IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Crl. Appeal No. D – 17 of 2020.

 

                                                            Before;

                                                                      Mr. Justice Khadim Hussain Tunio,

                                                                      Mr. Justice Irshad Ali Shah

 

Appellant:                 Allah Wadhayo @ Makoro son of Muhammad Panjal bycaste Bozdar.

(Now confined at Central Prison Khairpur)

Through M/s Rukhsar Ahmed Junejo and Mumtaz Ali Junejo, Advocates.

 

The State:                 Through Mr. Talib Hussain Siyal, Assistant Prosecutor General for the State.

 

Date of hearing:     31-03-2021.

Date of decision:    31-03-2021.

 

J U D G M E N T

 IRSHAD ALI SHAH, J. The appellant by preferring instant appeal has impugned judgment dated 27-02-2020 passed by learned 1st Additional Sessions Judge/Special Judge for (CNS) Khairpur, whereby he for an offence punishable u/s 9(c) CNS Act, 1997 for being in possessions of 1600 grams of charas, was convicted and sentenced to undergo R.I for four years and six months with fine of Rs. 20,000/- and in default in payment whereof to undergo S.I for five months.

2.        At trial, appellant denied the charge and prosecution to prove it, examined PW-1 complainant ASI Ghulam Shabbir Larik, PW-2 mashir PC Piyaro Khan PW-3 PC Azizullah and SIO/SIP Aftab Hussain Shah and then closed the side.

3.        The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence by stating that he has been involved in this case falsely by the police. He did not examine anyone in his defence or himself on oath to disprove the prosecution’s allegation against him in terms of section 340 (2) Cr.P.C.

4.        On conclusion of the trial, the appellant was convicted and sentenced by learned trial Court by way of impugned judgment as stated above.

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 only to show its efficiency; that there is no independent witness to the incident; that the incharge of ‘malkhana’ has not been examined by the prosecution; that the property has been subjected to its chemical examination with delay of about five days and evidence of the prosecution being inconsistent and doubtful has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant. In support of his contentions, he has relied upon cases of Hussain Ali Vs. The State (2020 MLD 70), Muhammad Wali Vs. The State (2020 P.Cr.L.J 1442) and Fazal Maula Vs. The State (2020 P.Cr.L.J 1524).

 6.       Learned A.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant Crl. Appeal.

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

 8.       It is stated by complainant ASI Ghulam Shabbir and PW/mashir PC Piyaro Khan that on the date of incident, when they with rest of the police personnel, were conducting the patrol, and reached adjacent to Octroi post near Ansari Petrol Pump, they found the appellant, he was apprehended and on search from him was secured the 1600 grams of charas beside unlicensed pistol, bullets and cartridges, a mashirnama of arrest and recovery was prepared then the appellant was taken to PS Pir Jo Goth and was booked accordingly. On asking, it was stated by the complainant that on arrest, the hands of the appellant were tied with his Romal and mashirnama of arrest and recovery was prepared by PC Baqa Muhammad. The complainant in that respect is belied by PW/mashir PC Piyaro Khan, as per him, on arrest the appellant was hand cuffed and mashirnama of arrest and recovery was prepared by the complainant himself. The inconsistency in between the evidence of complainant and PW/mashir Piyaro Khan could not be lost sight of, simply for the reason that it has made their version to be doubtful. The property, as per report of chemical examiner has been subjected to chemical examination with delay of about five days, such delay having not been explained plausibly could not be over looked.  None has been examined by the prosecution to prove the safe custody of charas for intervening period. As per SIP/SIO Aftab Hussain Shah, the 161 Cr.P.C statements of PWs were written by PC Ghulam Qadir. If it was so, then it goes to suggest that his participation in process of investigation was only to the extent of table. Be that as it may, PC Ghulam Qadir, who has conducted the material investigation of the case by recording 161 Cr.P.C statements of the PWs has not been examined by the prosecution, which has prejudiced the appellant in his defence seriously. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he is found entitled;

 9.       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".

 10.     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 he is acquitted of the offence, for which he has been charged, tried and convicted by the learned trial court, he is in custody and shall be released forthwith in the present case.    

 11.     Above are the reasons of short order dated 31-03-2021, whereby the instant Crl. Appeal was allowed.

                                                                                                                  J U D G E

 

                                                                                         J U D G E             

Nasim/Steno