IN THE COURT OF 1ST ADDITIONAL SESSIONS JUDGE
TANDO ALLAHYAR
Crl Appeal No.19/2024
1. Sadique Ali S/o Hazar Khan Brohi,
2. Rahmatullah S/o Khan Muhammad Brohi,
Both Muslim, Adult, by caste Brohi,
r/o village Noor Khan Brohi, Taluka Shahdadpur,
District Sanghar.
Now confined in District Prison Mirpurkhas……………….Applicants.
Versus
The State,……….……………….……………………..……..Respondent.
FIR NO:46/2023 of PS Dasori,
U/s: 8(i) SPPMSSUGM ACT-2019
PRESENT
Mr. Manzoor Ali Soomro, learned advocate for
applicants/accused.
Mr. Abdul Hafeez Ghouri, learned DDPP for the State.
JUDGMENT
Dated:
Through instant appeal, the appellants named above have
challenged the judgment dated 13.08.2024 passed by the learned Civil
Judge and Judicial Magistrate-III, Tando Allahyar in Criminal Case
No.115/2023 whereby the accused/appellant were convicted and
sentenced to suffer SI for two years and also to pay a fine of Rs.200,000/-
each. In case of failure to pay the fine the accused/appellants shall have
to suffer further SI for four months with benefit of section 382-B Cr.P.C.
The accused/appellants being agreed of the same have filed the instant
appeal with the prayer that the impugned judgment be set aside and the
accused/appellant be acquitted.
2. Precisely the facts germinated from the FIR lodged by complainant
ASI Akbar Khan Pathan are that on 12.07.2023 he left the police station
for patrolling alongwith his subordinate staff and when they reached at
Tando Adam-Mirpurkhas road adjacent to grave yard, they under
suspicion stopped Honda City Car bearing No.BXX-143 wherein the
accused/appellants were taking 15 socks out of which 14 socks were
containing 50 packets of Indian Safina Gutka in each sock while in the
one sock 35 packets of Indian Safina Gutka total 735 packets of Safina
Gutka were lying in the all 15 socks. It is further stated that each packet
was containing 110 sachets of Safina Gutka and total sachets were found
80,850. It is also stated that the property was weighed at the spot which
was found 8 mounds and 18 kgs. On further search police also recovered
two notes of Rs.100/- total Rs.200/- from accused/appellant Saddique Ali
and two notes of Rs.50/- total Rs.100/- from the possession of
accused/appellant Rahmatullah from their body search. The Safina Gutka
recovered from the possession of accused being intoxicated substance
hazardous for human health, therefore, the accused/appellants were
arrested by the police and such memo of arrest and recovery was
prepared at the spot with the signatures of official witnesses PC
Muhammad Irfan and PC Asif Ali and then were brought to police station
where complainant lodged the FIR against them for having committed the
offence punishable under section 8(i) of SPPMSSUGM ACT-2019.
3. The learned trial court after framing the charge examined the
prosecution witnesses viz complainant ASI Akbar Khan, Mashir PC
Muhammad Irfan, the Investigating Officer of the case SIP Imam Ali
Bhangwar and SIP Miskeen Gahelo and PC Mevo Bheel in support of the
prosecution case and also brought on record the documents exhibited in
evidence. Thereafter recording the statements of accused/appellants and
hearing the arguments of learned counsel for the accused/appellants,
learned ADPP for the state delivered the impugned judgment and
convicted the accused/appellant. Hence this appeal has been filed.
4. Mr. Manzoor Ali, learned counsel for the accused/appellant has
argued that the learned trial court has passed the impugned judgment in
hest and hurry manner without considering the evidence brought on
record. He has further argued that even the judgment is written by way
of cut paste which is evidence from the para No.13 of the judgment which
reflects that the facts of some other case were discussed in the same.
The learned counsel has further argued that there are numerous
contradictions, discrepancies and improvements in the evidence of
prosecution witnesses which render the prosecution story worthy of no
credit. He has further argued that the prosecution has miserably failed to
establish the charge against the accused beyond any reasonable shadow
of doubt. He has lastly argued that the accused/appellants are liable to be
acquitted and the impugned judgment passed by the learned trial court
be set aside. In support of his contentions he has relied upon the case
laws reported as (i) 2024 SCMR 1191, (ii) 2024 PCrLJ 1183, (iii) 2018 YLR
1992, and (iv) 2023 YLR 1276.
5. On the other hand, learned ADPP for the state has argued that all
the prosecution witnesses have fully supported the prosecution case.
