IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

                   Special Crl. Jail Appeal No.D-21 of 2023             

                  

                                                Present:

          Mr. Yousuf Ali Sayeed, J

          Mr. Zulfiqar Ali Sangi, J

 

Appellant:                       Saeed son of Dodal Kamboh

                                      In person confined in Central Prison &                                                       Correctional Facility, Khairpur (Absent)

 

The State:                       Through: Mr. Shafi Muhammad Mahar, DPG

 

Date of hearing:              06.12.2023

Date of decision:             06.12.2023

 

J U D G M E N T

 

Zulfiqar Ali Sangi, J.–     The appellant named above has filed instant Criminal Appeal, through Superintendent Central Prison and C.F Khairpur, whereby he has impugned the judgment dated 07.04.2023 passed by 1st Additional Sessions Judge/Special Judge Narcotics (MCTC) Khairpur, in Special Case No.178/2022 (Re. The State vs. Saeed Kamboh) arising out of Crime No.79/2022 for offence u/s 9 (c) CNS Act, 1997 registered at PS Ranipur, whereby he was convicted and sentenced to suffer imprisonment for 10 (ten years) and to pay fine of Rs. 40,000/-(forty thousand rupees) and in case of failure to pay fine amount, he suffer S.I for six month more with benefit of 382-B Cr.P.C, hence he has preferred the aforementioned appeal.

2.       Precisely, the facts of the prosecution case are that on 22.06.2022, at 1530 hours, at link road Shah-Ji-Machine via village Wada Bhellar, near village Bakir Shah, Taluka Sobhodero, the police party of PS Ranipur headed by SIP Aijaz Ali Dahar, had arrested the appellant/accused and recovered (2000) grams of chars in shape of four pieces lying in black shopper bag. 20 grams from each slab were separated for Chemical Examination. The alleged contraband substance was sealed at the spot under memo prepared in presence of mashirs PC Khan Muhammad and PC Ulfat Ali. The arrested accused was also found required in cases bearing FIR No. 63 of 2022 u/s 324, 353, 399, 402 PPC and FIR No. 73/2022 U/S 324, 353, 399, 402 PPC. Thereafter, the accused and recovered property was brought at PS where instant FIR was registered against him on behalf of the State.

3.       During investigation 161 Cr.P.C. statements of the PWs were recorded, samples were sent to the chemical examiner for report. Positive report of the chemical examiner was received. On the conclusion of investigation, challan was submitted against the appellant/accused u/s 9 (c) of CNS Act, 1997.      

4.       After completing legal formalities, the trial Court framed charge against the appellant/accused to which he pleaded not guilty and claimed to be tried.

5.       At the trial, the prosecution has examined 04 witnesses who all produced certain documents and items in support of their evidence.  Thereafter, the side of the prosecution was closed.

6.       The appellant was examined under section 342 Cr.P.C, wherein he denied the allegations leveled against him and pleaded his innocence. After hearing the parties and assessment of the evidence against the accused, trial Court convicted and sentenced the appellant/accused as stated above against the said conviction he has preferred instant appeal.

7.       Appellant/accused has not been represented by any counsel therefore we with the assistance of learned D.P.G have proceeded this appeal. Learned D.P.G after reading the entire evidence produced by the prosecution opposed the aforementioned appeal on the ground that prosecution has successfully proved its case against the appellant/accused beyond a reasonable doubt and all the witnesses including complainant/seizing officer have fully implicated the appellant /accused in their evidence recorded by the trial Court; that all the necessary documents including the entries of station diary, the memo of recovery, FIR, Chemical Examiner report etc have been produced; 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 during the cross-examination counsel had not shaken their evidence; that there are no major contradictions in the evidence of prosecution witnesses. Lastly, he submitted that appellant/accused were rightly convicted by the trial Court and prayed that appeal of appellant/accused may be dismissed.

8.       We have carefully examined the entire evidence produced by the prosecution and heard learned D.P.G for the State. On perusal of evidence of the complainant and the mashir who are the star witnesses of the prosecution, we are of the view that they have not witnessed the recovery and arrest but the story is managed against the appellant and the chars was foisted against him. The complainant deposed in his examination-in-chief that he himself prepared the memo of arrest and recovery, the mashir Khan Muhammad deposed the same that the complainant has prepared the memo of arrest and recovery in his examination-in-chief. When both the witnesses were cross-examined they changed their version in respect of the preparation of mashirnama and stated that it was prepared by PC Ulfat. Complainant stated that he himself conducted the search of appellant and at that time accused was in the custody of PC Khan Muhammad, however, PC Khan Muhammad (mashir) stated that personnel search of accused was conducted by PC Ulfat and at that time accused was in his custody. The complainant and the mashir in their chief-examination deposed that chars was in black shopper but the mashir during the cross-examination stated that the chars was wrapped in white color shopper. The noted contradictions are sufficient to discard the direct evidence of these two witnesses. Further the PC Ulfat stated to be prepared the mashirnama of arrest and the recovery so also conducted the search of accused has not been examined by the prosecution. The investigation officer deposed that he deposited the property in Malkhana through WHC and such entry No. 55 was kept in register No.19. The said entry No. 55 is available at page 29 on its perusal it reflects that contraband material was deposited in the Malkhana and after two days same was sent to chemical examiner under the same entry but the date of its recording in register No.19 is not mentioned to show that when it was recorded either on the day of recovery or on the day of sending the property to the chemical examiner. Entry No. 55 further indicates that the property was sent to chemical examiner through RC No.1115 dated: 24.6.2022 and if we presumed that the said entry was recorded on 24.06.2022 then it is again doubtful that where the property was for about two days. It is settled law that the Court(s) must never be influenced with severity of the offence while appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Reliance can be placed on the case of Azeem Khan and another vs. Mujahid Khan and others (2016 SCMR 274).

9.       The rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". It is well settled law that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is casted upon the accused to prove his innocence. It has also been held by the Superior Courts that the conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. Reliance is also placed on case of Naveed Asghar and 2 others vs. The State (PLD 2021 SC 600).

10.       The over-all discussion arrived at conclusion that the prosecution has miserably failed to prove the guilt against present appellant beyond shadow of any reasonable doubt. Resulting upon above discussion, we are of the judicious view that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellant as guilty of the offence. Thus, the instant criminal appeal is allowed; the conviction and sentence recorded against the appellant by way of impugned judgment could not be sustained, the same are set aside and the appellant is acquitted of the charge.

11.       These are the reasons of our short order dated: 06-12-2023.

 

                                                                                      JUDGE

 

                                                                             JUDGE