NAWAB KHAN Versus State
MUHAMMAD IQBAL MAHAR, J.- --Appellant Nawab Khan was put on trial by learned Special Judge (N)/ Sessions Judge, Jamshoro on charge under section 9(b) Control of Narcotic Substances Act, 1997 and after finding him guilty sentenced him to suffer rigorous imprisonment for one year and to pay fine of Rs.5000/- (Rupees Five Thousand), in case of default in payment of fine to suffer S.I. for one year more, however, benefit of Section 382-B Cr.P.C. was extended to him.
2. Briefly, the facts of the prosecution case are that on 14.02.2017 complainant S.I., Muhammad Hassan Khonharo along with S.I., Muhammad Mashooque, A.S.I., Qurban Hussain, P.Cs. Yasir Ali and Muhammad Ahmed, Sep. Muhammad Ashraf, Sep. Muhammad Mohsin and spy informer left P.S. vide entry No.12 at 1700 hours on Government vehicle on advance information that an agent of drug peddler is coming from Karachi to Jamshoro for selling chars to the Students of Mehran, Sindh and LUMHS Universities. At 1740 hours they reached at pointed place and saw one person, having black hand bag in his right shoulder, coming from Bus Stop towards Rickshaw Stand. The complainant party arrested him. On inquiry, he disclosed his name as Nawab Khan. The bag was secured from his possession which was found containing 01-K.G chars in shape of small and big pieces. The complainant also secured cash of Rs.1500/-, copy of CNIC and cell phone of Nokia company from his right side pocket of the shirt and prepared memo of arrest and recovery. Thereafter, the complainant party brought the accused and property at P.S. and lodged the FIR on behalf of the State.
3. After necessary investigation, the charge sheet was filed in the Court. The learned trial Court framed charge against the appellant-accused, to which he pleaded not guilty and claimed his trial.
4. At trial, the prosecution examined P.W-1, S.I., Muhammad Hassan Khonharo at Ex-6, who produced departure and arrival entry, memo of arrest and recovery, FIR, chemical examiner's report, slip of Malkhana register at Ex-6-A to 6-F and P.W-2, Mashir A.S.I, Qurban Hussain Mastoi at Ex-7. Thereafter learned trial Court passed order and recorded the statement of appellant-accused under Section 342, Cr.P.C. at Ex-9, wherein he denied the prosecution case and claimed his innocence, he further stated that Latifabad Police demanded Bhatta from him for running wood business and on refusal, he has been falsely involved in this case. The appellant-accused neither examined himself on oath nor produced any witness in his defence.
5. Learned S.P.P, A.N.F moved an application for summoning the witnesses, namely, S.I., Masood Incharge Malkhana and H.C., Ghulam Muhammad who transmitted the parcel to the laboratory for examination, which was allowed and PW-3, H.C., Ghulam Muhammad was examined at Ex-10. Thereafter, prosecution side was closed by learned S.P.P. and fresh statement of appellant-accused under section 342, Cr.P.C. was recorded, wherein he also took the same plea and did not examine himself on oath nor produce any witness in his defence.
6. The learned trial Judge on considering the prosecution evidence found the appellant-accused guilty of the offence and convicted and sentenced him as mentioned in the earlier part of this judgment, hence, the appellant-accused has preferred this appeal with a prayer to set aside the impugned judgment.
7. Learned Counsel for the appellant-accused inter alia contended that the impugned judgment is against the law and facts of the case; that there is no tangible evidence on record to connect the appellant-accused with the commission of crime; that the trial Court has failed to appreciate the evidence on record in its true perspective and has passed impugned judgment in a mechanical manner without application of judicious mind; that no independent witness has been cited by the complainant despite of receiving spy information in advance; that the prosecution case hinges on the statements of A.N.F, personnel, who are highly interested witnesses and that there are many contradictions in the evidence of prosecution witnesses which have created doubt. By contending so, she prayed for acquittal of the appellant-accused. In support of her arguments, learned counsel for the appellant-accused relied upon case of Ikramullah and others v. The State (2015 SCMR 1002) and Shoaib Ali v. The State (2018 MLD 1835).
