IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal No.D-36 of 2023

Present:

Khadim Hussain Tunio, J.

Irshad Ali Shah, J.

Appellant : Javed Ali son of Imdad Ali Shah

Through Mr. Amanullah Luhur, Advocate

The State : Through Mr. Aitbar Ali Bullo, D.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 1100 grams of Charas by the police party of P.S, A-Section, Kandhkot, led by SIP Ghulam Shabir Mirani, 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 four 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. He did not examine anyone in his defence, however, examined himself on oath by stating that he deals with the scrap, which he used to send by trucks; the police demanded Bhatta from him for such action, which he failed to pay; consequently, he was involved in this case falsely by foisting Charas upon him. After the trial, he was convicted u/s.9 (c) of CNS Act, 1997 and sentenced to undergo rigorous imprisonment for nine years and to pay a fine of Rs.80,000/- and in default in payment of the fine, to undergo simple imprisonment for two years, with the benefit of Section 382-B Cr.PC, by learned 1^st Additional Sessions/MCTC/Special Judge for CNS, Kandhkot, vide judgment dated 15.07.2023, 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 on account of his failure to pay them Bhatta and evidence produced by the prosecution 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, which is opposed by learned D.P.G for the State by supporting the impugned judgment.

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

4. It was stated by complainant SIP Ghulam Shabir and PW/Mashir PC Muhammad Tayyab that on 12.04.2023, they with the rest of the police personnel were conducting patrol through police mobile within the jurisdiction of P.S A-Section Kandhkot, when reached adjacent to Degree College, there they found standing the appellant with a shopper, who on seeing them put an attempt to escape but was apprehended after chase; on inquiry, he disclosed his name to be Javed Ali Shah, the shopper which he was having, was found containing Charas in the shape of four pieces; those were weighed to be 1100 grams; it was secured under memo prepared at the spot and the appellant with the recovery so made from him was taken to P.S, A-Section Kandhkot, where he was booked in the present case formally; the Charas was kept in Malkhana and further investigation was conducted by I.O/SIP Akbar Ali. PW/PC Faisal Akhtar 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 evidence does not disclose the date of its deposit; such omission could not be overlooked. The appellant allegedly was found standing by the side of the College a public place, yet no independent person was associated by the complainant to witness his arrest and recovery despite consuming 50 minutes in Karwai at the place of incident, as is stated by PW/Mashir PC Muhammad Tayyab, which appear to be surprising. It is stated by I.O/SIP Akbar Ali that on the investigation, he visited the place of incident, prepared such memo, and recorded 161 Cr.PC statements of the PWs, and then dispatched the Charas to the Chemical Examiner on the next date through PW/PC Barkat Ali and after usual investigation, submitted challan of the case before the Court having jurisdiction. PW/PC Barkat Ali has supported the I.O/SIP Akbar Ali in his version to the extent that he took the Charas to the Chemical Examiner. Surprisingly, no independent person was inquired about or associated by the said I.O/SIP Akbar Ali 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.

5. 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.

6. In the case of Tariq Parvez Vs. The State (1995 SCMR-1345), it has been held by the 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”.

7. 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.

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

JUDGE