IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Crl. Jail Appeal No. D – 36 of 2018

Before;

Mr. Justice Khadim Hussain Tunio,

Mr. Justice Irshad Ali Shah

Appellants: 1. Faisal Ashraf s/o Muhammad Ashraf Muhajir

2. Muhammad Safdar s/o Muhammad Taqi Barikzai Muhajir (Now confined in Central prison Sukkur)

Through Mr. Rukhsar Ahmed Junejo, Advocate.

Respondent: The State, through Mr. Aftab Ahmed Shar, A.P.G.

Date of hearing: 24-03-2021.

Date of decision: 24-03-2021.

J U D G M E N T

IRSHAD ALI SHAH, J. It is the case of the prosecution that the appellants were found transporting 20 KGs of the charas in shape of 20 slabs through their car, for that they were booked upon by the police party of PS Excise Ghotki.

2. At trial, appellants did not plead guilty to the charge and prosecution to prove it, examined PW-1 complainant ETO Siraj Ahmed Samtio and PW-2 mashir EI Hussain Bux Larik and then closed the side.

3. The appellants in their statements recorded u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence by stating that they were apprehended by the police at Toll Plaza Sukkur, when they were going to Karachi from Quetta and then were involved in this case falsely by making foistation of charas upon them. They did not examine anyone in their defence or themselves on oath to disprove the prosecution’s allegation against them in terms of section 340 (2) Cr.P.C.

4. On conclusion of the trial, learned Sessions Judge/ Special Judge (CNSA) Ghotki found the appellants guilty for offence punishable u/s 9(c)of CNS Act, and then convicted and sentenced them to undergo Rigorous Imprisonment for life with fine of Rs.100,000/ each and in case of their failure, to make payment of fine to undergo Simple Imprisonment for four months each with benefit of section 382-B Cr.P.C vide his judgment dated 20-03-2018, which is impugned by the appellants before this Court by preferring the instant Crl. Jail Appeal.

5. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police only to show its efficiency; that there is no independent witness to the incident; that the incharge of ‘malkhana’ and the person who has taken the samples of charas to the chemical examiner have not been examined by the prosecution to prove the safe custody and its transmission; that the complainant was declared to be hostile to the prosecution; that there is conflict between complainant and PW EI Hussain Bux Larik with regard to the scale used for weighing the charas and evidence of the prosecution being inconsistent and untrustworthy has been relied upon by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellants. In support of his contentions, he has relied upon cases of Kamran Shah and others Vs. The State and others (2019 SCMR 1217) and Mst. Razia Sultana Vs. The State and others(2019 SCMR 1300).

6. Learned A.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant Crl. Jail Appeal by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt. In support of his contention, he has relied upon Shazia Bibi Vs. The State (2020 SCMR 460), Asmat Ali Vs. The state (2020 SCMR 1000) and Mushtaque Ahmed Vs. The State and another (2020 SCMR 474).

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

8. There is no independent witness to the incident. The complainant on account of his failure to support the case of prosecution on point of recovery, preparation and production of memo of arrest was declared hostile to the prosecution, such discrepancy could not be ignored. On asking the complainant was fair enough to say that the charas was weighed through manual weighing scale. He in that respect was belied by PW/ mashir EI Hussain Bux Larik by stating that the charas weighed through digital weighing scale. Such conflict in between their evidence could not be overlooked. None has been examined by the prosecution to prove the safe custody of the charas and transmission of the samples, whereof to the chemical examiner. Such omission could not be lost sight of.

9. In case of Ikramullah & ors vs. the State (2015 SCMR-1002), it has been observed by Hon’ble apex court that;

“In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the investigating officer appearing before the learned trial Court had failed to even to mention the name of the police official who had taken the samples to the office of Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter 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”.

10. The discussion involved a conclusion that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit they are found entitled;

11. 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".

12. The case law, which is relied upon by learned APG for the State is on distinguishable facts and circumstances. In none of the case law, the conviction was maintained ignoring the conflict with regard to the weighing scale used and despite the declaration of the complainant to be hostile to the prosecution.

13. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set-aside, consequently they are acquitted of the offence, for which they have charged, tried and convicted by the learned trial court, they are in custody and shall be released forthwith in the present case.

14. Above are the reasons of short order dated 24-03-2021, whereby the instant Crl. Jail Appeal was allowed.

J U D G E

Nasim/Steno