AIJAZ ALI Versus STATE

FAIZ MUHAMMAD QURESHI, J. ---Appellant has called in question the impugned judgment, dated 2-12-1999, passed by the Special Judge, Control of Narcotic Substances, Dadu in Sessions Case No.43 of 1999, Crime No.2 of 1998, registered with Railway Police Station Dadu under section 9(b) of Control of Narcotic Substances Act, 1997, whereby he has been convicted and sentenced to suffer R.I for 7 years and to pay fine of Rs.10,000 in case of default accused to suffer R.I. for six months more. Hence this appeal.

Brief facts of the prosecution case are that on 6-2-1998 complainant S.I.P. Mukhtaiar Ali alongwith A.S.-I. Muhammad Ali, P.C. Iqbal Hussain and P.C. Abdul Ghafoor were on Platform Railway Station Dadu on duty, at that time 124-Down Shahbaz Express reached and they saw one person, concealing himself after seeing the police party. Complainant apprehended that person, who disclosed his name as Eijaz Ali son of Haji Muhammad Abbasi, complainant suspected the accused and secured the Charas from the pocket of his jacket. S.I.P. then prepared the Mashirnama of arrest of accused and recovery of Charas on the spot in presence of Mashirs, P.C. Iqbal Hussain and P.C. Abdul Ghafoor and obtained their signatures. Complainant thereafter took the accused and property to Railway Police Station and weighed the Charas and weight of the same was half kilo. Complainant then prepared such Mashirnama in presence of Mashirs P.C. Iqbal Hussain and P.C. Abdul Ghafoor and obtained their signatures and then lodged the F.I.R. After usual investigation the accused was challaned before the trial Court for trial.

3. Charge was framed against the accused as Exh.2 and plea recorded as Exh.3, in which accused pleaded not guilty and claimed to be tried.

4. During the trial the prosecution examined S.I.P. Mukhtiar Ali Jatoi as Exh.5 and the recovery Mashir Iqbal Hussain as Exh.6. During the evidence complainant produced the Mashirnama of recovery, arrest of the accused and weight of the charas so also the F.I.R. as Exhs.5-A to 5-C and so also the report of Chemical Examiner as Exh.5-D. Learned District Attorney closed the evidence side of prosecution vide Exh.7.

5. Statement of the accused was recorded under section 342, Cr.P.C. as Exh.8 in which he denied the case of the prosecution.

6. The learned trial Court formulated the points for determination and after going through the arguments of the learned counsel for the parties and going through the evidence, adduced by the prosecution, passed the judgment in terms as above.

7. We have heard the learned counsel for the parties and have gone through the evidence of prosecution witnesses and material available on record.

8. Mr. Abdul Rasool Abbasi learned counsel for the appellant has argued that half kilo Charas has been recovered from the possession of the accused at Railway Station Dadu (platform) and the time of recovery is 3-55 p.m. and Mashirs have been cited lqbal Hussain P.C. of Railway Police and Abdul Ghafoor P.C. of Railway Police Dadu and according to him no independent Mashir has been associated on the factum of recovery. He has further argued that the substance has been sent to the Chemical Analyser for examination and report on 12-2-1998 and the same has been received by the Expert on 6-3-1998 and according to learned counsel for the appellant there is one month's delay on the part of prosecution in respect of sending the substance to the Expert which goes unexplained. He has further argued that no entry number is mentioned and even such entry has not been produced by the prosecution before the trial Court. He finally argued that the appellant is innocent and has been falsely implicated in the case.

9. On the other hand Mr. Muhammad Azeem Panhwar, Advocate for the A.A.-G. for State has argued that the Charas recovered from the possession of the accused was not sealed on the spot, but the same has been sealed at Police Station and the substance received by Chemical Expert on 6-3-1998 and there is a delay of one month which goes unexplained. He further submitted that the entry has not been produced by the prosecution before the trial Court as the entire case of the prosecution depends on such entry which leads to inference that the police party have not left the Police Station for patrolling and checking purpose at the platform of Railway Station and non-production of such entry cuts `the root of the prosecution. He has placed reliance on 1998 PCr.LJ 1368, 1997 MLD 1632 and 1996 PCr.LJ 1410 and has not supported the impugned judgment.

10. We have heard the arguments of learned counsel for the parties and we have gone through the entire evidence and material available on record.

11. Admittedly, half kilo Charas has been recovered from the possession of the appellant at 15-55 hours on 6-2-1998 and the same has been sent to Chemical Examiner on 12-2-1998. We have carefully examined the report of the Chemical Expert which reveals that the office of the Expert has received aforementioned case property on 6-3-1998 and we are fortified that there is one month's daily which goes against the prosecution. We are also fortified that the entire case of prosecution hinges on the entry by virtue of which the police party is said to have left the police station and gone to the platform, but the same entry has not been produced by the prosecution before the trial Court which is a genuine document and non-?production of the said document vitiates-the entire trial. We have also examined very carefully that the Charas recovered from the appellant has not been sealed at the spot but the same has been sealed at the Police Station which is an illegality under the law and adverse inference can be drawn against the prosecution and the benefit of doubt goes to the accused. In this regard we are fortified by the aforementioned decision cited by the learned counsel for the A.A. -G. for the State, wherein it has been held by this Court that the property not sealed on the spot, non?production of entry, delay in seeding the substance to the Expert vitiated the trial and the benefit of doubt has been accorded by this Court to the accused. Even the prosecution witnesses have not deposed before the trial Court that they produced the entry before the trial Court.

12. Upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. We give benefit of doubt to the appellant. Conviction and sentence are set aside. In result, the appeal is allowed. The appellant shall be released forthwith if not required in any other case.

Above are the reasons of our short order, dated 15-3-2001.

N.H.Q./A-219/K ??????????????????????????????????????????????????????????????????????????????? Appeal allowed.