STATE/ANTINARCOTICS FORCE through Deputy Director (Law) vs ALLAH BUX

ORDER

1. ' MUHAMMAD ATHAR SAEED, J.---This Criminal Acquittal Appeal has been filed against the Judgment of the learned Special Judge (C.N.S.) Sukkur dated 7-3-2007 in Special Case No,2 of 2002 relating to Crime No, 1 of 2002, P.S. ANF Sukkur for offence under section 9(c) of C.N.S. Act.

2. ' After hearing Mr. Zulfiqar Ali Sangi the Special Public Prosecutor ANF for the appellant and Haji Shafi Muhammad learned Standing Counsel and Mr. Yaseen Khan Advocate for the respondents.

3. We had vide our judgment dated 31-3-2010 dismissed the appeal. We are now detailing the reasons for such dismissal.

4. ' We had heard the above learned counsel.

5. ' Mr. Zulfiqar Ali Sangi submitted that the judgment passed acquitting the respondent has been passed on misreading of the evidence and allegedly on the basis of contradictions in the deposition of the two material witnesses. He submitted that the contradictions pointed out by the learned Judge were just minor contradictions and it has been proved elusively that the respondent had been arrested red-handed while carrying huge quantity of narcotics. He submitted that the learned Judge has also been impressed by the fact that the sample had been sent to the chemical examiner after seven days and submitted that the Courts have held that even 14 days' delay is not fatal. In this connection he relied on a judgment reported" as 2000 Cr.LJ 976(sic). In support of his contention that the contradictions were minor and on this basis the prosecution's evidence cannot be discarded' he relied on the following Judgments:-

(1) PLD 2000 SC 91(sic).

(2) 2007 PCr.LJ 1520 ' He further submitted that there was no question regarding tampering of the seal which is necessary to prove that the sample sent for chemical analysis, was not the genuine sample. He read out the deposition of the complainant and the Mashir and pointed out that there was no contradictions regarding the basic facts and the minor contradictions were immaterial for deciding the case. He therefore, prayed that the appeal may be allowed and the Judgment/ order be set aside and the respondents may be ordered to be rearrested.

6. ' The learned Standing counsel adopted the arguments of the learned counsel for the appellant.

7. ' The learned counsel for the respondent strongly opposed the arguments of the learned counsel for the appellant and supported the impugned order which according to him was passed in accordance with law. He submitted that initially before the registration of the F.I.R. The appellant had raided the house of the respondent and took away Rs,200,000 which he had withdrawn from his bank for the purpose of marriage of his sister on 2-2-2000 and on the same day his brother Abdul Sattar sent telegrams to the higher authorities against the high-handedness of ANF Police and, therefore, in order to save themselves they involved the respondent in the false case. He had also produced the certificate issued by Manager NBP Gharhiyasin and certified true copy of the said telegram. On the same day they had also taken away the present respondent and on next day involved him in the incident. He submitted that no documents were produced and the contradictions were very major contradictions: He also submitted that although it was a very busy place where the incident was shown to have taken place but no effort was made as admitted by the complainant to associate any private Mashir with the incident. Although he conceded that the Courts have held that the police Mashir is as good witness as a public Mashir but submitted that the Courts have always been advising the police authorities to first try and associate private Mashir and only on the failure of police to associate any private Mashir a police Mashir be associated. The learned counsel also submitted that the sample was sent seven days late for chemical analysis and such delay is fatal to the case. In this connection he relied on a judgment reported as 1996 SCMR 1441. He also relied on the following cases where the principles in acquittal appeals have been highlighted.

(1) Nazeer Sher v. The State reporting in PLD 2009 Karachi 191.

(2) , Zahida Saleem v. M. Naseem reporting in PLD 2006 SC 427.

8. ' We have examined the case in the light of the arguments of the learned counsel and perused the judgments relied on by them and have also perused the impugned judgment.

9. ' The point on the basis of which the learned Judge had acquitted the appellant can be detailed below:--

(1) There were major contradictions between the deposition of the complainant and Mashir.

10. According to the learned Judger there were contradictions between two prosecution witnesses as both of them contradicted each other on whether the spy accompanied them or left after giving information. There were also differences on the point as to whether any private person was requested to become Mashir or not and whether the respondent was arrested without any resistance or was apprehended after he tried to escape. According to the learned Judge these are the major contradictions.

(2) The learned Judge was also impressed by the fact that since the place of incident was situated in a thickly populated area, therefore, attempt should have been made to associate a private person but the complainant has conceded that he did not try to associate any private Mashirs.

(3) There was delay of seven days in sending the samples from Chemical Examiner.

(4) The document s including withdrawal of amount of more than two lac on 2nd February, 2002 and sending of a telegram to the high authorities from 2nd February by the brother of the respondent on 2nd February and also ,his allegation that they also carried away the respondent on 2nd February i,e, one day before the incident also leads credence to the claim of the respondent that he had been framed.

11. ' On these bases the learned Special Judge ANF held that prosecution has not been able to prove its case beyond doubt and acquitted the respondent.

12. ' The learned Special Judge has given cogent reasons in support of his above assertion.

13. We have carefully perused the reasons given by the learned Judge and we find ourselves in agreement with the reason advanced by him that the prosecution has not been able to prove its case. It is now a settled law that even if a solitary doubt is created as to the guilt of the accused then he cannot be convicted and we are of the view that the learned Special Judge ANF has rightly observed that the prosecution case is full of doubts. We are therefore, of the considered opinion that the order of the learned Special Judge ANF is unexceptionable and no interference is called for by this Court.

14. ' The above are the reasons in support of our short order dated 3-3-2010 whereby after hearing the learned counsel for the parties we had dismissed this appeal.