HABIBULLAH Versus State

MUHAMMAD MOOSA K. LEGHARI, J.--- This appeal is directed against the judgment, dated 8-8-2006, passed by Special Judge, C.N.S., Nawabshah, whereby the appellant was convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer rigorous imprisonment for seven years plus a fine of Rs.30,000. In case of default in payment whereof the appellant was to undergo rigorous imprisonment for five months more. However, benefit as admissible under section 382-B, Cr.P.C. was extended to the appellant.

2. Prosecution story in nutshell as per contents of F.I.R. registered in Crime No.3 of 2001 at Excise Police Nawabshah by complainant Excise Inspector Syed Asghar Ali Shah on 1-11-2001, is that the appellant was arrested by the complainant along with his subordinate staff on the said date and secured 1500 grams of Charas from his possession, besides a sum of Rs.200, in presence of Mashirs ED Nazar Muhammad Mangrio and EC Ghulam Shabbir. According to F.I.R. 250 grains of Charas was separated and sealed for Chemical Examination, while 1250 grains of charas were sealed separately. Such mashirnama was prepared at the spot.

3. Accordingly the case was registered, investigated and sent up for trial. The appellant pleaded not guilty to charge and the trial commenced.

4. At the trial prosecution examined the complainant/Excise Inspector Syed Asghar Ali Shah, and Excise Constable Ghulam Shabir Lashari. Mashirnama of arrest and recovery of charas and Chemical Examiner's report were produced in support of prosecution case.

5. The appellant in his statement recorded under section 342, Cr.P.C. denied all the allegations. He pleaded innocence, alleging to have been falsely roped in the case due to enmity with Daur police. He also produced certified true copy of a direct complaint filed by him against A.S.-I. Maqsood Ahmed Channa and other police officials of Police Station Daur in the Court of Special Judge, Anti-Corruption Sukkur. However, the appellant did not choose to examine any witness in his defence.

6. On conclusion of the trial the trial Court found the accused/appellant guilty of the charges and convicted him in the terms as stated above.

7. It is contended by learned counsel for the appellant that the prosecution evidence is full of contradictions, inasmuch as, there is a noticeable difference in number of pieces of charas. Excise Constable Abdul Rasheed who conducted the search of the appellant, weighed the charas, sealed it and prepared such mashirnama was not examined by the prosecution. It is contended that the case against the appellant is doubtful, as prosecution has failed to bring home the charges of guilt.

8. Conversely, learned Assistant A.G. supported the conviction and submitted that minor contradictions do occur in the prosecution evidence by lapse of time, which are to be ignored.

9. The contentions put forward have been considered and the material placed on the record has been perused.

10. It is deposed by the complainant P.W. Syed Asghar Ali Shah in his examination-in-chief that he deputed EC Nazar Muhammad and EC Ghulam Shabbir as mashirs and he himself conducted personal search of the accused. On search he secured one plastic bag from the left side fold of shalwar of the accused and after opening the same found one piece of charas lying in it. It was weighed and found to be 1500 grams, out of which, he has separated 250 grams and sealed it as a sample while remaining charas was sealed separately. In his cross-examination he contradicted the version given in examination-in-chief and deposed that the search of the accused was conducted by EC Abdul Rasheed. In his cross-examination he re-asserted that the charas was only one piece. He further deposed that EC Abdul Rasheed has weighed the charas. The charas was sealed by EC Abdul Rasheed and the mashirnama was also written by Abdul Rasheed on his dictation. The accused was also handcuffed by EC Abdul Rasheed.

11. Contrary to above deposition P.W. Ghulam Shabbir stated in his examination in-chief that EC Nazar Muhammad conducted the personal search of the accused and secured plastic bag from the fold of his shalwar. Contradicting P.W. this witness deposed in his examination-in -chief that the charas was in two pieces. One piece was weighed which came to be 1000 grams while the other piece weighed 500 grams. He further stated in his examination-in-chief that mashirnama of arrest and recovery was prepared by EC Syed Asghar Ai Shah in his presence and in presence of EC Nazar Muhammad. In his cross-examination he stated that first of all EC Azizullah captured the accused while he handcuffed the accused. Contrary to P.W. 1 viz. the complainant, this witness has stated in his cross-examination that Excise Inspector himself has conducted the personal search of the accused and further stated that he does not remember as to who had weighed the charas. As against the version of complainant this witness has deposed that EC Nazar Muhammad has sealed the property.

12. The above noted contradictions in the prosecution evidence being very material and major in nature, could neither be reconciled nor brushed aside. More particularly when the prosecution witnesses are literate, experienced professional police officials quite oftenly appearing as P.Ws in the Court, thus, quite conversant as against the common folk, rarely appearing as witness in the Courts of law. As such there is little room for avoiding the inconsistencies and for extending allowance for the inaccuracies in their evidence.

13. The perusal of Chemical Examiner's report reveals that the sample received there was in two pieces. It was deficient by 6 grams, as the net weight was 244 grams. As evident from the diary of 20-2-2002, the case property viz. Charas was weighed in the open Court on the said date and the net weight of the charas came to be 1-235 grams while with wrapper it was 1257 grams. This shows a deficiency of 15 grams of charas.

14. According to the Excise Police they left police station at 2-00 p.m. vide Entry No.5, but such entry was not produced. The number of the police van in which the police party left the police station was neither mentioned in the F.I.R. nor could be stated in the Court.

15. Apart from above, E.C. Abdul Rashid who according to the complainant weighed the charas, sealed it on the spot and prepared the mashirnama of recovery and arrest was not tendered in evidence, though he was a key witness.

16. The case of the appellant throughout has been that he was falsely implicated in the case due to enmity with Daur Police, as he has filed a case in the Anti-Corruption Court against certain police officials of Daur Police Station. In his statement under section 342, Cr.P.C. also the appellant has made a similar allegation. While recording his statement he also placed on record a copy of the complaint. In the circumstances, the possibility of false implication could not be outrightly ruled out.

17. It is a cardinal principle of law that finding of guilt against accused must rest surely in the evidence of unimpeachable character, thus all the factors and circumstances leading to doubt are to be resolved in favour of the accused and could not be withheld in favour of the prosecution.

18. Indeed the above noted contradictions, infirmities and discrepancies lead to an irresistible conclusion that the case against the appellant is doubtful as prosecution has failed to bring home the guilt of the accused to render him liable to conviction, under the Control of Narcotic Substances Act, 1997. Resultantly the judgment is liable to be set aside.

19. For the above reasons, the appeal is allowed. The conviction awarded to the appellant is set aside and he is acquitted. The appellant shall be released forthwith if not required in any other custody case.

These are the detailed reasons in support of the short order passed on 17-1-2007.

N.H.Q./H-4/K Appeal accepted.