ordered to suffer simple imprisonnrent for 01 month more (the imgugned judgment). Benefit of Section 382-8 Cr.P.C. was also extended to the accused.

3.Brief facts of the prosecution case as disclosed in the FIR are that present accused were arrested on 05.12.2016 from near Sattar Shah Graveyard, Sattar Shah Road, by a police party headed by SIP Dili Jan Rind alongwith his subordinate staff. lt is further alleged in the FIR that accused Khadim Hussain, Ghulam Hussain and Javed, each were found possessing.five packets containing charas. Police party also recovered 25 packets of charas wrapped in plastic paper from the vehicle of'lhe accused persons. The charas recovered {rom each accused was weighed and found to be 05 kilogram; whereas the charas recovered from the vehicle was also weighed and found to be 25 kilograms. Out of the contraband items, recovered from each accused, 100 grams were separated, whefeas from the contraband item secured from the vehicle, 0'l kilogram eha.ral was separated for sending the same to the chemical e4aminel for analygil , and report. Thereafter, the accused, contraband iteps and vehicle, aE stated above, were secured ancl memo of arrest and recovery was prepared on the spot in presence of mashirs. Thereafter, accused and case property were brought at police station where F.l.R. was lodged bV complainarrt SIP Dili Jan on behalf of the State under section 9(c) Cl-rlSA.

4.During investigation, lnvestigating Officer recorded 16'! :'Cr,P.C. statements of the PWs. Sample of the subslance / charas Was sen! to the chemical examiner through PC M. Yousuf and positive chemical fepo( was received. On the conclusion of investigation challan was submitted against the accused.

Lr/

a

zl

5.Trial court framed charge against accused at Ex.S uls 9(c) CNSA, to which, accused pleaded not guilty and claimed to be tried vide their respective pleas al Ex.6 to 8. At the trial prosecution examined lnvestigatioir Officer / SIP Dili Jan Rind at Ex. 12, who produced mashirnama of arrest and recovery, F.l.R., cleparture and arrival entries, entry of PS: Sakhipir, copy of entry of register No.19, order of SSP Hyderabad, letter of police to Chemical Examiner and Chemical Analyzer's a report at Ex.12lAto Ex.12iG, respectively; P.VV-2 PC Muhammad Zareet al Ex.13 and P.W-3 SHO lftikhar Ahmed al Ex.14 and thereafter, prosecution side was closed at Ex.15.

6.Statements of accused were recorded uls 342 Cr.P.C. at Ex.16 to 1 8. The accused in their said statements denied the prosecution ] allegations and claimed their false implication in this case. However, neither they have examined themselves on oath nor led qny f,.efence evidence.

7.Learned Special Judge afler hearing the learned counsel for the parties and examining the evidence available on record convicted and sentenced the appellants as stated above by thq impugned judgment.

Hence these appeals.

8.Learned trial court in the impugned judgment has already discussed the evidence in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition

9.Learned counsel for the appellants have conlendeQ that the prosecution case is highly doubtful; the place of incident was located at \t w busy spot, yet, nobody from the public was joined to attest the arrest andI recovery; there are material contradiclions in the prosecution evidence, hence it cannot be safely relied upon; that there was {e!ay in geqding {fe case property to the Chemical Examiner and tampeling with lhp aage property during such period could not be ruled out. lt is argued thBt alleged, recovery was made on 05.12.2016, whereas the sample wqs sen! a.4! received in the office of Chemical Analyzer on 09.'12.2Q16 wi![ an unexplained delay of 04 days and no evidence has been brought on the record that charas was in the safe custody during that perio{ an( in {ac[ PW 1 Dili Jan admitted in cross examination that he manage{ the ghemicSl report. Lastly the appellants submitted that the narcotics had been foiqted on them and that they had been falsely implicated in the case sinqe there

>L

was enmity between them and the police as before the incident one of the appellants had filed a Constitutional Petition against the police before the High court for harassment and thus for all the above reasons the appellants were entitled to be acquitted by being extended the benefit of the doubt

10.Mr. Shahzado Saleem Nahyoon, the learned Deputy Prosecutor General, very fairly conceded to the contentions of learned counsel for the

I

appellants and did not support the impugned judgment.

11.We have heard the parties, considered the evidence on reqord and the relevant case law.

