IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-47 of 2022

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

Appellant: Imran Shah son of Irshad Ali Shah

Through Mr. Muhammad Afzal Jagirani, Advocate.

The State: Through Mr. Ali Anwar Kandhro, Addl.P.G.

Date of hearing: 10-05-2023.

Date of decision: 10-05-2023.

JUDGMENT

IRSHAD ALI SHAH, J;. It is alleged that the appellant was found to be in possession of 2300 grams of Charas; such allegation he denied the charge and the prosecution to prove it, examined complainant SIP Muhammad Iqbal and his witnesses and then closed its side; the appellant in his statement recorded under Section 342 Cr.PC denied the prosecution’s allegation by pleading innocence; he did not examine anyone in his defence or himself on oath. On conclusion of trial, he was convicted u/s. 9 (c) of CNS Act 1997 and sentenced to undergo rigorous imprisonment for nine years and to pay fine of Rs.80,000/-, by learned 1^st Additional Sessions/Special Judge for CNS Cases/MCTC, Kandhkot, vide judgment dated 25.11.2022, which he has impugned before this Court by preferring the instant criminal appeal.

2. It is contended by learned counsel for the appellant that he being innocent has been involved in this case falsely by the police and very case on investigation was recommended by the Investigation Officer to be cancelled under “A” class; such aspect of the case was lost sight of by learned trial Court. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt, which is opposed by learned Addl.P.G for the State by supporting the impugned judgment.

3. Heard arguments and perused the record.

4. Admittedly, there is no independent witness to the incident. As per the complainant, he prepared the memo of arrest and recovery himself; he in that respect is belied by PW/Mashir ASI Illahi Bux by stating that it was prepared by HC Rehmatullah; such inconsistency in their evidence being police officials could not be overlooked, which indeed has made the preparation of memo of arrest and recovery to be doubtful. The property has been subjected to chemical examination on 3^rd day of its recovery and such delay having not been explained plausibly could not be overlooked. The incharge of Malkhana has not been examined; his examination was essential to prove safe custody of the Charas allegedly secured in the present case. As per I.O/SIP Khan Muhammad, on investigation the appellant was found to be innocent and the very case against him was recommended by him to be disposed of under “A” class and its cognizance was taken by Magistrate having jurisdiction; such aspect of the case could not be ignored. In these circumstances, it could be concluded safely that the prosecution has not able to prove its case against the appellant beyond shadow of doubt and to such benefit he is found entitled.

5. 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".

6. In view of facts and reasons 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 was charged, tried, convicted and sentenced by learned trial Court, he shall be released forthwith, if is not required to be detained in any other custody case.

7. The instant criminal appeal is disposed of accordingly.

JUDGE