IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Before:

Mr. Justice Khadim Hussain Shaikh,

Mr. Justice Amjad Ali Sahito,

Crl. Appeal No. D- 02 of 2017

Crl.Appeal No. D- 03 of 2017

Crl.Jail Appeal No. D- 05 of 2017

Crl. Jail Appeal No. D- 06 of 2017

Criminal Appeal No. D- 07 of 2017

Appellants: 01. Mumtaz Ali Malak through 02. Mumtaz Ali Malak through

Mr.Asif Ali Abdul Razak Soomro &

Mr.Safdar Ali Ghouri, Advocates.

03. Asha Kumari through Mr.Habibullah G. Ghouri, Advocate.

04. Raj Kumar through

Mr.Habibullah G. Ghouri, Advocate.

05. Raj Kumar through

Mr. Saeed Ahmed B. Bijarani, Advocate.

The State: Through Mr. Khadim Hussain Khooharo, Additional Prosecutor General.

Date of hearing: 19. 04.2018

Date of judgment: 19.04.2018

AMJAD ALI SAHITO, J.– This single judgment shall dispose of captioned appeals filed by the appellants through their counsels, wherein the appellants were tried and convicted by learned Sessions Judge Jacobabad vide impugned judgment dated 11.01.2017, in C.N.S Case No.03/2014 (St.Vs.Raj Kumar and others) for an offence punishable u/s 9 (c) of CNS Act, vide Crime No.27/2014 of Police Station City Jacobabad, to suffer imprisonment for life with imposition of fine of Rs.100,000/- and in case of failure of non-payment of fine, the accused/appellants to further undergo S.I for six months more. However, the benefit of Section 382-B Cr.PC was also extended to them.

2. The prosecution case as unfolded in the F.I.R is that on 16.03.2014, SIP Samandar Khan Chandio of Police Station City, Jacobabad, alongwith his subordinate staff while patrolling reached at Eidgah Chowk, Jacobabad, where during course of snap checking found accused namely Raj Kumar, Asha Kumari, Ghulam Mohammad and Mumtaz Ali transporting 43 kilograms of charas through a Toyota Corrolla Car bearing Registration No.AKQ-368. Such mashirnama of arrest and recovery was prepared at the spot in presence of mashirs, and the accused with recovery were then brought at Police Station City Jacobabad where the present case for an offence punishable u/s 9 (c) of CNS Act was registered against them on behalf of the State.

3. During the course of investigation, I.O/SIP Wasim Mirza declared appellant Mumtaz Ali as innocent and released him. He then submitted charge sheet under section 9 (c) of CNS Act, 1997, by showing name of appellant Mumtaz Ali in column No.2, who subsequently was joined by the learned trial Court and was sent to jail to face his trial.

4. The learned trial Court framed the charge against all the appellants at Exh.5, wherein they pleaded not guilty and claimed to be trial.

5. The prosecution in order to prove its case examined mashir PC Ahsan Ali at Exh.7, who produced memo of arrest and recovery at Exh.7-A. IO/SIP Wasim Mirza at Ex.9, who produced roznamcha entries at Exh.09-A to 09-D, chemical report at Exh.09-E. ASI Sikandar Ali at Ex.11, who produced DD entry and memo of formal arrest of accused Mumtaz Ali at Exh.11-A and 11-B respectively. During pendency of the case before the learned trial Court, complainant SIP Samandar Chandio was reported to be murdered with further request for calling his well conversant vide statement of learned In-charge DPP at Exh.12. Thereafter, prosecution examined ASI Sikandar Ali being well conversant with handwriting and signatures of complainant Samandar Chandio at Exh.13, who produced FIR of the present case at Exh.13-A. The prosecution next examined co-mashir PC Zahid Mustafa at Exh.14 and PC Muhabat at Exh.15, and then closed the side vide statement at Exh.16.

6. The appellants in their statements recorded u/s.342, Cr.PC at Exh.17 to 20 respectively, denied the prosecution allegations by pleading their innocence and lastly prayed for justice. However, none of them examined himself on oath nor led any evidence in their defense.

7. Learned In-charge DPP for the State filed application under section 540 Cr.PC r/w section 265-F (2), Cr.PC at Exh.21 to recall PW PC Muhabat Ali who deposited the samples of recovered charas to Chemical Examiner Rohri/Sukkur and after hearing the parties, the learned trial Court allowed the application Exh.22 vide order dated 19.09.2016 at Exh.22. Thereafter, PC Muhabat Ali was recalled and re-examined, who produced photo stat copy of road certificate at Exh.23-A. Later-on, the learned Incharge DPP for the State again closed the side of prosecution vide his statement at Exh.24.

8. The statements of the accused/appellants were also recorded under section 342 Cr.PC at Ex.25 to 28 wherein they denied the prosecution allegations leveled against them and claimed their innocence. However they neither examined themselves on oath nor produced any witness in their defense.

9. We have heard learned counsel for the appellants as well as learned Additional Prosecutor General for the State and have minutely perused the material available on record.

10. In the instant case, specific animosity and ill-will has been alleged against the police officials, therefore, it was incumbent upon the prosecution to prove its case by examining independent persons of the locality but the police did not examine any person of the locality to witness the recovery proceedings. PW mashir Ahsan Ali so also P.W mashir Zahid Mustafa in their cross examinations have categorically stated that the place of incident was a thickly populated area even the record does not reveal as to whether any effort was made to persuade any person including ‘Rehri’ passerby or drivers to act as Mashir of recovery, thus without obtaining the search warrant as well as alleged recovery of contraband material, there was flagrant violation of provision of section 103 Cr.PC. Furthermore, according to prosecution case, the contraband material was not recovered from the exclusive possession of the appellants. The record also reveals that during the course of investigation appellant Mumtaz Ali was found innocent and his name was placed in column No.2 of the challan. In his statement under section 342 Cr.PC appellant Mumtaz Ali has stated that SIP Samandar Khan arrested him from Jacobabad town and falsely involved him in this case, subsequently, he was let-off by I.O but again at the instance of Samandar Khan he was charged in the case. There are many discrepancies between the evidence of both the police officials. Suffice is to say that the ocular testimony is not trustworthy, the circumstantial evidence is also not inspiring confidence. All these factors rendered the entire case to be doubtful one.

11. In view of facts and reasons discussed above, we are of the considered view that the prosecution has miserably failed to prove it’s case against the appellants beyond any reasonable doubt and it is well settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit has to be given to the accused not as a matter of grace or concession, but as the matter of right. The reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:

4.--- Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim,”it is better that ten guilt persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State(1995 SCMR-1345), Ghulam Qadir and 2 others v. The State(2008 SCMR-1221), Muhammad Akram v. The State(2009 SCMR-230) and Muhammad Zaman v. The State(2014 SCMR-749).

12. In this case, the learned trial Court has not evaluated the evidence in its true perspective and thus arrived at erroneous conclusion by holding the appellants guilty of the offence. Consequently, the captioned appeals are allowed. The conviction and sentence awarded to the appellants are set-aside and they are acquitted of the charge by extending them benefit of doubt.

13. These are the detailed reasons of short order dated 19.04.2018, announced by us.

J U D G E