8. Conversely, learned Special Prosecutor, A.N.F., supported the impugned judgment passed by learned trial Court and submitted that keeping in view the material on record, learned trial Judge was fully justified to believe the prosecution evidence and pass the judgment of conviction. He also submitted that no doubt the recovery has been made in presence of A.N.F officials but there is nothing on record to show that they had any ill-will or motive against the appellant-accused to falsely implicate him in the case. By contending so, he prayed for dismissal of this appeal. He relied upon case of The State/ANF v. Muhammad Arshad (2017 SCMR 283).
9. We have heard learned Counsel for the appellant-accused, learned Special Prosecutor A.N.F. at length and have perused the material available on record carefully. It is the case of prosecution that on the day of incident, the complainant party proceeded towards the place of incident on advance information that the appellant-accused is coming from Karachi to sell chars to the students of Mehran, Sindh and LUMHS Universities and recovered meager quantity of chars but did not associate any private person in recovery proceedings, although the place of arrest and recovery was situated at Rickshaw Stand at Bus Stop. We are conscious of the fact that the officials of A.N.F. are good witnesses as compared to private witnesses in some cases but in context of the present case, the situation is bit different, as the alleged recovery has admittedly been effected from Rickshaw Stand and admittedly the private persons were available there, hence it was duty of the prosecution to atleast associate some private or independent witnesses with the recovery process in the eventuality when the complainant was aware of the place of occurrence due to prior spy information. In case of Shoaib Ali v. The State supra this Court has already observed that;
"After examining the depositions of both the above prosecution witnesses, it appears that the complainant had received spy information at Police Station Hyderabad regarding presence of accused at the place of incident/ recovery, which is situated at Tandojam. The place of incident was far away, despite that the complainant did not associate any private person to witness the recovery proceedings, nor he attempted to associate any person from Hyderabad or from the way to Tandojam and place of recovery, who could disclose the truth of the incident. We cannot ignore this aspect of the case as the complainant not only had sufficient time but so many chances to collect /associate any independent person to act as mashir in this case."
10. As per prosecution case 01-K.G chars was recovered from the appellant-accused in shape of small and big pieces but the memo of recovery does not disclose the number of those pieces, however the entire property was sent to the Chemical Examiner. The chemical examiner's report also reveals that multiple greenish brown, semi soft, small and big pieces of chars were received, out of which 100 (one hundred) grams were consumed in analysis but report is silent as to whether one piece of chars was taken for test or 100 grams were separated from single piece or from more than one piece for purpose of test, hence it cannot be said with certainty that entire property was chars.
11. Furthermore, the contradictions and discrepancies in the evidence of prosecution witnesses as pointed out by learned counsel for the appellant-accused have also created doubt in the prosecution case.
12. The facts of the case law relied upon by learned Special Prosecutor, A.N.F, are different than the facts of the case in hand.
13. After having adjudged the case from every angle and having sifted grain from the chaff, we have reached at the conclusion that the prosecution has miserably failed to prove its case against the appellants-accused beyond shadow of doubt and it is settled proposition of law that for giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts, if there is a single circumstance, which creates reasonable doubt about the guilt of the accused, then the accused will be entitled to the benefit. In this respect, reliance can be placed upon case of Muhammad Akram v. The State reported in 2009 SCMR 230, wherein the Honourable Supreme Court has held that;
"For giving benefit of doubt it is not necessary that there should be many circumstances creating doubts--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
14. Keeping in view the above facts and circumstances of the case as well as case law, benefit of doubt is extended in favour of the appellant-accused and as a consequence whereof instant appeal is allowed, impugned judgment is set aside and the appellant-accused is acquitted of the charge. He is present on bail, his bail bond is cancelled and surety is discharged.
SA/N-48/Sindh Appeal allowed.