IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

                    Criminal Jail Appeal No.D-38 of 2019

Before:

Mr.Justice Khadim Hussain M.Shaikh

Mr.Justice Irshad Ali Shah

Appellant                 :           Nourez son of Samandar Brohi

                                    (None for the appellant)

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

Date of hearing      :           13.05.2020

Date of decision    :           13.05.2020.

J U D G M E N T

IRSHAD ALI SHAH-J; It is the case of prosecution that the appellant was found in possession of 1200 grams of Charas by police party of C.I.A Centre, Jacobabad, for that he was booked and reported upon. On due trial, the appellant was found guilty for the above said offence and was convicted and sentenced to undergo rigorous imprisonment for 04 years and 06 months with fine of Rs.20,000/= (Twenty thousand) and in default whereof, to undergo simple imprisonment for 05 months, with benefit of Section 382-B Cr.PC,   by learned Special Judge (CNS) Jacobabad, vide his judgment dated 02.07.2019, which is impugned by the appellant before this Court by way of instant Jail Appeal.

2.                    We have heard learned D.P.G for the State who has supported the impugned judgment and perused the record.

3.                    Despite going to the place of incident on receipt of spy information, complainant ASI Yar Muhammad did not associate with him independent person to witness the possible arrest and recovery for no obvious reason and such omission on his part could not be overlooked. As per PW/Mashir PC Umer Din, 45 minutes were consumed in recovery proceedings at the place of incident but it is not accounted for by the complainant in memo of arrest and recovery, which appears to be significant. Neither, the incharge of “Malkhana” nor the person who has taken the Charas to the Chemical Examiner has been examined by the prosecution to prove its safe custody and transmission and such omission on the part of prosecution could not be overlooked.

4.                    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”.

5.                    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.

6.                    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.

7.                    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.

8.                    The instant appeal is disposed of in above terms.

                                                                                      J U D G E

     J U D G E