Javeed (Appellant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDH,

CIRCUIT COURT HYDERABAD

Before N1 r. Justice Abdul Maalik Gaddi iv1 r. Justice Mohammad Karim Khan Agha

Cr. Appeal No. D-1 7 of 2018

I Javed

Versus

The State

L Cr. Appeal No D-1B o,f 2018

Khadim Hussain

Versus.

The State

Cr. Appeal No.D-23 of 2018

Ghulam Sarwar

Versus.

l. The State

A ppellant Javed lpresent Through Mr. Behzad Ali Umrani, Advocate on bail) in Cr. Appeal No D- 17 of2018 A ppellant Khadinr Hussain Through fi,4r. Masood Rasool Ba bar (present on bail) Cr in Memon, Advocate U- A eal No.D-18 of 2018 A ppellant Ghul;rrn Sarwar Through Mr Ghulamullah Chang, (presenl on bail) in Cr Advocate A eal No.D-23 of 2018 Respondent : The State Th rough [Vlr. Shairzado Saleem Nahyoon, De Lrt Prosecutor General Date of hearin a Lrd ment 04.09.2 0 1 8

JUDGMENT

MOHAMMA DKA RIM KHAN AGHA J.- Since all the aforementioned criminal appeals have arisen out of one and same judgment dated 07.02.2018, passed by the learned lllrd Additional Sessions Judge /

a t61 Special Judge, Control of Narcotic Substances Act, Hyderabad in Special Case No.147 of 20.16 (Crime No.74 of 2016) of Police Station Sakhipir, Hyderabad, under section 9(c) Control of Narcotic Substances Acl, 1gg7 (CNSA), therefore, we propose to decide the same by this common judg ment.

2 Through impugned judgment, the learned trial Court convicted lhe appellants named above (Javed, Khadim Hussain and Ghulam Sarwar) u/s a 9(c) CNSA and sentenced them to suffer Rl for 05 years and to pay the fine of Rs.20,0001 each. ln case of default in payment of fine they were ordered to suffer simple imprisonnrent for 01 month more (the impugned judgment). Benefit of Section 382-8 Cr.P.C. was also extended to the l: r accused.

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3.Brief facts of the prosecution case as disclosed in the FIR are that present accused were arresled on 05.12.20'16 from near Sattar Shah Graveyard, Sattar Shah Road, by a police party headed by SIP Dili Jan Rind alongwith his subordinate staff. lt is furlher 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 ktrm the vehicle of the accused persons. The charas recovered from each accused was weighed and found to be 05 kilogram, whereas the charas recovered from the vehicle l- was also weighed and found to be 25 kilograms. Out of the contraband items, recovered from each accused, 100 grams were separated, whereas from the contraband item secured from the vehicle, 01 kilogram charas was separated for sending the same to the chemical examiner for analysis and report. Thereafter, the accused, contraband itenrs and vehicle, as stated above, were secured ancl menro 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 by complainarrt SIP Dili Jan on behalf of the State under section 9(c) CNSA.

4.Dr-iring investigation, lnvestigating Officer recorded 161 Cr.P.C. statemenls of the PWs. Sample of the substance / charas was sent to the chemical exanriner through PC M. Yousuf and positive chemical report was received. On the conclusion of investigation challan was submitled against the accused. , /t//

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5.Trial court framed charge agarnst accused at Ex.5 u/s g(c) CNSA, to which, accused pleaded not guilly and claimed to be tried vide their respective pleas at Ex.6 to B. At the trial prosecution examined lnvestigatior.r Officer / SIP Dili Jarr Rincl at Ex.'l 2, who produced mashirnama of arrest and recovery, F.l.R., rJeparture and arrival enlries, entry of PS: Ilakhipir, copy of entry ot register No.19, order of SSp Hyderabad, letter of poltce to Chemical Examiner and Chemical Analyzer's report at Ex.12lA to Ex.12lG, respectively; P.W-2 PC Muhammad Zareef al

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Ex.13 and P.W-3 SHO lftikharAhmed at Ex.14 and thereafter, proseculion side was closed at Ex.15.

6.Statements of accused were recorded uls 342 Cr.P.C. at Ex.16 to

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18.The accused in their said statements denied the prosecution allegations and claimed their false implication in this case. However, neither they have examrned themselves on oath nor led any defence evidence.

