IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Appeal No. D-74 of 2023

PRESENT:

Mr. Justice Muhammad Saleem Jessar,

Mr. Justice Jawad Akbar Sarwana,

Appellant: Through Mr. Muhammad Afzal Jagirani,

Deedar Ali Bhayo Advocate.

Respondent: The State through Mr. Aitbar Ali Bullo,

Deputy Prosecutor General, Sindh.

Date of hearing: 30.01.2024

Date of decision: 30.01.2024

J U D G M E N T

Muhammad Saleem Jessar, J.- Appellant Deedar Ali son of Baloo Khan, by caste Bhayo, through this appeal has challenged the judgment dated 31.10.2023, passed by learned 1^st Additional Sessions Judge/ MCTC/Special Judge for CNS Cases, Kandhkot, in Special CNS Case No.28 of 2023 Re-The State v. Deedar Ali Bhayo, based on Crime No.50 of 2023 registered at Police Station Buxapur, whereby the trial Court has convicted the appellant for offence under section 9(c), CNS Act, 1997 and sentenced him to suffer rigorous imprisonment for nine (09) years, with fine of Rs.80,000/- (Rupees eighty thousand only) and in default whereof to undergo simple imprisonment for two years more. Benefit of section 382-B, Cr.PC was extended to the appellant.

2. Briefly, the prosecution case is that on 04.06.2023, a police posse of PS Buxapur headed by SIP Muhammad Ismail apprehended appellant Deedar Ali who was found in possession of 2000 grams of charas placed within a black shopper. The case property was sealed on the spot and such memo of prepared. Then he was brought to the police station where FIR was registered against him on behalf of State.

3. After usual investigation, the appellant/accused was sent up to stand trial. After providing relevant papers to the appellant, a formal charge was framed against him by the trial Court, to which he pleaded not guilty and claimed trial. At trial, the prosecution examined in all five witnesses, namely, PW-1 SIP Muhammad Ismail (complainant), PW-2 HC Muhammad Rasheed (mashir), PW-3 SIP Nawab Khan (Investigating Officer), PW-4 WPC Muhammad Tahir (incharge Malkhana) and PW-5 PC Muhammad Rafique (Dispatch Rider), they produced documents and other artefacts in their evidence, which were duly exhibited. In his statement recorded by the trial Court u/s 342, Cr.P.C, the appellant denied the recovery of contraband charas from him, false implication at the hands of Police and professed his innocence. He did not examine himself on oath in disproof of the charge; however, one Abdul Ghaffar was examined by him in his defence.

4. Learned trial Court, after considering the material available before it, handed down the impugned judgment and sentenced the appellant, as mentioned hereinabove.

5. The learned Counsel for the appellant has mainly contended that in fact on 26.05.2023, at 2.00 p.m. the appellant was apprehended and taken away by police personnel of different police stations of District Kashmore at Kandhkot from a hotel situated at Unar Stop on main Indus Highway in presence of his uncle Abdul Ghaffar and relatives Zahid and Sajid and was illegally confined, on that the uncle of the appellant, namely, Abdul Ghaffar Bhayo had filed an application under Section 22-A & 22-B, Cr.P.C on 01.6.2023 being Cr. Misc. Application No.798/2023 before the learned Sessions Judge/ Justice of Peace, Kashmore at Kandhkot seeking directions for registration of FIR against those police officials; however, said application was dismissed vide order dated 30.06.2023. He has further contended that such defence plea was specifically taken by the appellant in his statement under Section 342, Cr.P.C and copies of said documents were produced by him at Ex.9-A & 9-B, besides, the appellant also DW Abdul Ghaffar Bhayo also fully supported above facts, but the same were discarded by the learned trial Court.

6. The learned Deputy Prosecutor General, after consulting the record, though supported the impugned judgment; however, he could not controvert the documentary adduced placed by the appellant on record in his statement under Section 342, Cr.P.C.

7. We have heard learned Counsel for the parties and have perused the material available on record.

8. It appears from the perusal of Ex.9-A & 9-B that the uncle of the appellant, namely, Abdul Ghaffar Bhayo had filed an application under Section 22-A & 22-B, Cr.P.C before the learned Sessions Judge/Justice of Peace, Kashmore at Kandhkot on 01.06.2023 i.e. three days prior to the registration of FIR of this case, stating therein that on 26.5.2023 while he(Abdul Ghaffar), appellant Deedar Ali and relatives Zahid and Sajad were having tea, at a hotel situated at Unar Stop of main Indus Highway, where at about 2.00 p.m. the police personnel of different police stations of District Kashmore at Kandhkot emerged and took away appellant Deedar Ali with them. It further appears that SHO PS Ghouspur filed his report before the learned Sessions Judge/Justice of Peace, Kashmore at Kandhkot, mentioning that the appellant was arrested on 04.06.2023 by police of PS Buxpur in FIR No.50/2023 of said police station registered u/s 9(c), CNS Act, 1997. In view of such report of SHO PS Ghouspur, such application of the uncle of the appellant was dismissed by the learned Justice of Peace concerned, totally ignoring the fact that the arrest of the appellant was shown and alleged by his uncle, in his 22-A & 22-B, Cr.P.C application filed on 01.06.2023, much prior i.e. on 26.5.2023. The said application was adjourned to 08.06.2023 for report from SHO PS Ghouspur and DSP Complaint Cell at Kandhkot. Such documentary evidence available on the record appears to have been discarded by the learned trial Court without discussing and assigning any good reason to it. Since it has already come on record that the appellant was forcibly taken away by the police on 26.05.2023 and for that such application filed by the uncle of the appellant was already pending adjudication before the learned Sessions Judge/Justice of Peace, Kashmore begs the question when an application regarding the accused was still pending before the Justice of Peace, how did he (the accused) managed to get himself involved in the incident of 04.06.2023. It is sufficient to hold that the entire exercise of arrest and recovery of the contraband material from the possession of appellant in the instant case is highly doubtful. It is well-settled principle of law that benefit of doubt is to be extended to the accused not as a matter of grace but as a matter of right. Reliance in this context can be placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein Hon’ble Supreme Court of Pakistan has held that:

“It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”

9. In view of above facts and circumstances, we are of the considered view that the prosecution has in fact failed to prove its case against the appellant beyond reasonable doubt. Therefore, instant appeal was allowed by us vide short order dated 30.01.2024, whereby the conviction and sentence awarded to appellant Deedar Ali Bhayo by the learned trial Court vide impugned judgment dated 31.10.2023 were set aside and he was acquitted of the charge. Above are the detailed reasons for said short order.

JUDGE

Qazi Tahir PA/*