IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Spl. Crl. Acquittal Appeal. No.D- 06 of 2023

Present:-

Mr. Justice Yousuf Ali Sayeed, J.

Mr. Justice Zulfiqar Ali Sangi, J.

Syed Sardar Ali Shah, Addl.P.G.

None for respondent.

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Date of hearing: 02.11.2023

Date of decision: 02.11.2023

J U D G M E N T

ZULFIQAR ALI SANGI, J; Through captioned Crl. Spl. Acquittal appeal State has assailed the judgment dated 08.10.2022, passed by Ist Additional Sessions Judge/Special Judge (CNS), Naushehro Feroz, in Special Case No.48/2022 (Re-Faheem Ali Jamali) culminating from FIR No.62/2022 registered at P.S Darya Khan Mari, for offence punishable u/s 9(c) CNS Act, 1997, whereby the respondent Faheem Ali son of Wazeer Ali by caste Jamali was acquitted by extending benefit of doubt.

2. The crux of prosecution case, as unfolded in the FIR lodged by the complainant ASI Liaquat Ali Khoso on 14.05.2022 at 07030 hours at PS Darya Khan Mari are that on the said date he along with subordinate staff PC Safdar Ali, PC Badaruddin duly arms and ammunitions, wearing official uniforms left Police Station vide entry No.18 at 0200 hours in official vehicle bearing registration No.SPC-739 driven by DPC Loung Khan for patrolling. During patrolling complainant received spy information that one person is waiting for conveyance at Mungia Mori duly armed with pistol as well as Charas. On receiving such information, complainant conveyed the same to his subordinate and proceeded towards pointed place, it was about 0630 hours when they reached at Mehran National Highway near Mungia Mori, where they saw a person who was standing on eastern side of the road, he was possessing a plastic shopper in his right hand, while seeing the police party tried to skip. Police party immediately stopped the vehicle encircled him and apprehend him along with said shopper. Due to non-availability of private mashirs PC Safdar Ali and PC Badaruddin were appointed as mashirs, shopper was taken into possession, opened the same and found 5 small and big pieces of Chars, which were weighed and becomes 2000 grams. One piece of chars weighing 250 grams was separated for sample, while remaining chars was sealed separately. On inquiry, accused disclosed his name to be Faheem Ali son of Wazir Ali Jamali. From his personal search, one TT pistol of 30 bore along with magazine containing 06 live bullets was also secured from left fold of his shalwar. Pistol was found in working condition. On demand, accused failed to produce valid license of said pistol. One note of Rs.500/- denomination was also secured from side pocket of his shirt. Complainant sealed the T.T pistol and currency note separated in presence of above mashirs. On inquiry, accused further disclosed that he used to sale Chars. Such mashirnama of arrest and recovery was prepared in presence and signatures of the mashirs. Thereafter, accused and recovered property was brought at PS where present FIR was registered against the accused on behalf of State.

3. After usual investigation, the police submitted challan against the accused/respondent before the competent Court of law. The learned trial Court completed all legal formalities and framed charge against the accused/respondent, to which accused pleaded not guilty and claimed trial.

4. The prosecution has examined 03 witnesses who all produced certain documents and items in support of their evidence. Thereafter, the side of the prosecution was closed.

5. The accused/respondent was examined in terms of Section 342 Cr.PC, wherein he denied the allegations leveled against him and pleaded his innocence.

6. Trial court after hearing the learned counsel for the parties and on assessment of evidence, by judgment dated 08.10.2022 acquitted the accused/respondent as stated above. Hence, this acquittal appeal.

7. Syed Sardar Ali Shah, Additional Prosecutor General appearing for State/appellant contended that the prosecution has successfully proved its case against the accused/respondent beyond a reasonable doubt and all the witnesses including complainant/seizing officer have fully implicated the respondent in their evidence recorded by the trial Court; that all necessary documents including the entries of station diary, the memo of recovery and FIR have been produced but despite that learned trial Court has passed the impugned judgment without application of judicious mind; that police officers are as good witnesses as comparison to the other if there is no any malafide or ill-will on their part to falsely implicate a innocent person; that trial Court also failed to appreciate delay of Five days delay in sending sample to the Chemical Laboratory, whereas nothing has come on record to show that any tampering was found in parcel received in the office of Chemical examiner. He further contended that the trial Court did not appreciate the evidence according to the settled principles of law, therefore, this acquittal appeal is liable to be allowed.

8. We have heard learned Addl.P.G appearing on behalf of State and have gone through the material available on the record with their able assistance.

9. We have carefully examined the evidence of prosecution witnesses and the impugned judgment. The trial court also assessed the evidence and found the same unreliable, untrustworthy and of no confidence. The learned trial Court in its judgment has given its findings in para-14 and 15 which are being re-produced as under;

14. A careful perusal of the Chemical examiner’s report would show that recovered narcotic substance was received on 19.05.2022. It is however, surprising to note that the recovery was effected on 14.05.2022, and the letter whereby such property (Charas) was dispatched with covering letter was dated 14.05.2022. It is by now very well settled law thatdelay in dispatching of property to the Chemical Examiner raises doubts about safe custody thereof entitling the accused no benefit of such doubt. For any reference, please see Amjad Ali v. The State (2012 SCMR577), Nazar Muhammad alias Nazroo v. The State (2018 YLR 1992) and Sadam Hussain v. The State (2018 MLD 1025).

15. The above infirmities and contradictions have made the case of prosecution doubtful and none else but the accused is entitled to benefit of such doubt. It is also settled that law for giving benefit of doubt there may not be many circumstances and if there is a single circumstances creating doubt, benefit thereof should go to the accused not as a matter of grace or concession but as a matter of right. For any reference, please see Tariq Parvez v. The State (1995 SCMR 1345).

10. Under the above circumstances we are of the view that the prosecution has failed to produce reliable, trustworthy and confidence inspiring evidence before the trial Court. There were several other circumstances in the case which had created reasonable doubt in the case. In the cases of circumstantial evidence strong evidence is required for convicting the accused, which too is lacking in this case. It is settled law that the appreciation of evidence in the case of appeal against conviction and appeal against acquittal are entirely different as held in the case of Ghous Bux v. Saleem and 3 others (2017 P.Cr.L.J 836). In the case of Muhammad Mansha Kousar v. 4 Muhammad Asghar and others (2003 SCMR 477) the Supreme Court observed as under:-

“That the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading, non-reading of evidence… Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible”.

Similar view was reiterated by the Supreme Court in the case of Muhammad Tasaweer v. Zulkarnain and 2 others (PLD 2009 SC 53), in the following words:-

“Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.”

11. Thus, based upon the above reasons and keeping in view the dictum laid down in the cases (supra), we do not see any weight in the arguments advanced by learned Additional Prosecutor General Sindh and do not find any illegality or infirmity in the impugned judgment of acquittal; as such the acquittal appeal is hereby dismissed along with listed applications.

J U D G E

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