IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

                    Criminal Appeal No.S-34 of 2020

Appellant                 :           Abdul Nafay s/o Kamaluddin Achakzai Pathan

                                                Through Mr.Ashiq Ali Jatoi, Advocate

The State                 :           Through Mr.Aitbar Ali Bullo, D.P.G.

Date of hearing      :           01.10.2020

Date of decision    :           01.10.2020.

J U D G M E N T

IRSHAD ALI SHAH-J; The appellant by preferring the instant criminal appeal has impugned judgment dated 06.04.2020, passed by learned 2^nd Additional Sessions Judge, Jacobabad, whereby he (appellant)  has been convicted and sentenced as under;

“therefore, accused Abdul Nafay by caste Achakzai Pathan is convicted for offences under section 270, 337-J PPC. 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 (3) three months. For offence under section 337-J PPC, accused is sentenced to R.I for (7) seven years. Both the sentences shall run concurrently. Accused Abdul Nafay is extended benefit of Section 382-B Cr.PC”.

2.                    The facts in brief necessary for disposal of instant criminal appeal are that the appellant allegedly was found transporting in all 160 K.Gs of “Betel Nuts” through his Truck, 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 Yar Muhammad, PW/Mashir PC Umer Din and SIO/SIP Muhammad Azam and then closed the side.

4.                    The appellant in his statement recorded u/s. 342 Cr.PC denied the prosecution allegation by pleading innocence. 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; there is no independent witness to the incident; the alleged substance has subjected to chemical examination with delay of about four days to its recovery  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 relied upon by learned trial Court without lawful justification reasons. By contending so, he sought for acquittal of the appellant.

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

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

9.                    The complainant alongwith his witnesses went at the place of incident on information, yet he failed to associate with him any independent person to witness the arrest of the appellant and recovery of alleged substance from him. Such omission on the part of complainant could not be overlooked. The samples of alleged substance have been subjected to chemical examination on fourth day to its recovery, such delay having no been explained plausibly could not be overlooked. 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, no such penal section has been applied by the police against the appellant while submitting the charge sheet against him. 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 its 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 conclusion which could be drawn of the above discussion would be that the prosecution has not been able to prove its case against the appellant beyond the shadow of doubt.

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.                  In view of the facts and reasons discussed above, the impugned judgment is set aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court, he shall be released forthwith in the present case.

14.                  The instant criminal appeal is allowed accordingly.

                                                                                        J U D G E