\; 12. We have come to the conclusion that the prosecution has failed to prove its case against the appellant beyond a reasonable doub! for the following reasons; that the police party arrested the appellant from a thickly populated area but the police did not associate any independent person of the locality to witness the recovery proceedings. There was also nothing on record that the complainant had attempted to call any private person to act as mashir. This aspect, although not fatal to the prosecutions case, was important because one of the appellants had raised the defense thqt he had been falsely implicated in this case due to enmity, for which hq has relied on a constitution petition which he had only 4 months before the incident filed against the police for harassment and as such ,independent corroboration of the police version of events was important to ensure that it could be safely relied upon; that the complainant was also the lO in lhe case which though nol unlawful creates a further measure of suspicion when the appellants have claimed false implication on account of gnmity; tu that the charas was recovered on 05.12.2016 and sample was sent to the chemical examiner on 09.12.2016 after an unexplained delay of 4,days when the law requires such samplgs to be sent for chemical analy$iS within 3 days of rbcovery although this delay is not fatal as such rufgS are directory in nature and not mandatory such non compliance aroq,ses further suspicion and that the prosecution has accepted that the qhepical reports were managed by one of the PW's during his cross examination (although wd do not give this so called admission much weight as the word managed most probably related to the managerial function of the lO in xamination rather than him admitting to manipulating the chemica I repon)

13' Most significanily, we find that there is; very ritfle evidence on recold to show that the charas was kept in safe custody from the time of its recovery until it was sent to the chemicar examiner; that the rncharge of the Malkhana has not been examined and that pc yousuf who derivered the chemical to the' chemicar examiner has not Deen examined as to its safe custody. we note that the impugned judgment in thrs respect refers to the case of Muhammad Sarfraz V The State (2017 SCMR 1g74) where there was no negative evidence of non safe custody and as such the conviction was upheld., Muhammad Sarfraz's case (Supra) however was by a two member bench of the Hon'ble Supreme Court and the case of lkramullah & others v/s. the State (2015 SCMR 1OO2) which was by a three member bench does not seem to have been brought to its attention. ln

J,I

lf lkramullah's case (Supra) the emphasis was on the positive p;oof of safe custody of the narcotic by the prosecution from thq lime of its recovery until the time it went for chemical examination which would rule out any possibility of the narcotic being tampered with. Since lkpmUllahls case (Supra) was decided by a three member bench of the Hon,ble Supreme Court and was not brought to the aftention of the Ho4lblg Supreme Court in Muhammad Sarfraz,s case (Supra) we are inclined to follow lkramullah's case (Supra) in respect of safe custody of the narcotic-

14.Thus, in our view in this case since there is a posgibilify that fhe narcotic during the time it was recovered from the appellants and was $ent for chemical analysis may not have been kept in safe cugtody and may havebeentamperedwithwefind,thatevenapositiv9chemicalreFo,ti,ot' no assistance to,the prosecution; the significance of keeping safe cqstody \l of the narcotic in a case under the CNSA has been. emphAsized ,i; lkramutlah's case (Supra), the felevant portion of which ig feRroOqceO : I hereunder:- ' '" "5. ln the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the officg of the Chemical Examiner had also not been established by thi prosecution. lt is not disputed that the investiglting officer appearing before the learned trial court traO faiteU to.even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose aboqt ,pqfe

>\ l"

custody of the samples entrusted to him for leing deposited in the office of the Chemical Examiner. ln lhis view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in $afe custody or tha! the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit." (bold added)

I 'l 5. Under these circumstances ancl for the other reasons mentioned i

above we ar:e of the considered view that the prosecution has not proved its case against the appellants beyond a reasonable doubt. lt is well setUed law that the benefit of doubt must go to the accused by way of right as 1[ opposed to concession. ln this respect reliarrce is placed on the case of Tariq Pervez V/s. The State (1995 SCMR 1345), wherein lhe Honourable Supreme Court has observed as follows:-

"lt is settled law that it is not necessary that there should be maqy circumstances creating doubts. lf there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of righl."

16.For the above stated reasons, we hold that the prosecution,has failed to proye its case against the appellants, therefore, while extending the benefit of doubt, the appeals are allowed. The convictions and sentences recorded by the trial court through the irppugned judgment are setasideandtheappellantsareacquitted,TheAppellantSareonbailand as such their bail bonds are cancelled and sureties are dischalggC. These are the reasons for our short order which was announced in open court tu "Parti.--s advocates have been heard. They have concluded their arguments. For the reasons lo be recorded latgr. pn, thesel criminal appeals are allpwed. lmpugned jqdgment stands set aside. Appellants present on bail. Their bail bonds are calcelled and suretles stand discharged."

k/W

JUDGE

erf",fn

JUDGE

ORDER SHEET

IN THE HIGH COURT OF SINDH,

(]IRCUIT COURT, HYDERABAD

Cr. Appeal No.D-17 of2018 Cr. Appeal No.D-18 of 2018 Cr. Appeal No.D-23 ot 2018

DATE oRDER WrTH STcNATURE OF JUDGE(S)

For regular hearing

t,

Mr. Behzad Ali Umrani, advocate for the appellant in Cr.

Mr, Masood Rasool Babar, advocate for the appellant in Cr. Appeal No.D-18 of2018.

Mr. Ghulamullah Chang, advocate for appellant in Cf Appeal No.D-23 of 2018.

Parties :advocates' have been heard. They have conclqded their arguments. For the reasons to be recorded latef on, these, Appellants present on bail

sureties stand discharged.

JUDGE

I

l