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