IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
MR. JUSTICE IRFAN SAADAT KHAN J.
MR. JUSTICE AFTAB AHMED GORAR J.
Cr. Jail Appeal No.D-188 of 2006
Appellant Altaf Hussain S/o Mushtaque Ahmed through Mr. Ishrat Ali Lohar Advocate
Date of hearing 28.02.2013.
Date of decision 28.02.2013.
J U D G M E N T
AFTAB AHMED GORAR J: The appellant was convicted u/s 9-B of Control of Narcotic Substances Act, 1997 and sentenced to suffer R.I. for 02 years with fine of Rs.10,000/-, in default whereof, to suffer further R.I for 15 days vide Judgment dated 12.09.2006 passed by learned Special Judge C.N.S Badin. Benefit of section 382-B Cr.P.C was also extended to the appellant.
2. The prosecution case in a small compass is that on 13.03.2004 at 1800 hours, complainant party on spy information, reached at main Matli Hyderabad Road near Boys College Matli, arrested appellant Altaf Hussain and recovered 120 grams of charas in shape of small and large pieces, in presence of mashirs. Out of recovered charas, 10 grams were separated as sample for sending to the Chemical Examiner. Complainant brought the appellant and property at P.S. and lodged the report.
3. Formal charge against the appellant was framed u/s 9-B of C.N.S Act, 1997 in which he pleaded not guilty and claimed his trial.
4. At the trial, the prosecution examined P.W.1 complainant SHO Raj Kumar at Ex.4. He produced mashirnama of arrest and recovery, FIR, Chemical report at Ex.5,6 and 7 respectively. P.W.2 mashir P.C Abdul Aziz was examined at Ex.9. He produced roznamcha entry at Ex.10 and then prosecution closed its side.
5. Statement of the appellant was recorded u/s 342 Cr.P.C, in which he denied the material put forth to him in shape of questions and claimed his innocence. He however, neither examined himself on oath nor produced any defence evidence.
6. Learned counsel for the appellant argued that the appellant is innocent and did not commit the alleged offence. He further contended that the prosecution has failed to prove the charge against the appellant but the learned trial court erroneously convicted him. He added that out of alleged recovered 22 pieces of charas, only two pieces were sent for chemical examination, therefore, it cannot be said that the remaining pieces were charas. Learned counsel argued that there is a delay of 11 days in sending the sample to the Chemical Examiner and there is no explanation as to whether during such period, the sample was kept in safe custody or not. Learned counsel submitted that alleged place of incident is a thickly populated area and no private person was associated by the complainant party inspite of information in advance, which creates doubt in the prosecution case. Learned counsel relied upon the cases of Muhammad Hashim Vs. The State (PLD 2004 SC 856), and Abdul Wahid and another Vs. The State (2011 MLD 1208).
7. On the other hand, learned Deputy Prosecutor General supported the impugned Judgment and contended that the prosecution has proved its case beyond any shadow of doubt. He further argued that it is not necessary to send the sample within 72 years and even no question of tampering with the samples was put to the P.Ws. He contended that appellant has failed to prove any enmity or ill will on the part of the complainant and P.W for his false implication. He further contended that this is an offence against the society and the prosecution has produced strong and corroborative evidence against the appellant, therefore, his conviction does not call for any inference.
8. We have heard learned counsel for the parties and examined the record and the decisions relied upon, carefully.
9. It was the case of the prosecution that the appellant was found in possession of 120 grams of charas. The prosecution has examined two witnesses i.e. Complainant SHO Raj Kumar and mashir P.C Abdul Aziz. The complainant in his evidence has deposed that on the day of incident, he alongwith police officials was on patrolling when at Phulakara chowk, he received information that appellant was selling charas near Govt. Boys Degree College Matli and on such information he rushed to the place of incident and arrested him, who was identified to be the appellant. He further deposed that he recovered a plastic bag from the possession of the appellant containing small and large pieces of charas, weighing 120 grams.
10. We have noted that the envelope containing the case property viz charas was opened before the trial court in presence of the learned counsel for the parties and was weighed which became 35 grams only instead of 110 grams as alleged to have been recovered from the possession of the appellant. This fact has made the recovery of 120 grams doubtful. The complainant admitted in his cross-examination that he did not take sample from all the pieces of charas but picked out only two pieces for sending to the Chemical Examiner. He further stated in his cross-examination that he did not ask any person to witness the recovery while the mashir stated that SHO asked some persons but they refused. The complainant further stated that he did not send any fake customer to the accused to ascertain sale of alleged charas by him, while mashir stated that SHO asked some private persons to go to the accused as fake customer but they refused. The complainant in his cross-examination also stated that the mashirnama was prepared at the designated spot by standing at the site whereas mashir stated that mashirnama was prepared in the vehicle.
11. We have examined the Chemical Examiner’s report, which reflects that the sample was sent to them on 24.04.2004, it was received in the office on 26.04.2004 and the report was prepared and signed on 30.07.2004 and finally dispatched on 09.09.2004. There is no explanation available on record as to whether the sample of charas remained in safe custody for 11 days or not. It is also not explained as to why the sample remained with the Chemical Examiner from 26.04.2004 to 30.07.2004 when the report was prepared and signed by the chemical examiner. It is also noted that the said report was dispatched on 09.09.2004 i.e. after one month and 10 days of its preparation.
12. In the case of Qayum Vs. The State (2005 P Cr. L J 2034)), there was six days delay in sending the samples, 22 days occurred in checking the same and 15 days consumed in receiving back the same and such long delay was not explained. The bench observed that “such delays make case against the accused doubtful to the extent that it does not prove the case of the prosecution that the samples of contraband charas were safe for six days in police station and for 22 days in Laboratory before report and therefore, the accused was acquitted”. In the present case also there is no explanation regarding delay in sending the sample, checking, preparation of report and dispatching of the report.
In the case of Muhammad Hashim Vs. The State (supra), it was held that only 4 grams of charas was taken as sample out of total 288 rods and nothing was available on record to show whether the sample was taken out from each rod to ascertain that 288 rods were that of charas or some other chemical, having resemblance with the colour of Charas like oil cake etc. Stringent sentences having been provided under Control of Narcotic Substances Act, 1997, if offence charged against the accused was proved, therefore, the relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, were to be followed strictly in the interest of justice; otherwise in such like cases it would be impossible to hold that total commodity recovered from the possession of accused was charas. Presumption in given circumstances was that the sample was taken out from only one rod, so far as the remaining rods were concerned, in absence of any sample taken out from them, it would not be possible to hold that they were the rods of charas or otherwise. Honourable Supreme Court while taking into consideration such aspect of the case, held that for such reason, the case of the prosecution had become doubtful, as such, sentence awarded to the accused by the trial court and maintained by the High court was not sustainable. In the present case, it is an admitted position that sample was not taken from all the pieces of charas but only two pieces were sent to the Chemical Examiner, therefore, the prosecution case has become doubtful on this aspect alone. In the case of Abdul Wahid and another Vs. The State (supra), similar issue was discussed and it was observed that prosecution witnesses had failed to show that the samples were taken from each packet, therefore, charge in such case was altered.
13. In view of the contradictions and discrepancies discussed above, the case of the prosecution, in our view, has become doubtful as the prosecution failed to prove the charge against the appellant beyond shadow of doubt. Accordingly, we allow this appeal, set aside the impugned Judgment of the learned trial court and acquit the appellant. Since the appellant is already on bail, his bail bonds are cancelled and surety discharged.
14. The Cr. Appeal stands disposed of. Above are the reasons of our short order dated 28.02.2013.