IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No.D-69 of 2019

Before:

Mr.Justice Khadim Hussain M.Shaikh

Mr.Justice Irshad Ali Shah

Appellant : Sultan Ahmed @ Papoo s/o Rustam Khan

Through Mr.Ali Nawaz Junejo, Advocate

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

Date of hearing : 29.04.2020

Date of decision : 29.04.2020.

J U D G M E N T

IRSHAD ALI SHAH-J; It is the case of prosecution that on arrest from the appellant was secured 1120 grams of Charas in shape of pieces by police party of P.S, City Jacobabad, which was led by complainant/SIP Sikandar Ali Bhutto, for that he was booked and reported upon.

2. At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined Complainant SIP Sikandar Ali Bhutto, PW/Mashir PC Umed Ali, PW/PC Mohabat Ali and then closed the side.

3. The appellant in his statement recorded u/s. 342 Cr.PC denied the prosecution allegation by pleading innocence but did not examine anyone in his defence or himself on oath.

4. On conclusion of the trial, learned 1^st Additional Sessions Judge/MCTC, Jacobabad, found the appellant to be guilty for an offence punishable u/s. 9(c) of CNS Act, for being in possession of 1120 grams of Charas and then convicted and sentenced him to undergo rigorous imprisonment for 05 years and 06 months and to pay fine of Rs.20,000/= and in default whereof, to undergo simple imprisonment for 05 months, with benefit of section 382-B Cr.P.C vide his judgment dated 03.10.2019, which is impugned by the appellant before this Court by preferring the instant appeal.

5. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police; there is no independent witness to the incident; the Charas has been subjected to chemical examination with un-plausible delay of three days; none has been examined by the prosecution to prove safe custody of the Charas and learned trial Court has not appraised the evidence properly. By contending so, he prayed for acquittal of the appellant.

6. Learned D.P.G for the State by rebutting the above contentions has prayed for dismissal of the instant appeal.

7. We have considered the above arguments and perused the record.

8. The memo of arrest and recovery is said to have been prepared at about 0845 hours, it was the time when the complainant with his police party has claimed to have arrived at the place of incident. The time consumed in arrest and recovery proceedings, which as per PW/Mashir PC Umed Ali was spreading over 20/25 minutes, have not been accounted for by the prosecution, which has made the memo of arrest and recovery allegedly at the place of incident to be doubtful one. The Charas is alleged to have been secured in shape of pieces. How many pieces those were? It is neither disclosed in memo of arrest and recovery nor in the FIR. Such omission could not be lost sight of. The place of incident is claimed to be busy spot yet no independent witness has been associated by the complainant to witness the arrest of the appellant and recovery of alleged contraband substance from him, which appears to be significant. No justification is advanced by the prosecution which prevented the complainant, who himself has conducted the investigation of the case from preparing the memo of place of incident. Such omission could not be overlooked. The Charas allegedly secured from the appellant was sent to the Chemical Examiner through PW/PC Mohabat Ali. It was on 3^rd day of its recovery. In that situation, in order to prove the safe custody of the Charas in “Malkhana”, the prosecution was to have examined the incharge of “Malkhana”, who has not been examined by the prosecution without any lawful justification.

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

10. In case of Muhammad Masha v.The State(2018 SCMR 772), it was observed by the Hon’ble Supreme Court of Pakistan that;

“4….Needless 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 the accused, then the 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 guilty 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).”

11. For what has been discussed above, the conviction and sentence awarded to the appellant together with the impugned judgment are set-aside. Consequently, the appellant is acquitted of the offence, for which he has been charged, tried and convicted by the learned trial court. The appellant is on bail, his bail bond is cancelled and his surety is discharged.

12. The instant appeal is allowed accordingly.

J U D G E