IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Crl. Appeal No. S – 11 of 2022

Appellants:                     1).  Ali Ahmed son of Nisar Ahmed Hingoro.

                                        2). Haneef son of Muhammad Allan Shar Through Mr. Abdul Khalique Bughio, Advocate.

The State:                        Through Mr. Aitbar Ali Bullo, D.P.G.

Date of hearing:              17-04-2023.

Date of decision:             17-04-2023.

JUDGMENT

IRSHAD ALI SHAH, J. It is alleged that the appellants in furtherance of their common intention were found carrying with them on their motorcycle 28 packets, each one was containing 50 Sachets of Gutkas, for that they were booked and reported upon. On conclusion of trial, they were convicted U/S. 8 of Sindh Prohibition, Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manpuri Act, 2019 and sentenced to undergo Rigorous Imprisonment for two years and to pay fine of Rs.200,000/- each and in default whereof to undergo Simple Imprisonment for six months with benefit of Section 382-B Cr.PC, by learned 1^st Additional Sessions Judge/MCTC, Dadu, vide judgment dated 13.04.2022, which they have impugned before this Court by way of instant Criminal Appeal.

2.       None has come forward to advance arguments on behalf of the appellants. However, learned D.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 them beyond shadow of doubt.

3.       Heard arguments and perused the record.

4.       Despite advance information, no independent person was associated by Complainant ASI Houte Khan to witness the possible arrest of appellants and recovery of alleged packets from them; such omission on his part could not be lost sight of. Only 50 sachets have been subjected to chemical examination that too with delay of about 11 days and such delay having not been explained plausibly could not be overlooked. None has been examined to prove the safe custody of the packets containing Gutkas in Malkhana and transmission of the samples whereof to the Chemical Examiner; such omission on the part of prosecution could not be ignored. In these circumstances, it could be concluded safely that the prosecution has not been 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 are on bail, their bail bonds are cancelled and sureties are discharged.

7.       The instant criminal appeal is disposed of accordingly.

               JUDGE