IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

                    Criminal Appeal No.D-57 of 2019

Before:

     Mr.Justice Khadim Hussain M.Shaikh

    Mr.Justice Irshad Ali Shah

Appellant                 :           Saddam Hussain son of Shah Nawaz Rind

                                                None for the appellant

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

Date of hearing      :           20.05.2020

Date of decision    :           20.05.2020.

J U D G M E N T

IRSHAD ALI SHAH-J; Facts in brief necessary for disposal of instant appeal are that the police party of C.I.A Centre, Jacobabad, led by ASI Yar Muhammad Lashari, on spy information went at the place of incident, arrested the appellant there, secured from him 07 K.Gs of Charas in shape of 14 slabs and then booked him accordingly at P.S Jacobabad.

2.                    On trial, it was concluded by learned Special Judge (CNS) Jacobabad that the liability of the appellant is only to the extent of    03 ½ K.Gs of Charas, which has been subjected to the chemical examination and then convicted and sentenced the appellant to suffer R.I for 06 years and 06 months with fine of Rs.30,000/=     (Thirty thousand) and in default whereof, to undergo S.I for 06 months, with benefit of Section 382-B Cr.PC, vide his judgment dated 07.08.2019, which has been impugned by the appellant before this Court by preferring the instant appeal.

3.                    None has come forward to argue the case on behalf of the appellant, however, learned D.P.G for the State by supporting the impugned judgment has sought for its dismissal.

4.                    We have heard learned D.P.G for the State and perused the record.

5.                    Admittedly, the complainant with his police party has gone at the place of incident on spy information, yet he has failed to associate with him independent person to witness the possible arrest and recovery, and such omission on his part could not be overlooked. The case property was not de-sealed at the time when the complainant was examined before learned trial Court, for no obvious reason. The examination-in-chief of PW/Mashir PC Umer Din admittedly was recorded by learned trial Court in absence of learned counsel for the appellant. The offence alleged against the appellant was entailing with it the imprisonment for life and/or death sentence, therefore, the case shall not have been allowed to proceed in absence of learned counsel for the appellant, as is prescribed by Paragraph 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars. In that way, the appellant was denied right of fair trial as is guaranteed by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. The samples of contraband substance were sent to the chemical examiner on 3^rd day of its recovery. In order to prove the safe custody of the Charas for the intervening period, the prosecution was under lawful obligation to have examined the incharge of “Malkhana” and his non-examination could not be lost sight of.

6.                    The overall discussion involved 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.

7.                In case of Faheem Ahmed Farooqui vs. The State (2008 SCMR-1572), it is held by the Hon’ble Apex Court that;

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

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

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

                                                                                         J U D G E

     J U D G E