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

B. Learned lrral 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 contended that the prosecution case is highly doubtful; the place of incident was located at \l UJ busy spot, yet, nobody from the public was loined to attest the arrest and recovery; there are nraterial contradictions in the prosecution evidence, hence it cannot be safely relied upon; that there was delay in sending the case property to the Chemical Examrner and tampering with the case property durtng such period could nol be ruled out. lt is argued that alleged recovery was made on 05.12.2016, whereas the sample was sent and received in the office of Chemical Analyzer on 09.'12.20'16 with an unexplained delay of 04 days and no evidence has been brought on the record that charas was in the safe custody during that period and in fact PW 1 Dili Jan admitted in cross examination that he managed the chemical report. Lastly the appellants submitted that the narcotics had been foisted on them and that they had been falsely implicated in the case since there t 1^

.l t6T was enmity between them and the porice 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, lhe learned Deputy prosecutor General, very fairly conceded to the contentions of learned counsel for the I appellanls and did not support the impugned judgment.

'I 1. We have heard the parties, considered the evidence on record and the relevant case law.

'12. We have come to the conclusion that the prosecution has failed to prove its case agarnst the appellant beyond a reasonable doubt 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 mashit. This aspect, although not fatal to the prosecutions case, was important because one of the appellants had raised the defense that he had been falsely inrplicated in this case due to enmity, for which hq has relied on a constitution petrtion 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 complainanl was also the lO in the case which though not unlawful creates a further measure of suspicion Iy when the appellants have clarmed false implication on account of enmity; 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 samples to be sent for chemical analysis within 3 days of recovery although this delay is not fatal as such rules are directory in nature and not mandatory such non compliance arouses further suspicior and that the prosecutton has accepted that the chemical reports were managed by one of the PW's during his cross examination (although we do not give lhis so called admission much weight as the word managed most probably related to the managerial function of the lO in arranging for the narcotic being sent for chemical examination rather than him admitting to manipulating the chemical reporl)

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13.lv{ost significanfly, we find that there i:; very rilue evidence on record to show that the charas was kept in safe custody from the time of its recovery untir it was sert to the chemical 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 this respect refers lo the case of Mutrammad Sarfraz V The State (2017 SCMR 1g74) where there was no negative evidence of non safe custody and I 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 tkramullah & others v/s. the State (2015 SCMR 1002) which was by a three member bench does not seem to have been brought to its attention. ln lkramullah's case (Supra) the emphasrs was on the positive proof of safe custody of the narcouc by the prosecution from the time of its recovery until the time it went for chemicar examrnation which wourd rule out any possibility of the narcotic being tampered with. since tkramurah's case (Supra) was decided by a three member bench of the Hon,ble Supreme Court and was not brought to the attention of the Hon,bler Supreme Court in Muhammad Sarfraz,s case (Supra) we are inclined to follow lkramullah's case (Supra) ln respect of safe custody of the narcotic.

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14.Thus, in our view in this case since there is a possibility that the narcotic during the time it was recovered from the appellants and was sent for chemical analysis may not have beerr kept in safe custody and may have been tarnpered with we find that even a positive chemicar report is of \l\{i no assistance to the prosecution; the significance of keeping safe custody of the narcotic in a case under the crrrSA has been emphasized in lkramullah's case (Supra), the relevant portion of which is reproduced hereunder:-

"5. ln the case in hand not only the report submifted by the Chemical Examiner was legally iaconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. lt is not disputed that the investigiting officer appearing before the learned trial court hadhalel to even to mention the name of the poiice officiat who naJ 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 about safe

l-ll s-lmptes entrusted to him for being in !lr.

:ustoqy .o.f deposited the office of the Chemical Examiner. ln thii 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 safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examinei without the same being tampered with or replaced while in transit." (bold added)

A 15. under these circumstances and for the other reasons menlioned above we are of the considered view that the prosecution has not proved its case against the appeilants beyond a reasonabre doubt. lt is welr setiled law that the br:nefit of doubt must go to lhe accused by way of right as opposed to corrcession. ln this respect reliarrce is placed on the case of Tariq Pervez V/s. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has observed as follows:-

"lt is settled law that it is not necessary that there should be many circuntstances 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 enti ed to the benefit not as a matter of grace and concession but as a matter of right.',

16.For the above stated reasons, we hold that the prosecution,has failed to prove its case against the appellants, therefore, while extending the benefit of doubt, the appeals are allowed. The convictions and 't- sentences recorded by the trial court ilrrough the impugned judgment are set astde and the appellants are acquitted. The Appellants are on bail and as such their bail bonds are cancelled and sureties are discharged. These are the reasons for our short order which was announced in open court today which reads as under:

"Partir:'s advocates have been heard. They have concluded their argumr-.nts. For the reasons to be recorded later on, these criminal appeals are allowed. lmpugned judgment stands set aside. Appellants present on bail. Their bail bonds are cancelled and sureties stand discharged.''

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JUDGE

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JUD E "/

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