THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Appeal No.551 of 2020
Before:
Mr. Justice Mohammad
Karim Khan Agha
Mr. Justice
Irshad Ali Shah
Appellant: Muhammad
son of Sultan through Mr. Nadir Khan Burdi advocate
Respondent: The
State through Mr. Muhammad Iqbal Awan Additional Prosecutor General Sindh
Date of hearing: 06.09.2021
Date of announcement: 08.09.2021
J U D G M E N T
IRSHAD ALI SHAH, J- The appellant after due trial, for being in
possession of 1700 grams of Charas for an offence punishable under Section 9(c)
of the CNS Act 1997, has been convicted and sentenced to undergo Rigorous
Imprisonment for ten years and to pay fine of Rupees Two Lacs and in case of
default whereof to undergo Simple Imprisonment for two months by learned 1st
Additional Sessions Judge/MCTC Malir, Karachi vide his judgment dated
25.11.2020, which is impugned by the appellant before this Court by preferring
the instant 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 at the instance
of local politician; that there is no independent witness to the incident; that
the incharge of Malkhana has not been
examined by the prosecution and the case property has been subjected to
chemical examination with the delay of about three days, therefore, the
appellant is entitled to his acquittal by extending him benefit of doubt. In
support of his contentions, he has relied upon the cases of Abdul Ghani and
others vs. The State and others (2019 SCMR 608), Haji Nawaz vs. The State (2020
SCMR 687) and Mst. Sakina Ramzan vs. The State (2021 SCMR 451).
3. Learned
Addl. P.G for the state by supporting the impugned judgment has sought for
dismissal of the instant appeal by contending that the prosecution has been
able to prove its case against the appellant beyond shadow of doubt. In support
of his contention, he relied upon the cases of Tariq Mehmood vs. The State (PLD
2009 SC 39) and Mst. Sughran and another vs. The State (2021 SCMR 109).
4. We
have considered the above arguments and perused the record.
5. As
per complainant ASI Zameer Hussain, at the place of incident a lot of person
gathered. None amongst them has been picked up witness the arrest of the
appellant and recovery of contraband substance from him, which appears to be
surprising. On arrest, as per the complainant he prepared the memo of arrest
and recovery at the spot, which was witnessed by mashirs/P.Ws PI Mst. Najamun
Nisa and HC Muhammad Hussain. Evidence of P.W/mashir PI Mst. Najamun Nisa is
silent with regard to the preparation of memo of arrest and recovery, which
casts doubt over the version of the complainant that he prepared memo of arrest
and recovery at the spot. The investigation of the case was conducted by SIP
Muhammad Suleman. He was fair enough to admit that the property was sent to the
chemical examiner with delay of about three days. No explanation to such delay
is offered. The property for intervening period as per him was kept in Malkhana. Neither Incharge of Malkhana is examined nor any document
has been brought on record, which may suggest that the property allegedly
secured from the appellant for intervening period was actually kept in Malkhana. In these circumstances, it
could be concluded safely that the prosecution has not been able to prove its
case against the appellant beyond shadow of doubt especially in terms of the
safe custody of the narcotic.
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. The
case law which is relied upon by the learned Addl. P.G for the state is on
distinguishable facts and circumstances. In the cases of Sarfaraz Ahmed (supra), the recovery of 17 K.G of
heroin powder was made from the vehicle in possession of the accused. The
instant case is not relating to recovery of narcotic substance from vehicle in
possession of the appellant. In the case of Mst. Sughran (supra), the sentence was reduced. In the instant case, the
prosecution has not been able to prove its case against the appellant beyond
doubt, therefore, it would be unjustified to reduce the sentence.
8. For what has been discussed above, the
conviction and sentence awarded to the appellant by learned trial Court by way
of impugned Judgment is set-aside consequently, the appellant 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 he is not required to
be detained in any other custody case.
9. The
instant Appeal is disposed of accordingly.
JUDGE
JUDGE