There are no contradictions in their version on material aspects of the
case. The learned ADPP has also argued that a huge quantity of
intoxicated Gutka Indian made was recovered from the possession of
accused/appellant which is impossible for a police official of ASI rank to
arrange the same from his own sources and thirst upon the
accused/appellant. He has further argued that no ill will or animosity has
been alleged against the officials of police party to falsely implicate the
accused/appellant in the case. The learned ADPP has argued that the
learned trial court has elaborately discussed each and every aspect of the
case and the judgment is not result of misreading and non reading of the
evidence. The learned ADPP has argued that the prosecution has fully
proved the guilt of accused beyond any reasonable shadow of doubt,
therefore the learned trial court has convicted and sentenced the
accused/appellant. The appeal filed by the appellant/accused merits no
consideration therefore the same be dismissed.
6. After having heard the learned counsel for the parties and perusal
of record and proceedings of the learned trial court, it transpires that
there are so many material contradictions on the important aspects of
the case. The complainant in his examination in chief has stated that on
the day of incident 12.07.2023 he was performing the duty as SHO of the
PS whereas in the cross examination he has admitted that on the day of
incident neither he was SHO nor he had additional charge of the SHO and
has further stated that this fact was mistakenly written in his examination
in chief. The complainant has further admitted in his cross examination
that he neither remember the entry of his arrival on duty nor he has
produced the same before the court in evidence. The complainant in his
examination in chief has deposed that his departure entry in the
roznamcha was maintained by WHC Shah Muhammad Junejo whereas the
departure entry No.18 produced by him at Ex:3/A shows that he himself
had recorded his departure entry in the roznamcha. The record further
shows that the complainant has deposed that he left the police station for
patrolling at 1740 hours and thereafter he went to Qadir Farm and stayed
there for 30 minutes, thereafter Muhabat Shah chowk and stayed there
for 20 minutes then went to Dalpota petrol pump and reached there
within 30 minutes and after about 10-15 minutes of his stay there he
received the spy information. The above time shows that at the place of
information the police party had reached after 1900 hours which is a time
of arrest of accused/appellants and effecting recovery from them. The
record further shows that after receiving the information the complainant
went to the place of incident where he started checking of the vehicle
and after about checking of 5-6 vehicles the car of accused persons
arrived there. It shows that the recovery was not effected by the
complainant as claimed by him. The complainant has deposed that he
received the spy information at Dalpota petrol pump whereas mashir has
deposed that complainant received the information and he shared the
same with them at Al Wahid petrol pump. The complainant has deposed
that at the time of checking the vehicle he handed over the custody of
accused persons to PC Waseem whereas PC Muhammad Irfan has
deposed that at the time of checking the vehicle by ASI Akbar Khan he
was holding the custody of accused persons. The evaluation of evidence
also shows that during the cross examination the complainant has
admitted that the colour of socks were not mentioned by him in the
mashirnama of arrest and recovery. Similarly the mashir has also
admitted that the colour of socks was not mentioned in the mashirnama.
The perusal of record further shows that according to the FIR and
mashirnama each packet was containing 110 sachets whereas when the
property was de sealed in the court and the sachets were counted, one of
the packet was found containing 114 sachets. The above position further
reflects that the property was not properly verified and counted at the
place of incident by the complainant as claimed.
7. The evaluation of evidence further shows that during the cross
examination the prosecution witnesses have admitted that the place of
incident was situated at busy place and no private person was associated
by them as witness of arrest and recovery to ensure the compliance of
section 103 Cr.P.C.
8. Apart from the above discrepancies it has also come on record that
the prosecution has not examined the incharge of the malkhana
regarding keeping the property in safe custody nor even the entry of
malkhana register has been brought on record to show that at what time
the property was kept in the malkhana and at what time it was taken out
from the malkhana for sending the same to the office of Government
Public Analyst Hyderabad for examination of the property. The record
shows that the property was recovered on 12.07.2023 and it was sent to
the office chemical examiner on 14.07.2023 after the delay of two days
without any plausible explanation.
9. In the case law reported as Said Wazeer and another Vs The State
& others 2023 SCMR 1144 the Honourable Supreme Court of Pakistan has
held as under:-
“It has been observed by us that recovery was effected on
09.06.2016 whereas samples parcels were received in the
office of chemical examiner on 13.06.2016 without any
plausible explanation as to where remain these sample
parcels from 09.06.2016 to 13.06.2016. The safe custody
and safe transmission of the samples has also not been
established by the prosecution as Moharrar who kept the
sample parcel in the malkhana and sent the same to
laboratory was not produced by the prosecution. Due to
such defect on the part of prosecution it could not be held
with any degree of certainty that the prosecution had
succeeded in establishing its case against the accused
persons beyond any reasonable doubt.”
