IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Jail Appeal No.D-16 of 2017.

PRESENT:

Mr. Justice Khadim Hussain M. Shaikh,

Mr. Justice Amjad Ali Sahito,

Appellant Ghulam Sarwar @ Sarwar, through Mr. Ashfaque Hussain Abro, Advocate.

Respondent The State through Mr. Sharafuddin Kanhar, Assistant Prosecutor General.

Date of hearing: 17.04.2018.

Date of Decision: 17.04.2018.

J U D G M E N T

Amjad Ali Sahtio –J. The captioned appeal is directed against the judgment dated 13.03.2017, passed by the learned Sessions Judge, Shikarpur/ Special Judge, Special Court for Control of Narcotic Substances, in Special Case No.342 of 2016 re-State v. Ghulam Sarwar @ Saroo, emanating from FIR No.28 of 2016 registered at Police Station Stuart Ganj, Shikarpur whereby appellant Ghulam Sarwar @ Saroo son of Sher Muhammad Shaikh has been convicted for offence under Section 9(c), Control of Narcotic Substances Act, 1997 and sentenced to undergo R.I. for 04 years and 06 months, and to pay fine of Rs.20,000/- and in default in payment of fine to undergo S.I. for 05 months more. He, however, has been extended the benefit of Section 382-B, Cr.P.C.

2. Briefly the facts of the case are that on 21.04.2016 a police party headed by complainant/SIP Imam Bux Lashari while was on patrolling when they reached at Khairo-Jamal Octroi situated on link road leading from Wagno Gate to Baid-Khaman bypass apprehended the present appellant, recovering a shopper from his possession, containing 1800 grams of charas, which was sealed at the spot and such mashirnama was prepared in presence of mashirs HC Nadeem Ahmed and PC Mahboob Ali. Then the arrested accused and the property were brought at Police Station, where the subject FIR was lodged. After usual investigation the appellant was sent up with the challan to face his trial.

3. After completing all the formalities, a formal charge was framed against the appellant at Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea Ex.3.

4. In order to prove its case, the prosecution examined complainant SIP Imam Bux Lashari as PW-1 at Ex.4, who produced mashirnama of arrest and recovery, F.I.R., true copies of departure and arrival entries, memo of wardat and report of the Chemical Examiner at Ex.4-A to 4-E- respectively; mashir HC Nadeem Ahmed as PW-2 at Ex.5. Thereafter, the prosecution closed its side. The statement of appellant under Section 342, Cr.P.C was recorded at Ex.10, wherein he, denying all the allegations leveled against him, professed his innocence. He, however, neither examined himself on oath under the provisions of Section 340(2), Cr.P.C nor did he examine any person as his defence witness. At the conclusion of trial and after hearing the parties, learned trial Court has convicted the appellant, as discussed in paragraph-1 supra.

5. It is, inter alia, contended by the learned Counsel for the appellant that the appellant is innocent and he has been falsely implicated in this case by the SHO due to malafide and ulterior motives; that there are material contradictions in the evidence led by the prosecution; that no independent person was associated with the recovery proceedings despite the fact that place of incident is thickly populated area; and, that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. He, therefore, prays that the appeal may be allowed and the appellant may be acquitted of the charge.

6. Learned Assistant Prosecutor General, referring to the contradictions in the evidence led by the prosecution and endorsing the contentions of the learned Counsel for the appellant, has frankly conceded to the prayer of learned Counsel for the appellant for acquittal of the appellant.

7. We have considered the submissions of learned Counsel for the appellant and learned Assistant Prosecutor General and have gone through the evidence with their assistance.

8. On evaluating the evidence brought on record, we find that no sincere effort has been made by the police to associate any independent person to the recovery proceedings; PC Meer Khan, who was given the alleged narcotic substance on 22.4.2017 has not been examined by the prosecution to show safe custody and safe transmission of the alleged narcotic substance; there are material contradictions in the evidence led by the prosecution, such as, PW-1 complainant SIP Imam Bux Lashari as well as mashir HC Nadeem Ahmed have stated that the memo of recovery, vardat and FIR were written by complainant but from bare perusal of these documents it clearly indicates that the hand writing of these documents is different. The complainant as well as mashir have not stated a single word about the availability of computerized scale with them, then question arises how and from where the scale was brought. The complainant has stated that the grave yard is situated on north and east of the Khairo Jamal Octroi while the mashir HC Nadeem Ahmed stated that the grave yard is situated at east of the Khairo Jamal Octroi. The complainant has stated that at the time of preparation of memo of arrest and recovery the accused was in the custody of both the mashir but the mashir HC Nadeem Ahmed has stated that at the time of preparation of memo of arrest and recovery the accused was in his custody.

Apart from above material infirmities and contradictions in the prosecution evidence rendering the prosecution case highly doubtful, there are several other infirmities and discrepancies, which need not to be discussed just to save the space. It needs no reiteration that a single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, benefit thereof is to be extended to the accused not as a matter of grace or concession but as 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 the above, we are of the considered view that the aforesaid infirmities and discrepancies in the evidence of prosecution, rendering this case highly doubtful were not at all considered by the trial Court while passing the impugned judgment, convicting and sentencing the appellant; and, thus the impugned judgment suffers from misreading and non-reading of the evidence. In our humble view, the conviction and sentence awarded to the appellant cannot sustain, for, the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. Accordingly, the appeal is allowed and conviction and sentence awarded to the appellant vide impugned judgment dated 13.03.2017 are set aside and the appellant is acquitted of the charge. The appellant is on bail, his bail bond stands cancelled and his surety is discharged.

10. Above are the reasons of our short order dated 17.4.2018.

Judge

Abid Kazi PS/**