JUDGMENT SYED HASAN AZHAR RIZVI, J.---The appellant being aggrieved and dissatisfied by the impugned judgment dated 19-1-2010 passed by the learned Special Judge for (CNS), Larkana, who convicted the appellant Rajib Ali son of Muhammad. Qasim Soomro under section 9-C Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment for ten (10) years and to pay fine of Rs.50,000 (Rupees fifty thousand only) and in default of payment of fine he shall suffer S.I. For six months more, has filed the present Appeal.
2. The brief facts given rise to the present Appeal are that complainant SIP Ahsanullah of Police Station Areeja lodged and F.I.R. On behalf of the State stating therein that he along with his subordinate staff left the Police Station under Entry No.8 at 5-00 p.m. For patrolling in the area in a Police vehicle and ,while they were checking at Larkana-Areeja Road near abandoned Mosque at around 5-30 p.m. a motorcycle came from Larkana side which was signaled by the Police party to stop but motorcyclist tried to drive away, he slipped and fell down due to bumpy and stony road, he sustained scratches, he was apprehended by the Police and identified to be Rajib Ali Soomro, Head Constable posted at Police Station Mahi Makool. As per contents of the F.I.R., due to non- availability of private persons, Police officials namely A.S.-Is. Abdul Ghafoor and Muhammad Ayoob were associated as Mashers and in their presence personal search of the accused was conducted, during search seven slabs of charas were recovered from his possession, same were weighed to be seven kilograms. Thereafter some quantity of charas was taken from each slab which was weighed to be 500 grams and was sealed for analysis purposes. Police also seized motorcycle without registration number, engine and chassis numbers. Then such memo of arrest, recovery and seizure was prepared and the appellant along with property was brought at Police Station where the complainant lodged the F.I.R. Against the appellant Rajib Ali Soomro on behalf of State.
3. After completion the usual formalities Charge Sheet against the appellant was submitted before the trial Court. The case papers were delivered to the accused and such receipt was obtained. The formal charge was framed against the appellant to which he did not plead guilty and claimed to be tried.
4. The prosecution in order to establish its case against the appellant examined Mashir A.S.-I. Abdul Ghafoor, who produced entry and memo, complainant/S.I.P. Ahsanullah examined, who produced F.I.R. And Jaffer Hussain examined, who produced report of Chemical Examiner. The statement of appellant Rajib Ali Soomro under section 342, Cr.P.C. Was recorded to which appellant denied the allegations of the prosecution and pleaded his innocence. However, neither he examined himself on oath nor got examine any person in his behalf.
5. We have heard the arguments of Mr. A.Q. Halepota learned counsel for the appellant and Mr. Abdur Rahman Kolachi, Assistant P.G.
6. Learned counsel for the appellant argued that the evidence led by the prosecution was not worthy of credence and it could not form the basis of conviction of appellant. Learned counsel for the appellant further contended that there were major contradictions in the testimony of P. Ws.
Abdul Ghafoor and Ahsanullah, learned counsel submitted that those contradictions were so material that they made the testimony of those witnesses unbelievable.
7. Learned counsel for the 'appellant contended that the place (Larkana Areeja Road) from where the appellant was allegedly arrested, was a busy road with a lot of traffic on it during day time and which on their on admission was being checked by police, yet not a single private person was associated with the alleged recovery of 'Charas' from the possession of appellant.
8. Learned counsel for the appellant further submitted that the Charas was allegedly recovered from the possession of appellant on 21 June, 2007 and samples were allegedly prepared on the same day, yet they were sent to the Chemical Examiner, Government of Sindh, Chemico Laboratory through letter No.RC No.42 dated 5-7-2007, thus samples were sent to the Chemical Examiner after delay of thirteen days. Learned counsel submitted that they delay in sending samples was fatal to the case of prosecution.
