IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Crl. Jail Appeal No. D – 223 of 2016.

Before;

Mr. Justice Khadim Hussain Tunio,

Mr. Justice Irshad Ali Shah.

Appellants: 1. Hikmatullah s/o Habibullah Achakzai Pathan.

2. Muhammad Saleem s/o Abdul Jalil Kakar Pathan.

Through Mr. Amanullah G.Malik, Advocate.

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

Date of hearing: 13-04-2021.

Date of decision: 21-04-2021.

J U D G M E N T

IRSHAD ALI SHAH, J. It is the case of prosecution that the appellants were found driving the truck, it was made to stop by the Excise Police party led by AETO Muhammad Ali, on search in its spare wheal, was found lying 35 KGs of charas for that they were booked and reported upon.

2. On trial, the appellants did not plead guilty to the charge and prosecution to prove it, examined PW-1 complainant AETO Muhammad Ali and PW-2 mashir EC Muhammad Haroon and then closed its 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 have been involved in this case falsely by the Excise Police by foisting the 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/Special Judge (CNS) Naushahro Feroze found the appellants guilty for offence punishable u/s 9 (c )of CNS Act, consequently convicted and sentenced them to undergo Rigorous Imprisonment for life and to pay fine of Rs.50,000/- each and in case of their failure, to make payment of fine to undergo Simple Imprisonment for six months each with benefit of section 382-B Cr.P.C vide his judgment dated 10-11-2016, 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 Excise Police only to show its efficiency; that there is no independent witness to the incident despite availability in shape of puncture boy; that the narcotic substance has been subjected to chemical examination with delay of about five days; that the property produced before the Court was other than the one which was allegedly secured; 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, therefore the appellants are liable to their acquittal by extending them benefit of doubt. In support of his contentions, he has relied upon cases of Najam Khan Vs. The State (2006 P.Cr.L.J 1664), Shahzada Vs. The State (2010 SCMR 841), Amjad Ali Vs. The State (2012 SCMR 577) and Ghulam Mustafa alias Mushtaq Ali Vs. The State (2012 P.Cr.L.J 860).

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 proved its case against the appellants 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).

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

8. It has been inter-alia stated by complainant AETO Muhammad Ali and PW mashir EC Muhammad Haroon that on the date of incident, when they with rest of the Excise Police personnel were on their duty at Rasool Abad Check post, there they found the appellants coming in the truck, it was made to stop and on search, in its spare wheal, were found lying 35 packets of charas, those were weighed separately and each one was found to be one KG, total 35 KGs, from each packet 200 grams of the charas was taken out for Chemical examination, the charas secured and separated then was sealed and such memo was prepared and then the appellants with the recovery so made, were taken to Excise DIO Camp @ Kandiaro, there they were booked in the present case formally. No independent witness has been cited by them despite availability of Hotel of Sukhio Solangi, which admittedly was situated at the distance of 200/250 paces from the place of incident, which appears to be significant. As per the complainant he consumed three hours in completing the Karwai at the place of incident, which according to PW mashir EC Muhammad Haroon, was completed within five minutes. Such inconsistency in between their evidence could not be lost sight of, which apparently has made their version to be doubtful. The samples of the charas as per report of chemical examiner were subjected to chemical examination with delay of about five days to its recovery. No explanation to such delay is offered by the prosecution. The complainant, on asking was fair enough to admit that the memo of arrest and recovery, FIR of the present case and the 161 Cr.P.C statements of the PWs were recorded by EC Abdul Sattar at his dictation. When every paper relating to the investigation of the present case was prepared by EC Abdul Sattar, then his examination was essential. His non-examination could not be over looked, which apparently has prejudiced the appellants in their defence seriously. On production before learned trial Court, each packet of charas was found containing two slabs. There is nothing in memo of arrest and recovery or even in FIR of the present case, which may suggest that each packet of the charas was found containing two slabs. From which slab, the sample of the charas was taken out, it is also doubtful. In that situation, the contention of learned counsel for the appellants, that the charas which has been produced before learned trial Court was other than the one, which has allegedly been recovered in present case, could not be brushed aside. EC Zahid Hussain, who allegedly taken the samples of charas to the chemical examiner, has not been examined by the prosecution to prove safe transmission whereof, for no obvious reason. His non-examination for as such could not been over looked.

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. It was a time barred appeal and there was no flaw in that case, which in the present case have been noticed.

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 been charged, tried and convicted by the learned trial court, they are in custody and shall be released forthwith in the present case, if not required in any other custody case.

14. The instant Crl. Jail Appeal is disposed of accordingly.

J U D G E

Nasim/Steno