10. In another authority reported as Ghulam Nabi Shah Vs The State
2020 YLR 2127 the Honourable High Court of Sindh has also expressed
the similar views.
11. In the authority reported as Mir Muhammad & others Vs The State
2024 PCrLJ 370 the Honorable High Court of Sindh has held as under:-
“However, it had come in evidence that accused were
arrested from near a patrol pump leading road, which was a
thickly populated area and the complainant had sufficient
time to call the independent person of the locality to witness
the recovery proceedings but it was not done by him for
reasons best known to him and the only police officials who
being subordinates to him were made as mashirs of arrest
and recovery proceedings. Admittedly, judicial approach had
to be conscious in dealing with cases in which entire
testimony hinged upon the evidence of police officials alone.
Provisions of section 103 Cr.P.C., were not attracted to cases
of personal search of accused in narcotic cases but where
the alleged recovery was made on a road, omission to
secure independent mashirs, particularly in police cases
could not be brushed aside lightly by the court. No
explanation on record was available as to why no
independent person either from the place where they
received spy information or from the place of incident had
been joined to witness the recovery proceedings though it
was a day time incident. Circumstances established that the
prosecution had failed to prove its case against the accused.
Appeal against conviction was allowed in circumstances.”
12. In another authority reported as Shahzaib alias Wadero Feroz Vs
The State (2024 YLR 1298) and Muhammad Juman Khaskheli alias Jumoo
Vs The State (2024 YLR 1818) the Honourable High Court of Sindh has
expressed the similar view as above.
13. In another unreported authority of the Honourable High Court of
Sindh in criminal appeal No.S-102 of 2021 Ishtiaque Ali Vs the State
decided on 04.08.2023 it has been held as under:-
“It has been noticed that under the deposition of the
complainant SIP Kashif Abbas, Gutka was purportedly
discovered on 07.11.2020 while its corresponding samples
were dispatched to the office of chemical examiner on
09.11.2020, thereby resulting in a delay of two days.
However, the prosecution has failed to provide any
justification for this ordinate delay in sending the sample for
chemical examination. It is also noted with great concern
that the samples from the police station to the chemical
laboratory for analysis have been handed over to PC Imtiaz,
however, neither he has been cited as witness nor examined
to support the prosecution version regarding the safe
transmission of the samples to the laboratory. Thus, by not
producing the material witnesses by the prosecution, no
chain exists to prove the safe custody of the samples to the
laboratory. The missing chain creates serious doubts about
the authenticity and credibility of the chemical report.”
14. In another unreported authority of the Honourable High Court of
Sindh Hyderabad Circuit delivered in criminal appeal No.S-433 of 2019
Aijaz Ali Vs the State decided on 02.11.2020 it was held as under:-
“Admittedly, there is no independent witness to the incident
and the property allegedly secured from the appellant has
been subject to chemical examination with delay of about
five days; such delay having not been plausibly explained
could not be overlooked. As per report of chemical
examiner, the substance analyzed by him was not found to
be recommended for human consumption within meaning of
section (5) of the Pure Food Ordinance 1960 and it also
contravenes the provision of rule (11) of Sindh Pure Food
Rules 1965. Surprisingly, no such penal section is applied by
the police against the appellant while submitting the final
charge sheet. No hurt is caused to anyone by means of
alleged substance by the appellant. Neither, the incharge of
malkhana nor the person who has taken the alleged
substance to the chemical examiner has been examined by
the prosecution to prove its safe custody and safe
transmission. The appeal was allowed and the convict was
acquitted.”
15. The overall assessment of the record in the light of case laws
referred above reflects that in this case apart from the major
contradictions and discrepancies the prosecution has failed to procure to
show that any efforts were made for joining the private persons of locality
for acting as mashir and safe keeping and safe transmission of the
property to the office of chemical examiner for analysis. The
discrepancies and contradictions highlighted above are held as fatal for
the prosecution sufficient to make the prosecution case not free from
reasonable shadow of doubt to bring home the guilt of accused.
16. For the foregoing reasons, the impugned judgment passed by the
learned trial court is hereby set aside and the accused/convicts are
acquitted from the charge by extending them benefit of doubt. The
accused/appellants are in custody they are directed to be released
forthwith if not required in any other custody case. However, the order for
disposal of the case property is maintained.
Announced in open Court
Given under my hand and seal of the Court, this 27 th day of August,
2024.
(MUHAMMAD ABBAS SIYAL)
1st Additional District & Sessions Judge,
Tando Allahyar
