IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

                    Criminal Appeal No.S-36 of 2020

Appellant                 :           Samad Khan son of Abdul Wahid Pathan

                                                Through Mr.Ashiq Ali Jatoi, Advocate

The State                 :           Through Mr.Muhammad Noonari, D.P.G.

Date of hearing      :           14.05.2020

Date of decision    :           14.05.2020.

J U D G M E N T

IRSHAD ALI SHAH-J; The appellant by way of instant appeal has impugned judgment dated 31.03.2020, passed by learned 2^nd Additional Sessions Judge, Jacobabad, whereby he has convicted and sentenced the appellant as under;

“For offence under section 270 PPC, accused is sentenced to R.I for (1) one year with fine of Rs.20,000/-, in case of default in payment of fine, accused shall further undergo for S.I for (3) three months. For offence under section 337-J PPC, accused is sentenced to R.I for (5) five years. Accused is extended benefit of section 382-B Cr.PC, for the period, he remained in custody, as UTP”.

2.                    It is case of prosecution that the appellant was found in possession of four sacks each was found containing 20 K.Gs of    “Betel Nuts” alleged to be poisonous and was intending to spread infection/disease likely to cause hurt to person or to be dangerous/poisonous to human lives, for that he was booked and reported upon by the police.

3.                    The appellant did not plead guilty to the charge and prosecution to prove it examined, complainant ASI Azizullah Kato, PW/Mashir PC Muhammad Murad Panhwar, I.O/ASI Nawab Khan Arbani and then closed the side.

4.                    The appellant in his statement recorded u/s. 342 Cr.PC denied the prosecution allegation by pleading innocence by stating that he is a labourer and has been involved in this case falsely by the police. He did not examine anyone in his defence or himself on oath to disprove the charge against him.

5.                    On evaluation of evidence, so produced by the prosecution, the appellant has been convicted and sentenced accordingly by learned trial Court by way of impugned judgment.

6.                    It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police; he was not found to be in exclusive possession of the alleged substance; there is no independent witness to the incident; only 05 K.Gs of the alleged substance has been subjected to chemical examination that too with delay of about 13 days and the person who has taken the alleged substance to the chemical examiner has not been examined by the prosecution and Section 337-J PPC was misapplied by the police as none was caused hurt by means of poison by the appellant; the evidence of the prosecution being doubtful in its character has been believed by learned trial Court without cogent reasons, therefore, the appellant is entitled to acquittal.

7.                    Learned D.P.G for the State by supporting the impugned judgment has prayed for dismissal of the instant appeal.

8.                    I have considered the above arguments and perused the record.

9.                    Admittedly, there is no independent witness to the incident and only 05 K.Gs of recovered substance has been subjected to chemical examination. It is not known as to from which of the sack, the alleged substance was segregated by the complainant as “sample”. It has been sent to the chemical examiner with delay of about 13 days, which is not explained plausibly. 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, neither of such section is applied by the police against the appellant while submitting the final charge sheet. No hurt is caused to any one 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 transmission.

10.                  In case of Ikramullah and others vs. The State           (2015 SCMR-1003), it has been held by the Honourable Apex Court that;

“the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit”.

11.                  The discussion involves the conclusion that the prosecution has not been able to prove its case against the appellant beyond the shadow of doubt and to such benefit he is found entitled.

12.                  In case of Faheem Ahmed Farooqui vs. The State              ( 2008 SCMR-1572), it is held that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

13.                  For what has been discussed above, the conviction and sentence recorded against the appellant together with the impugned judgment are set-aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. The appellant shall be released forthwith in the present case.

14.                  The instant appeal is allowed accordingly.

                                                                                        J U D G E