IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Appeal No.D-10 of 2018.

PRESENT:

Mr. Justice Khadim Hussain M. Shaikh,

Mr. Justice Amjad Ali Sahito,

Appellant Ali Hyder Teghani, through Mr. Abid Hussain Qadri, Advocate.

Respondent The State through Mr. Sharafuddin Kanhar, Assistant Prosecutor General.

Date of hearing: 22.3.2018.

Date of Decision: 22.3.2018.

J U D G M E N T

Amjad Ali Sahtio –J. The captioned appeal is directed against the judgment dated 10.02.2018, passed by the learned Sessions Judge/ Special Judge for CNS, Kashmore at Kandhkot in CNS Case No.11 of 2017 re-State v. Aly Hyder, emanating from FIR No.65 of 2018 registered at P.S C/Section Kandhkot, whereby appellant Ali Hyder son of Kandero Teghani has been convicted for offence under Section 9(c), Control of Narcotic Substances Act, 1997 and sentenced to undergo R.I. for 04 years and 06 months, and to pay fine of Rs.20,000/- and in default in payment of fine to undergo S.I. for 05 months more. He, however, has been extended the benefit of Section 382-B, Cr.P.C.

2. Briefly the facts of the case are that on 19.04.2017 a police party headed by complainant Inspector Muhammad Sadiq Odho while was on patrolling, on an advanced tip-off, went to the pointed place, namely, near Water Supply Kandhkot and apprehended the present appellant, recovering a shopper from his possession, containing 1100 grams of charas, which was sealed at the spot and such mashirnama was prepared in presence of mashirs ASI Muhammad Murad and PC Akbar Ali. Then the arrested accused and the property were brought at Police Station, where the subject FIR was lodged. After usual investigation the appellant was sent up with the challan to face his trial.

3. After completing all the formalities, a formal charge was framed against the appellant at Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea Ex.2/A.

4. In order to prove its case, the prosecution examined complainant Muhammad Sadiq as PW-1 at Ex.3, who produced departure and arrival entries, mashirnama of arrest and recovery, FIR, letter to Chemical Analyzer and his report at Ex.3-A to 3-F- respectively; mashir ASI Muhammad Murad as PW-2 at Ex.4. Thereafter, the prosecution closed its side. The statement of appellant under Section 342, Cr.P.C was recorded at Ex.6, wherein he, denying all the allegations leveled against him, professed his innocence. He, however, neither examined himself on oath under the provisions of Section 340(2), Cr.P.C nor did he examine any person as his defence witness. At the conclusion of trial and after hearing the parties, learned trial Court has convicted the appellant, as discussed in paragraph-1 supra.

5. It is, inter alia, contended by the learned Counsel for the appellant that the appellant is innocent and he has been falsely implicated in this case at the instance of an influential person of the locality due to his tribal dispute; that there are material contradictions in the evidence led by the prosecution; that no independent person was associated with the recovery proceedings despite the fact that police had an advance information about the availability of the appellant at the pointed place along with the alleged narcotic substance; and, that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. He, therefore, prays that the appeal may be allowed and the appellant may be acquitted of the charge.

6. Learned Assistant Prosecutor General, referring to the contradictions in the evidence led by the prosecution and endorsing the contentions of the learned Counsel for the appellant, has frankly conceded to the prayer of learned Counsel for the appellant for acquittal of the appellant.

7. We have considered the submissions of learned Counsel for the appellant and learned Assistant Prosecutor General and have gone through the evidence with their assistance.

8. On evaluating the evidence brought on record, we find that no sincere effort has been made by the police to associate any independent person to the recovery proceedings; PC Shoukat Ali, who was given the alleged narcotic substance on 21.4.2017 and delivered the same in the office of Chemical Analyzer on 24.4.2017, has not been examined by the prosecution to show safe custody and safe transmission of the alleged narcotic substance; there are material contradictions in the evidence led by the prosecution, such as, PW-1 complainant Muhammad Sadiq has stated that the, accused present in the Court is same so also the case property, but it is not mentioned anywhere in the deposition that whether the property was de-sealed or not and how the complainant identified the property. Further the complainant has stated in the FIR that he called the scale through PC Haji Khan but it is not mentioned that from where the scale was brought. PW.2 mashir Muhammad Murad has stated that all the contraband material was weighed and it came to 1120 grams and in cross examination he has stated that, the charas was in shape of two pieces. He further stated in the cross examination that, there were weights of 500 grams and 250 grams. It is surprising to note that total weight of the weights came to 750 grams then how the weight to total contraband came to 1120 grams further there is no weight to 250 grams which clearly shows that the P.Ws have given their statements in surmises and conjectures. Apart from above material infirmities and contradictions in the prosecution evidence rendering the prosecution case highly doubtful, there are several other infirmities and discrepancies, which need not to be discussed just to save the space. It needs no reiteration that a single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, benefit thereof is to be extended to the accused not as a matter of grace or concession but as of right. Reliance in this context can be placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein Hon’ble Supreme Court of Pakistan has held that:

“It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”

9. In view of the above, we are of the considered view that the aforesaid infirmities and discrepancies in the evidence of prosecution, rendering this case highly doubtful were not at all considered by the trial Court while passing the impugned judgment, convicting and sentencing the appellant; and, thus the impugned judgment suffers from misreading and non-reading of the evidence. In our humble view, the conviction and sentence awarded to the appellant cannot sustain, for, the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. Accordingly, the appeal is allowed and conviction and sentence awarded to the appellant vide impugned judgment dated 10.02.2018 are set aside and the appellant is acquitted of the charge. The appellant is on bail, his bail bond stands cancelled and his surety is discharged.

10. Above are the reasons of our short order dated 22.3.2018.

Judge

Abid Kazi PS/**