IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Crl. Jail Appeal No. D – 31 of 2021

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Zulfiqar Ali Sangi.

Appellants: 1). Shahzad son of Muhammad Aalim Dayo.

2). Muhib Ali son of Akbar Khan Khoso Through Mr.Habibullah Ghouri, Advocate.

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

Date of hearing: 05-04-2023.

Date of decision: 05-04-2023.

JUDGMENT

IRSHAD ALI SHAH, J. It is the case of the prosecution that the appellants were found transporting 15 K.Gs of Charas lying in sack through their motorcycle by police party of CIA Centre, Jacobabad, for that they were booked and reported upon. On conclusion of trial, they were convicted u/s. 9 (C) of CNS Act, 1997 and sentenced to undergo Rigorous Imprisonment for life with fine of Rs.100,000/- each and in default whereof to undergo Simple Imprisonment for one year each with benefit of Section 382-B Cr.PC by learned 1^st Additional Sessions Judge/MCTC, Jacobabad, vide judgment dated 13.07.2021, which they have impugned before this Court by way of instant Criminal Jail Appeal.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police and the evidence of PWs being inconsistent on material points has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellants, which is opposed by learned Addl.P.G for the State by supporting the impugned judgment by contending that the offence which the appellants have committed is affecting the society at large.

3. Heard arguments and perused the record.

4. It was stated by complainant ASI Yar Muhammad and PW/Mashir HC Lal Muhammad that on 08.04.2021, they with rest of the police personnel were conducting patrol within Jacobabad town, when reached at Eidgah Chowk, there they started checking of the vehicles, during course whereof, they found coming a motorcycle from Quetta side, on it were found sitting the appellants with sack; it was made to stop; sack was secured and it was found containing 30 slabs of Charas; each one was weighed to be 500 grams, total 30 K.Gs; those were sealed under memo; the appellants with the recovery so made were taken to P.S City Jacobabad, there they were booked in the present case formally. On asking, it was stated by the complainant that before reaching at the place of incident, they visited different places with stay of about five minutes on each place which they visited; the Charas was weighed through digital scale which was lying in investigation kit; the memo of arrest and recovery was written by PC Mansab Ali at his dictation and motorcycle of the appellants was brought at P.S City Jacobabad by PC Iqbal. Contrary to him, it was stated by PW/Mashir HC Lal Muhammad that no stay was taken by them at any place which they visited before reaching at the place of incident; the Charas was weighed through digital scale, arranged by PC Rameez Ahmed and memo of arrest and recovery was prepared by the complainant himself and motorcycle of the appellants was brought at P.S City Jacobabad through police mobile. These inconsistencies between the evidence of complainant and PW/Mashir HC Lal Muhammad being material could not be ignored which obviously have made their version to be doubtful and untrustworthy. The evidence of I.O/SIP Ghulam Murtaza is only to the extent that the appellants and the property were handed over to him by the complainant and he then recorded FIR of the present case. It was stated by I.O/SIP Sikandar Ali that on investigation, he recorded 161 Cr.PC statements of PWs, deposited the property in Malkhana, visited the place of incident, prepared such memo and then dispatched the Charas to Chemical Examiner through PC Muhbat Ali. In order to prove such fact, PW/PC Muhib Ali was examined. As per report of Chemical Examiner, the Charas was delivered in his office by PW/PC Muhbat Ali on 12.04.2021; it was with delay of about four days to its recovery; no plausible explanation to such delay is offered, therefore, such delay could not be overlooked. The ownership of the motorcycle has not been ascertained. None from the locality has been examined under Section 161 Cr.PC by I.O/SIP Sikandar Ali to ascertain the correctness of the incident. In these circumstances, it could be concluded safely that the prosecution has not able to prove its case against the appellants beyond shadow of doubt and to such benefit they are 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. Having concluded above, the conviction and sentence awarded to the appellants by way of impugned judgment are set-aside, consequently, they are acquitted of the charge, they shall be released forthwith, if are not required to be detained in any other custody case.

JUDGE