THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.308 of 2021

Before:

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

Appellant: Safdar Ali Khan son of Sabz Ali Khan through Mr. Shah Imroz Khan advocate

Respondent: The State through Mr. Ali Haider Saleem Additional Prosecutor General Sindh

Date of hearing: 20.09.2021

Date of announcement: 23.09.2021

J U D G M E N T

IRSHAD ALI SHAH, J- The appellant for being in possession of 1050 grams of charas after full-dressed trial for offence punishable under Section 6/9(c) of the CNS Act has been convicted and sentenced to undergo rigorous imprisonment for four years and six months with fine of Rs.20,000/- and in case of default in payment of fine, to undergo simple imprisonment for five months by learned VII-Additional Sessions Judge/MCTC-II, Karachi Central vide his judgment dated 29.05.2021, which is impugned by the appellant before this Court by preferring the instant 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 in order to save their skin after their severe maltreatment of him; that there is no independent witness to the incident and incharge of the Malkhana has not been examined by the prosecution to prove the safe custody of the charas, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt.

3. Learned Addl. P.G for the State has sought for dismissal of the instant Criminal Appeal by supporting the impugned judgment.

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

5. It has inter-alia been stated by complainant SIP Asif Khan and P.W mashir PC Ali Haider that on 19.11.2020, they with rest of the police personnel were conducting patrol under Roznamcha entry No.19. The Roznamcha entry which they have produced prima facie suggests that it was relating to their patrol on 18.11.2020, which has made their assertion to be doubtful with regard to the fact that they with rest of the police personnel were conducting patrol on 19.11.2020. It was further stated by them that during patrolling they found the appellant coming on a motorcycle in suspicious condition, he was signaled to stop, on which he put his motorcycle in speed and by that act he fell in a nearby Nala and sustained injuries, he was taken out from the Nala and was found to be in possession of 1050 grams of Charas. It is not appealing to prudent mind that the person even after his fall in Nala would hold with him in his fold the charas only to be secured by the police for his involvement in a criminal case. The charas allegedly recovered was not found to be wet even which ought to have been wet after fall of the appellant in Nala. It was further stated by them that a memo of arrest and recovery was prepared by them at the spot. No independent person was associated by them to witness the preparation of memo of arrest and recovery which appears to be surprising. It was further stated by them that the appellant together with the recovery so made from him was taken to PS Hyderi Market, there he was booked in the present case formally and further investigation of the case was conducted by SIO/SIP Arif Hussain. No person is examined to prove the safe custody of alleged charas at Malkahan. Apparently, after a table investigation, the challan of the case was submitted by the I.O/SIP Arif Hussain before the Court having jurisdiction for trial of the appellant. In these circumstances, the plea of innocence which the appellant has taken at trial and in his statement recorded u/s 342 Cr.P.C could not be lost sight of.

6. 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".

7. For what has been discussed above, the conviction and sentence awarded to the appellant by learned trial Court 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 learned trial Court. He shall be released in present case forthwith, if is not required to be detained in any other custody case.

8. The instant Criminal Appeal is disposed of accordingly.

JUDGE