IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No.D-20 of 2024

Present:

Khadim Hussain Tunio, J.

Irshad Ali Shah, J.

Appellant : Faheem Hassan s/o Haji Muhammad Leghari

Through Mr.Bahadur Ali Shahani, Advocate

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

Date of hearing : 10.07.2024

Date of decision : 10.07.2024.

J U D G M E N T

IRSHAD ALI SHAH-J; It is the case of the prosecution that the appellant was found in possession of 1500 grams of Charas by the police party of P.S, Guddu, led by ASI Mukhtiar Ali, for which he was booked and reported upon. At trial, the appellant did not plead guilty to the charge, and the prosecution to prove the same, examined five witnesses and then closed its’ side. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that he was taken from Mirpur Mathelo and then was involved in the present case on the filing of an application u/s.491 Cr.PC by his brother before the Sessions Court having jurisdiction. However, he did not examine anyone in his defence or himself on oath to disprove the prosecution’s allegation. After the trial, he was convicted u/s.9 (c) of CNS Act, 1997 and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- and in default in payment of the fine, to undergo simple imprisonment for one month, with the benefit of Section 382-B Cr.PC, by learned Sessions/Special Judge for CNS, Kashmore @ Kandhkot, vide judgment dated 02.04.2024, which the appellant has impugned before this Court by preferring the instant criminal jail appeal.

2. It is contended by learned counsel for the appellant that the appellant is innocent and has been involved in this case falsely by the police by taking him from his house at Mirpur Mathelo and evidence of the witnesses being doubtful has been believed by learned trial Court without lawful justification, therefore, the appellant is entitled to his acquittal by extending him the benefit of the doubt.

3. It is contended by learned Addl.P.G for the State that the minimum sentence prescribed by law after amendment in CNS Act is nine years. By contending so, he sought remand of the case for re-writing of the judgment, for awarding the proper punishment to the appellant.

4. We have considered the above arguments and perused the record.

5. It was stated by complainant ASI Mukhtiar Ali and PW/Mashir HC Rehmatullah that on 24.12.2023, they with the rest of the police personnel were conducting patrol within the jurisdiction of P.S Guddu, when reached adjacent to Zahir Pir, there they found coming the appellant in suspicious manner, who seeing them put an attempt to go back, he was apprehended; on inquiry, he disclosed his name to be Faheem Hassan, the shopper which he was having, was found containing Charas in the shape of four pieces; those were weighed to be 1500 grams; it was secured under memo prepared at the spot. It was further stated by them that the appellant with the recovery so made from him was taken to P.S, Guddu, where he was booked in the present case formally. The Charas was kept in Malkhana and further investigation was conducted by I.O/SIP Muhammad Iqbal. PW/HC Muhammad Mureed has supported the complainant and his witness in their version to the extent that the Charas secured by them allegedly from the appellant was kept by him in Malkhana. However, the copy of Malkhana's entry which he has produced in his evidence does not disclose the date of its deposit; such omission could not be lost sight of. On asking, it was stated by the complainant that the private persons available at the spot refused to extend help. He in that respect is belied by PW/Mashir HC Rehmatullah by stating that nobody crossed the place of incident during Karwai. Such inconsistency could not be lost sight of, which has reflected adversely on the veracity of their evidence. It was stated by I.O/SIP Muhammad Iqbal that during the investigation, he visited the place of the incident, and prepared such memo. Its date of preparation is found tampered with. No explanation for such tampering is offered by the prosecution. It was further stated by him that he recorded 161 Cr.PC statements of the PWs, and on 28.12.2023 dispatched the Charas to the Chemical Examiner. As per PW/PC Shaiq Ali, he took the Charas to the Chemical Examiner on 26.12.2023. Such inconsistency could not be overlooked. Surprisingly, no independent person was inquired about or associated by the said I.O/SIP Muhammad Iqbal during the investigation, which prima facie suggests that activity on his part in the investigation was only to the extent of the table. The appellant during his examination u/s.342 Cr.PC has denied the prosecution allegation by pleading his innocence; such a plea on his part could not be overlooked in the circumstances of the case.

6. The discussion involves a conclusion that the prosecution has not been able to prove its case against the appellant beyond the shadow of reasonable doubt and to such benefit, he is found entitled; therefore, remand of the case for re-writing of the judgment for awarding proper punishment to the appellant, would be unjustified.

7. In the case of Tariq Parvez Vs. The State (1995 SCMR-1345), it has been held by the Honourable Apex Court that;

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right”.

8. Under the discussed circumstances, the conviction and sentence awarded to the appellant, by way of the impugned judgment, are set aside; he is acquitted of the charge and to be released forthwith, if not required to be detained in any other custody case.

9. Above are the reasons of our short order of even date, whereby the instant criminal appeal was allowed.

JUDGE