9. Learned-counsel for the appellant contended that there was manipulation of tampering during the period of thirteen days and samples sent to the Chemical Examiner were not same which were allegedly recovered from the possession of the appellant. Learned counsel further contended that there was no evidence about authenticity of samples. The wrappers in which samples were put and sent to Chemical Examiner were neither same nor they were identified as such. Learned counsel further stated that the description of Articles sent to the Chemical Examiner was different than the one allegedly given by Police party at the time of alleged seizure. The weight of samples allegedly taken at the time of seizure was 500 grams and from the weight of samples received by the Chemical Examiner was 377 grams and 357 grams net. Learned counsel for the appellant submitted that there was no evidence regarding weight of each samples taken from seven sheets of 'Charas'.
10. Learned counsel for the appellant contended that the 325 grams unconsumed `Charas' samples said to be returned back from Chemical Examiner were also not produced before the trial and the property produced before the trial Court was different than one allegedly recovered from possession of the appellant.
11. Learned counsel for the appellant argued that no reliance could be placed upon the report of Chemical Examiner which was otherwise also violative of Rule 6 of CNS (Government Analysis)
Rules, 2001.
12. Learned counsel for the appellant contended that the prosecution case was not to be accepted because Police witnesses had enmity and grudge to falsely implicate the appellant. One single circumstance throwing doubts was sufficient to discard prosecution case not as a matter of grace and concession but as a matter of right.
13. Learned counsel for the appellant further argued that the conviction of the appellant was based upon manifestly unsatisfactory evidence, which apart from being false, was also contradicted by other circumstances of the case. Learned counsel for the appellant urged that the impugned judgment is not maintainable in law as well as on facts and it is fit to be reversed.
14. Learned counsel for the appellant prayed that the impugned judgment be set aside and acquit the appellant.
15. Mr. Abdur Rahman Kolachi, Assistant P.-G. Half heartedly supported the judgment of the trial Court and contended that the judgment is just, legal and proper.
16. We have heard this matter for number of dates i.e. On 3-9-2010, 7-9-2010, 8-9-2010, 22-9-2010, 4-10-2010 and 8-10-2010. On 22-9-2010 at the request of learned Additional Prosecutor General the I.O. Was called to appear before this Court on 4-10-2010. On 4-10-2010 S.-I. Jarar Hussain was appeared. However we directed the Assistant Prosecutor General to procure the attendance of I.O.
Of the case under Appeal namely Ahsanullah s/o Gadda Hussain. On 9-10-2010 Inspector Ahsanullah/P.W.1, I.O. Of the case under Appeal and Sub-Inspector Jarar Hussain/ P.W. Appeared before us.
17 We have inquired from Investigating Officer Ahsanullah to explain us as to how he has collected 500 grams of Charas from seven bars and in what proportionate from each bar. The I.O. Could not explain to us the quantity of Charas which hg has taken from each bar. He replied that he has only taken 500 grams from seven bars. Accordingly to the report of the Chemical Analyser, five parcels were received by them. The total weight of parcels along with its contents were 377 grams and net weight of the Charas was 357 grams. Out of the aforesaid quantity only 30 grams of Charas was consumed during the chemical analysis and the remaining unconsumed material was returned under sealed parcel, The said remaining material, which is claimed to have been returned by the Chemical Analyser, was never produced before the trial Court by the Investigating Agency. When we confronted the I.O. With this position he failed to offer any plausible explanation. In view of the contradictions in the report dated 10-9-2007 and non-production of the unconsumed samples before the trial Court, for which no plausible explanation has been given, either in the judgment impugned or by the I.O., who was present on our direction, we are of the considered view that the prosecution has failed to prove case against the appellant beyond reasonable doubt. The investigation conducted in this matter was not honest. Either the I.O. Was incompetent or he by theses contradictions had attempted to favour the appellant, who happens to be the Head Constable in Police Department.
18. For the aforesaid reasons, we, by our short order dated 8-10-2010, had allowed the Appeal and set aside the impugned judgment dated 19-1-2010 passed by the learned Special Judge for CNS, Larkana, in Special Narcotics Case No.13 of 2007 and ordered release of the appellant/accused in the aforesaid crime, if not required in any other matter.