IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Special Crl. Appeal No. D –22 of 2021

Before;

Mr. Justice Khadim Hussain Tunio,

Mr. Justice Irshad Ali Shah.

Appellant: Atta Muhammad son of Mehboob Ali bycaste Chang in person.

The State: Through Mr. Imran Mobeen Khan, Assistant Prosecutor General.

Date of hearing: 14-04-2021.

Date of decision: 14-04-2021.

J U D G M E N T

IRSHAD ALI SHAH, J. The appellant for being in possession of 200 grams of charas was booked by SIP Rasheed Ahmed Shar of Police Station Faiz Ganj. On due trial, the appellant was found guilty, therefore he for an offence punishable u/s 9 (b) of CNS Act was convicted and sentenced to undergo R.I for One year and three months with fine of Rs. 9000/-, in case of default whereof to undergo S.I for five days by learned Additional Sessions Judge/CNS Judge Mirwah vide his judgment dated 26-02-2021, which is impugned by the appellant before this Court by preferring the instant Crl. Appeal.

2. It is contended by the appellant that he being innocent has been involved in this case falsely by the police on account of his failure to pay bribe; that there is no independent witness to the incident and case property has been subjected to chemical examination with delay of five days to its recovery and none has been examined by the prosecution to prove safe custody of case property and its transmission to the chemical examiner, therefore, he is liable to his acquittal as his case is not free from doubt.

3. Learned A.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant Crl. Appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

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

5. Admittedly, complainant SIP Rasheed Ahmed Shar with his police party went to

the place of incident on spy information, therefore he was under obligation to have associated with him independent person to witness the possible arrest of the appellant and recovery of charas from him. His omission to do so could not be lost sight of. The charas admittedly has been subjected to chemical examination with delay of about 05 days to its recovery. No explanation to such delay has been offered by the prosecution, which appears to be significant. Neither the incharge of “malkhana” nor the person who has taken the charas to chemical examiner, has been examined by the prosecution to prove its safe custody and transmission.

6. 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”.

7. The conclusion which could be drawn of the above discussions would be 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;

8. 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".

9. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside, consequently he is acquitted of the offence, for which he was charged, tried and convicted by the learned trial court, he is present in Court on bail, his bail bond is cancelled and surety is discharged.

10. Above are the reasons of short order dated 14-04-2021, whereby the instant appeal was allowed.

J U D G E

Nasim/Steno