IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-03 of 2022

Before:

                                            Mr. Justice Irshad Ali Shah.

                                                                               Mr. Justice Arbab Ali Hakro.

Appellant:                    HC Abdul Qadir s/o Habibullah Chandio

Through Mr.Ahmed Bux Abro, Advocate

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

Date of hearing:           02.05.2023

Date of decision:           02.05.2023

JUDGMENT

IRSHAD ALI SHAH, J; It is alleged that the appellant being constable in jail was found in possession of 300 grams of Charas, for that he was booked and reported upon by police. On conclusion of trial, he was convicted u/s. 9 (b) of CNS Act, 1997 and sentenced to undergo rigorous imprisonment for one year and three moths and to pay fine of Rs.9,000/- and in default whereof to undergo simple imprisonment for three months and fifteen days with benefit of Section 382-B Cr.PC by learned 1^st Additional Sessions/Special Judge/MCTC, Larkana, vide judgment dated 25.01.2020, which he has impugned before this Court by way of 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 Jail Superintendent, otherwise, he has nothing to do with the alleged incident and evidence of the witnesses being doubtful has been believed by learned trial Court without lawful justification, therefore, he is entitled to be acquitted 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.         It is stated by PW/Mashir PC Anwar Ali that on the date of incident, he was posted at Central Jail Larkana. On such date, he conducted the search of the appellant and secured from him 300 grams of Charas under memo which was prepared by complainant Muhammad Morial, Assistant Jail Superintendent; such narration takes support from evidence of complainant Muhammad Morial, Assistant Superintendent, Central Prison Larkana; he obviously was not the member of regular police, therefore, was not authorized to have conducted initial investigation of the case of his own, without authorization, as is prescribed under Section 4 (1)(i) of Cr.PC. Be that as it may, the FIR of the incident was recorded by I.O/ASI Allahdad allegedly at the verbatim of the complainant and further investigation of the case was conducted by I.O/SIP Rahim Bux. It was stated by him that on investigation, he kept the property in Malkhana, recorded 161 Cr.PC statements of PWs, dispatched the Charas to Chemical Examiner who certified the same to be Charas and after usual investigation submitted challan of the case. The property has been subjected to chemical examination with delay of about three days and no explanation to such delay is offered; such omission could not be overlooked. Incharge of Malkhana has not been examined by the prosecution; his examination was essential to prove the safe custody of the Charas, therefore, his non examination could not be ignored. PW/Mashir PC Anwar Ali who allegedly taken the Charas to the Chemical Examiner when examined was found silent with regard to such activity on his part. 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.         Having concluded above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside, consequently, he is acquitted of the charge, he is present in Court on bail, his bail bond is cancelled and surety is discharged.

7.         The instant criminal appeal is disposed of accordingly.

               JUDGE

    JUDGE