IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Special Crl. Appeal No. D –18 of 2021.

Before;

Mr. Justice Khadim Hussain Tunio,

Mr. Justice Irshad Ali Shah.

Appellant: Muhammad Aftab son of Sher Muhammad bycaste Bhanbhan.

(Now confined in judicial lockup, Thari Mirwah).

Through Mr. Sher Muhammad Shaikh, Advocate.

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 1370 grams of charas was booked by SIP Ghulam Asghar Chang of Police Station Mirwah. On due trial, the appellant was found guilty, therefore he for an offence punishable u/s 9 (c) of the CNS Act was convicted and sentenced to undergo R.I for four years and four months with fine of Rs. 20,000/-, in case of default whereof to undergo S.I for three months 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 learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police on account of its failure to pay bribe; that there is no independent witness to the incident; that the case property has been subjected to chemical examination with delay of eleven days to its recovery; that none has been examined by the prosecution to prove safe custody of charas and its transmission to the chemical examiner and no question with regard to the report of chemical examiner being positive or otherwise has been put to appellant during course of his examination u/s 342 Cr.P.C, therefore, the appellant is liable to his acquittal by extending him benefit of doubt. In support of his contentions he has relied up case of Gulzar Vs. The State (2021 SCMR 380).

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 proved its case against the appellant beyond shadow of doubt. In support of his contention, he has relied upon case of Abdul Wahab and others Vs. The State (2019 SCMR 2061).

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

5. Admittedly, complainant SIP Ghulam Asghar Chang with his police party went at the place of incident on spy information, therefore he ought to have associate with him independent person to witness the possible arrest of the appellant and recovery of charas from him. His failure to have associated with him independent person for no obvious reason could not be lost sight of. As per the complainant, the spy information was communicated to him by the spy in person. He in that respect is belied by PW/mashir PC Nazir Ahmed, by stating that the information was communicated to the complainant by the spy through mobile phone. Such conflict between their evidence; could not be over looked. The contraband substance obviously has been subjected to chemical examination with delay of about 11 days to its recovery. No explanation to such delay is offered by the prosecution. Neither the incharge of “malkhana” nor the person who has taken the contraband substance to the chemical examiner, has been examined by the prosecution to prove it s safe custody and transmission to the chemical examiner.

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 discussion involved a conclusion 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;

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".

8. The case law which is relied upon by learned APG for the State is on distinguishable facts and circumstances. It was a time barred appeal and there was no procedural flaw in that case, which have been noticed in the present case.

9. In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellant 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 presence case.

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