JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Appeal No.D-29 of 2021.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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Before:

Mr. Justice Irshad Ali Shah,

 Mr. Justice Shamsuddin Abbasi,

For hearing of main case.

22.12.2021

                        Mr. Muhammad Ali Pirzado, Advocate for the appellant.

Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.

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IRSHAD ALI SHAH, J;- The appellant, after due trial, for being in possession 1100 grams of Charas, was convicted and sentenced under section 9(c) of the CNS Act, 1997, to undergo R.I for 04 ½ years with fine of Rs.20,000/- and in default whereof, to undergo S.I for five months, by learned 1^st Additional Sessions/Special  Judge (CNSA), Kamber, vide judgment dated 30.10.2021, which has been impugned by the appellant before this Court by preferring the instant criminal appeal.

2.        It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police and the evidence brought on record by the prosecution being inconsistent has been believed by learned trial Court, without lawful justification. By contending so, he sought for acquittal of the appellant. In support of his contention, he relied upon case of Miandad Vs. The State (2019 YLR-954).

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

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

5.        No independent witness was associated by complainant SIP Attaullah to witness the arrest of appellant and recovery of the Charas from him, despite advance information; such omission on his part could not be overlooked. The Charas allegedly recovered from the possession of the appellant as per report of Chemical Examiner was in shape of ten pieces; the same as per complainant and PW/Mashir ASI Ghous Bux was in shape of more than ten pieces; such inconsistency could not be overlooked. The Charas has been subjected to the Chemical Examiner on 3^rd day of its recovery. No plausible explanation to such delay is offered. No mashirnama of place of incident has been drawn separately. The appellant has claimed to have been involved in this case falsely on account of pendency of his civil dispute with DSP Zahid Hussain Tunio and others. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond reasonable shadow of doubt.  

6.        In case of Muhammad Mansha Vs. The State (2018 SCMR 772), it has been held by the Hon’ble Apex court 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".

7.        In view of 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, if is not required to be detained in any other custody case.

8.        The instant criminal appeal is disposed of accordingly.

  JUDGE

                                                            JUDGE