MUHAMMAD ACHAR MACHI vs THE STATE

1. ' FAIZ MUHAMMAD QURESHI, J.--- Mr. Asif has voluntarily offered his services to argue the appeal on behalf of convict/prisoner namely Muhammad Achar who had filed this Criminal Jail Appeal from Jail. We had called for record and proceedings from the trial Court and the same has been received today.

2. ' Present appellant has called in question the judgment, dated 26-3-2001 passed by the learned Special Judge for Control of Narcotic Substances, Larkana whereby the appellant has been convicted and sentenced to suffer R.I. For two years under section 9(b) of Control of Narcotic Substances Ordinance, 1995 and to pay fine of Rs,20,000 and in case of default accused to suffer R.I. For six months more for the charges of above offence. Hence this appeal.

3. ' The facts of the case are that on 30-5-1995 at about 10-00 p.m. Complainant S.I.P. Ghulam Sarwar Shah lodged F.I.R. At Police Station Dhamrah, stating therein that on the above date under Roznamcha Entry No,10, at about 5-00 p.m. He alongwith S.I.P. Muhammad Hashim. P.C. Nazir Hussain, H.C. Anwar Ali left police station for patrolling, at about 9-00 p.m. When they reached at the Bridge of Hameer Canal they saw one person standing there, who after seeing the police tried to slip away but he was apprehended on the spot. On enquiry, the accused disclosed his name as Muhammad Achar Machhi. They suspected the accused and took his personal search under section 54, Cr.P.C. And during the personal search of accused, secured Charas from his possession.

4. The Charas was weighed on the spot and its weight became 200 grams. The complainant thereafter prepared such Mashirnama of arrest of accused and recovery and obtained the signatures of the Mashirs S.I.P. Muhammad Hashim and P.C. Nazir Hussain, he thereafter, brought the accused and property at police station where he lodged the F.I.R. Against the accused.

5. ' After usual investigation accused was challaned before the Extra Joint Civil Judge and F.C.M., Larkana who sent up the case to the Court of Special Judge for C.N.S., Larkana.

6. ' The charge was framed against the accused and plea Was recorded in which accused pleaded not guilty and claimed to be tried. During the trial prosecution has examined recovery Mashir P.C.

7. Nazir Hussain as Exh.5 and the complainant S.I.P. Ghulam Sarwar Shah as Exh.6. During the evidence Mashir has produced the Mashirnama of arrest of accused and recovery of property as Exh.5-A, and the complainant has produced the F.I.R. And the report of the Chemical Examiner as Exhs.6-A and 6-B. Learned Incharge District Attorney closed the evidence side of the prosecution vide Exh.7.

8. ' Statement of accused recorded under section 342, Cr.P.C. As Exh.8 in which accused has denied the case of the prosecution.

9. ' Learned trial Court formulated the point for determination as under:-- ' "Whether on 30-5-1995 at about 9-00 p.m., at the Bridge of Hameer Canal, situated within the jurisdiction of Police Station Dhamrah, accused Muhammad Achar Machi was found in possession of 200 grams Charas, as alleged by the prosecution?"

10. ' Learned trial Court after going through the evidence addressed by the prosecution and material available on record, passed the judgment in terms stated above.

11. ' Mr. Asif Ali Abdul Razzak Soomro, learned counsel for the appellant has firstly drawn our attention that the prosecution is banking on the Entry No,10, dated 30th May, 1995 and thereafter the complainant party is said to have set out for patrolling and according to Mr. Soomro no such Roznamcha Entry No,10 has been produced by the complainant before the trial Court nor the prosecution has attempted to get it produced before the trial Court. According to Mr. Soomro non- production of genuine document cuts the roots of the prosecution's case and he has placed reliance on the cases reported in Qalandaro alias Nazro v. The State 1997 M LD 1632 and Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368 where this Honourable Court has given benefit of doubt to the accused on the score that the Roznamcha entry was not produced and such document has cut the root of the prosecution story and the benefit of doubt has been extended to the accused.

12. Mr. Soomro has further contended that the recovery has been effected from the possession of the appellant on 30-5-1995 and out of 200 grams only 10 grams were separated for sending to the Expert and the same has been despatched by the complainant party on 4-1-1996 and there is inordinate delay in sending the case property to the Expert which has also caused dent in the prosecution's version and it is not ascertained as to why 10 grams was retained by the police up to 4-1-1996 and what happened to the rest of the quantity and according to Mr. Soomro in that event the benefit of doubt goes to the accused. He has further drawn our attention on the statement of the accused and we have examined the statement under section 342, Cr.P.C. And that we have not been able to find out signatures on the first page of the statement under section 342, Cr.P.C. And there is flagrant violation of the mandatory provisions of section 364(2), Cr.P.C. And the reliance can be made on the case of Raees Khan v. The State 1991 PCr.LJ 617.

13. ' On the other hand Mr. Abdul Fatah Mughul, learned counsel for the State, has not supported the impugned judgment and has conceded the contention raised by Mr. Soomro in support of the appeal filed by the convict/prisoner Muhammad Achar.

14. We have examined the impugned judgment, material available on the record and the record of proceedings. Admittedly no Entry No,10 has been produced by the prosecution before the trial Court as whole case of the prosecution depends on this Entry No,10 which has not been produced and it can be presumed that the police party have not left the concerned police station for patrolling and the present appellant has been victimized by police in order to keep their pocket up.

15. We are being fortified by the law cited by the learned counsel for the appellant in this regard. We have also noticed with jade and critical eye that the property recovered from the possession of the accused has been sent on 4-1-1996 after delay of 7 months and there is no explanation whatsoever in this regard as to why the property was retained by police and in these circumstances, the benefit of doubt goes to the accused.

16. ' We have also noticed with caution that there is no signature on the statement under section 342, Cr.P.C. Of accused on the first page of the statement under section 342, and there is a flagrant violation of the mandatory provisions of section 342(2), Cr.P.C.

17. ' Upshot of the above discussion is that the prosecution has miserably failed to make out the case against the present appellant and accordingly, we set aside the impugned judgment, dated 26-3- 2001. In result the appeal is allowed. Appellant shall be released forthwith if not required in any other crime.

18. ' Before parting with this judgment, we acknowledge thanks on the valuable services rendered by Mr. Asif Ali Abdul Razzaq Soomro in this case.