IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Special Criminal Appeal No. D – 28 of 2021.

Before;

Mr. Justice Khadim Hussain Tunio,

Mr. Justice Irshad Ali Shah.

Appellant: Khuda Bux son of Khuda Dad, Bycaste Khoso.

(Confined at Central Prison Sukkur).

Through Mr. Shabbir Ali Bozdar, Advocate.

The State: Through Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General.

Date of hearing: 19-05-2021.

Date of decision: 19-05-2021.

J U D G M E N T

IRSHAD ALI SHAH, J. The appellant allegedly for being in possession of 3340 grams of the charas, for an offence punishable u/s 9 (C) of CNS Act, 1997, after due trial, was convicted and sentenced to undergo Rigorous Imprisonment for six years and six months with fine of Rs. 30,000/- and in case of default whereof, to undergo simple imprisonment for six months with benefit of section 382-B Cr.P.C by learned 1^st Additional/Special Judge (CNS)/ MCTC Ghotki vide his judgment dated 05-03-2021, which is impugned by the appellant before this Court by preferring the instant special criminal 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 only to show its efficiency; that there is no independent witness to the incident; that the charas has been subjected to chemical examination with delay of about four days; that the prosecution has not be able to prove the safe custody of charas and its transmission to the chemical examiner in accordance with law and evidence of the prosecution witnesses being doubtful in its character has been believed by learned trial Court without assigning cogent reasons, therefore, the appellant is liable to his acquittal by extending him benefit of doubt.

3. Learned D.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant Special Criminal Appeal and contends that the prosecution has proved its case against the appellant beyond shadow of doubt.

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

5. As per complainant ASI Ali Hassan, the mashirnama of arrest and recovery was prepared by him while sitting in police mobile. In that respect he is belied by PW/Mashir HC Raiz Ahmed by stating that it was prepared by him on bonnet of police mobile. Such conflict between their evidence could not be over looked. No independent person has been associated to witness the recovery and arrest of the appellant despite their presence in shape “Zaireen at Dargah of Pir Pakhori”, which admittedly situated by the side of place of incident. Such omission on part of the complainant party could not be over looked. WPC Sanaullah and WPC Tariq, who as per I.Os/SIPs Ghulam Hyder and Muhammad Aslam written FIR of the present case, prepared mashirnama of place of incident and recorded 161 Cr.P.C statements of the PWs, have not been examined by the prosecution. Their non-examination without any justification could not be lost sight of. The charas, as per I.O/SIP Muhammad Aslam was dispatched to the chemical examiner under R.C No. 10 dated 30-03-2020, through PC Mansoob Ali. As per report of chemical examiner, it was delivered to him on 02-02-2021 by PC Mehrab Ali with office memorandum No. NJP/137/2020. When asked to clarify such conflict, it was stated by I.O/SIP Muhammad Aslam that it was typographical mistake on part of the chemical examiner. Nothing has been brought on record, which may suggest that it was a typographical mistake on part of the chemical examiner. PC Mansoob Ali, who alleged took the charas to chemical examiner, when was examined, stated that the charas was given to him on 30-03-2020 to be taken to the chemical examiner at Karachi, which he had taken to the chemical examiner on 02-04-2020. When asked, what he did with the charas for intervening period, it was stated by him that he kept the same in police “malkhana”. Nothing has been brought on record, which may suggest that the charas for intervening period was actually kept by him in police “malkhana”. In that situation, it could be concluded safely that the prosecution has not been able to prove the safe custody of the charas and its safe transmission to the chemical examiner in accordance with law.

6. The overall discussion involved a conclusion that the prosecution has not been able to prove its case beyond shadow of doubt and to such benefit, he is found entitled.

7. 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. For what has been 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 has been charged, tried and convicted by the learned trial Court, he is in custody and shall be released forthwith, if not required in any other custody case.

9. Above are that reasons of short order dated 19-05-2021, whereby the instant Special Criminal Appeal was allowed.

J U D G E

Nasim/Steno