IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

                   Special Crl. Jail Appeal No.D-11 of 2020

 

 

                   Present:

 

                   Mr. Yousuf Ali Sayeed, J

                        Mr. Zulfiqar Ali Sangi, J

 

 

Appellant:                                 Sajjan Khan son of Taj Muhammad Sahito

Through Mr. Rukhsar Ahmed Junejo,Advocate.

 

 

The State                                  Through Syed Sardar Ali Shah, Additional                                                          General Prosecutor, Sindh.

 

 

Date of hearing:              25.10.2023

Date of decision:             25.10.2023

 

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 16.01.2020 passed by 1st Additional Sessions Judge/Special Judge Narcotics (MCTC) Khairpur, in Special Case No. 49/2019 (Re. The State Vs. Sajjan Khan Sahito) arising out of Crime No. 22/2019 offence u/s 9 (c) CNS Act, 1997 registered at PS Sorah, whereby he was convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.100,000/- (One lac) and in case of default of payment of fine to suffer S. I for Six Months more, with benefit of 382-B Cr.P.C, hence he preferred the instant appeal.

 

2.       Precisely, the facts of the case are that on 29.03.2019, at 1630 hours complainant ASI Inayat Ali Shar lodged FIR stating therein that on the same day he along with sub-ordinate staff namely HC Akhtiar Hussain, PC Barkat Ali, PC Mushtaque Ali,  PC Masood, and PC Bagh Ali had  left  Police Station in official  vehicle, vide roznamcha entry No. 09 at 1130 hours proceeded for  patrolling within the jurisdiction of Police Station. After patrolling at  different places when they reached at Tajjal Mor,    where  he  received  spy  information  that  in  deh Kharich in the fields accused Sajjan Khan cultivated poppy crop and is cutting the heads of    poppy  for  acquiring  juice to prepare opium. The complainant conveyed  such   information  to  his sub-ordinate  staff   and proceeded   towards  pointed  place,  on reaching, they saw one  person  was  available  in  poppy  crop   having  sickle  and  was  cutting  the flowers. While seeing the police party started running but

complainant party with the strategy apprehended him, due to non-availability of private persons, HC Akhtiar Hussain and HC Barkat Ali were appointed as mashir. On inquiry, accused disclosed his name as Sajjan Khan son of Taj Muhammad by caste Mullo Sahito r/o Nao Tharr near Tajjal, Taluka Nara. On his search one currency note of Rs.50/- was secured and one sickle with wooden handle was also recovered, then the crop was deracinate and same was put in the plastic bags and sealed at the spot, on weighing one bag became 115 kilograms, second bag became 120 kilograms, third bag became 100 kilograms, while fourth bag become 20 kilograms, hence total weight of poppy became 355 kilograms. Then, memo of arrest and recovery was prepared with the signatures of above named mashirs. Thereafter, arrested accused and recovered property was brought at PS where instant FIR was lodged on behalf of 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 usual 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 appellant/accused to which he pleaded not guilty and claimed to be tried.

 

5.       In order to prove accusation against the appellant/accused, the prosecution has examined 05 witnesses who all produced certain documents and items in support of their evidence.  Thereafter, the side of the prosecution was closed.

6.       The appellant were examined under section 342 Cr.P.C, wherein they 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.       Learned counsel for the appellant/accused argued that accused is innocent and has falsely been implicated in this case by the police to show their efficiency; that the alleged property has been foisted upon appellant/accused; that all the PWs are police officials and no independent corroboration in shape of private witness is brought on record; that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court which is insufficient to warrant conviction against the appellant/accused; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant/accused; that the material contradictions appeared in the statements of prosecution witnesses on crucial points, but those have not been taken into consideration by the learned trial Court while passing impugned judgment; that the judgment passed by the trial Court is liable to be set-aside. Lastly, he prayed that the appellant/accused may be acquitted by extending him the benefit of doubt.

8.       Conversely, learned Addl. P. G appearing for the State opposed the 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 and FIR have been produced; that the 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 was rightly convicted by the trial Court and prayed that appeal of appellant/accused may be dismissed.

9.       We have heard learned counsel for appellant and learned Addl. P.G and carefully examined the entire evidence produced by the prosecution and On perusal of the evidence of complainant and mashir who are star witnesses of the prosecution, we are of the view that the prosecution failed to establish the recovery and arrest at the spot as alleged in the case. The complainant in his examination-in-chief deposed that they saw one person who was cutting Poppy while, he in cross-examination deposed that the poppy crop was cut by his staff within 30 minutes. Complainant in his cross-examination deposed that the color of Kanta was black and it was arranged from locality, while mashir deposed that they weighed the property through computerized Kanta which is available with them in kit box. Complainant in his cross-examination deposed that they returned back at PS at 03.00 p.m, while mashir in his cross examination deposed that they came back at PS at 1600 hours. The IO in his cross- examination deposed that he visited the place of incident in presence of mashirs. On this point, co-mashir PC Barkat Ali in his examination-in-chief deposed that complainant shown the place of incident to the IO in his presence and in presence of co-mashir PC Mushtaque and prepared such memo at 1430 hours, while PC Mushtaque in his examination-in-chief has not deposed a single word regarding visiting the place of incident, preparation of mashirnama and signature thereon, rather in his cross examination deposed that “he is not mashir of inspection of wardat” The noted contradictions are sufficient to discard the direct evidence of above witnesses. The Investigation Officer in his examination-in-chief deposed that on 02.04.2019, he de-sealed the property and taken samples two kilograms from each bag for sending the same to the Chemical Examiner Laboratory for examination and report, while the permission letter available at page No.49, issued by SSP Khairpur vide letter No. PB/J/538 Khairpur to Chemical Examiner Laboratory Sukkur @ Rohri showing its issuance date as 01.04.2018, one day prior to the date of de-sealing the property, yet the letter contains net weight of each borta as described in the mashirnama and FIR. As per the case of prosecution the recovery was affected on 29.03.2019, whereas the chemical examiner’s report reflects that samples received on 03.04.2019, giving rise to question where the samples were in the intervening period of which there is no evidence. The IO has not deposed a single word that either the samples were deposited in the Malkhana or the same were handed over to anyone for keeping the same in safe custody, which creates very serious doubt in the case of prosecution. Moreover, the investigation of the case in hand has been carried out in a casual and stereotyped manner and the safe custody of the recovered property was not proved by the prosecution by producing any evidence in this respect as discussed above and the Malkhana Incharge was also not examined at the trial so also entry of register No.19 has not been produced. In view of the above it can safely be held that the safe custody of samples has not been proven by the prosecution.

10.     In our considered view, prosecution has failed to prove that the recovered property was kept in safe custody for the aforementioned period. Even positive report of the chemical examiner would not prove the case of prosecution. 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 Court are always required to follow the legally established position that it is intrinsic worth and probative value of the evidence which plays a decisive role in determining the guilty or innocent 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).

11.     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 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 is 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 and 2 others vs. The State (PLD 2021 SC 600).

12.     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 perspective 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 appellant by way of impugned judgment could not sustain, the same are set-aside and the appellant is acquitted of the charge.

13.     These are the reasons of our short dated 25.10.2023.

 

                                                                                                J U D G E

J U D G E