HAROON RASHEED Versus State
MUHAMMAD IQBAL MAHAR, J.--- Appellant-accused Haroon Rasheed was booked in Crime No.01/2019 of Excise Police Kotri for offence punishable under section 9(c), Control of Narcotic Substances Act, 1997.
2. Briefly, the facts of the prosecution case are that on 06.01.2019 complainant Aijaz Ali Khoso, Excise Inspector, along with his subordinate staff left P.S Excise and Narcotic Circle, Kotri, vide Roznamcha Entry No.16 on spy information and reached at Kotri railway crossing (Phattak) Kotri-Thatta Road, where they saw a Cultus Car coming from Thatta side. The complainant party stopped the said car and on checking, they recovered a parashoot bag lying under front seat of the car, which was opened and four packets of opium were found in it. The opium was weighed, it became 05 Kg. On inquiry, the driver of the car disclosed his name as Haroon Rasheed (present appellant-accused). The complainant also recovered CNIC, registration book of the car bearing No.ADX-195 and cash of Rs.5350/- and prepared memo of arrest and recovery in presence of mashirs. Thereafter, the complainant party brought the appellant-accused and case property at P.S and lodged the FIR on behalf of the State.
3. After usual investigation, the complainant submitted final report of the case before the learned trial Court. The learned trial Court framed charge against the appellant-accused, to which he pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case, examined complainant, Excise Inspector Aijaz Ali Khoso at Ex-04, who produced departure entry, mashirnama of arrest and recovery, roznamcha entry of Register-19, FIR and report of chemical examiner at Ex-4/A to 4/E respectively, P.W-2, Zulfiqar Ali Channa at Ex-5 and then learned D.P.P closed the prosecution side vide statement at Ex-6. Thereafter learned trial Court recorded statement of the appellant-accused as required under section 342, Cr.P.C. at Ex-7, wherein he denied the prosecution case and claimed his innocence, however, neither he examined himself on oath nor any witness in his defence.
5. The learned Special Judge on evaluating the prosecution evidence found the appellant-accused guilty of the offence and convicted him for offence under section 9(c) of Control of Substances Act, 1997 and sentenced him to suffer R.I for seven years and to pay fine of Rs.11,000/- and in case of default of payment of fine to suffer S.I for six months more, however, benefit of section 382-B, Cr.P.C. has been extended to him vide judgment dated 05.08.2019. The appellant-accused being aggrieved by the said judgment has impugned the same before this Court by way of instant appeal.
6. Learned counsel for the appellant-accused contended that the impugned judgment passed by learned trial Court is against the law and facts of the case; that the complainant has proceeded ' towards the place of incident on advance information but he has failed to associate any private witness in recovery proceedings; that learned trial Court has not considered the fact that one of the witnesses, namely E.C. Zulficiar Ali Channa has been declared hostile by learned D.P.P; that as per prosecution case, the property was sent to Laboratory through E.C. Asad Samoon but he has not been examined by the prosecution to prove safe transmission of the property to Laboratory; that there are many material contradictions in the evidence of prosecution witnesses which have created serious doubt in the prosecution case, which is to be resolved in favour of the appellant-accused. By contending so, he prayed for acquittal of the appellant-accused. In support of his arguments, learned counsel for the appellant-accused relied upon case Ikramullah v. The State (2015 SCMR 1002), Khair-ul-Bashar v. The State (2019 SCMR 930) and Muhammad Aslam v. The State (2011 SCMR 820).
7. Learned Deputy Prosecutor General has half heartedly supported the impugned judgment passed by learned trial Court.
8. We have considered the submissions made by learned counsel for the appellant-accused, learned Deputy Prosecutor General for the State and have perused the material available on record. As per prosecution case, the complainant party proceeded towards the place of incident on advance information but no private person has been joined in recovery proceedings, which is a clear violation of section 103, Cr.P.C. No doubt application of section 103, Cr.P.C. has been excluded under Section 25 of Control of Narcotic Substances Act, 1997, yet necessity of employing private person as mashir cannot be overlooked for the reason that the place of incident was a busy place and people were present and it was a day time. In case of Muhammad Aslam v. The State (supra) the honourable Supreme Court has observed as under:-
"It is significant to note that as per prosecution's own case, this incident had occurred in a busy area (public place) of town where number of private persons were available, but no efforts were made by the Investigating Officer of the crime to arrange any witness of the locality, who might have seen the appellant in any manner linked with the ten sacks of narcotics lying near the road in open space."
9. The prosecution examined only two witnesses, i.e. complainant Inspector Aijaz Ali and E.C. Zulfiqar Ali but did not produce E.C. Asad Samoon who delivered the opium to the office of Chemical Examiner to prove safe transmission of the case property. The evidence of complainant is not corroborated by E.C. Zulfiqar Ali as he has been declared hostile by learned D.P.P with regard to seal of case property, his signature on mashirnama and recovery of mobile phone and co-mashir has not been examined before learned trial Court. In case of Ikramullah v. The State (supra), honourable Supreme Court has observed that;
"5. In the case in hand not only the report submitted by the Chemical Examiner was legally laconic 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. It is not disputed that the investigating officer appearing before the learned trial court had failed to even to mention the name of the police official who had 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 custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this 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 Examiner without the same being tampered with or replaced while in transit."
10. Furthermore, there is contradiction in weight of opium. As per prosecution case the opium was weighed at the spot in electronic scale, it became 5 Kg, it was sealed and sent to Laboratory but chemical report at Ex.4-E reveals the net weight of opium 04.920 Kg, this is a question mark upon safe transmission of opium to the Laboratory. More so, neither the appellant-accused is previous convict nor he is involved in any case of similar nature.
11. We have also examined the evidence of prosecution witnesses and have found material contradictions in their evidence which have created doubt and the same cannot be ignored while deciding instant case.
12. For what has been discussed above, we are of the considered view that the prosecution has failed to prove its case against the appellant-accused beyond reasonable doubt and it is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, benefit of the same must be extended to the accused not as a grace or concession. In case of Muhammad Mansha Khan v. The State (2018 SCMR 772).
"4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to be benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Mohammad Akram v, The State 2009 SCMR 2$0) and Mohammad Zaman v. The State (2014 SCMR 749)."
13. In view of above and while relying upon the precedents of the honourable Apex Court, instant appeal is allowed and impugned judgment dated 05.08.2019 passed by learned trial Court, is set aside and the appellant-accused is acquitted of the charge. He is confined in jail, he is directed to be released forthwith if not required in any other custody case.
JK/H-31/Sindh Appeal allowed.