ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.D-03 of 2021.
_________________________________________________________________
DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE
_________________________________________________________________
Before:
Mr. Justice Irshad Ali Shah,
Mr. Justice Agha Faisal,
For hearing of main case.
18.01.2022
Mr. Habibullah Ghouri, Advocate for the appellant.
Mr. Ali Anwar Kandhro, Addl.P.G for the State.
= * = * = * = * = * =
IRSHAD ALI SHAH, J.- The appellant for being in possession of 1280 grams of Charas, was convicted under section 9(c) of the C.N.S Act, 1997 and sentenced to undergo R.I for 04 years and 06 months with fine of Rs.15000/- and default whereof to undergo S.I for five months, by learned 1st Additional Sessions Judge/MCTC/Special Judge for CNSA, Kamber @ Kamber, vide judgment dated 09.01.2021, which has been impugned by the appellant before this Court by preferring the instant criminal appeal.
2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police; there is no independent witness to the incident; the Incharge of Malkhana has not been examined by the prosecution and the evidence of prosecution witnesses being doubtful in its character has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant. In support his contention, he relied upon case of Mst.Sakina Vs. The State (2021 SCMR-451).
3. Learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of instant criminal appeal by contending that the prosecution has been able to prove its case against the appellant beyond reasonable shadow of doubt.
4. We have considered the above arguments and perused the record.
5. Complainant ASI Imdad Ali and PC Niaz Hussain were fair enough to admit that they went at the place of incident on information. If it was so, then failure on their part to associate with them an independent person to witness the incident could not be overlooked. As per report of Chemical Examiner, property has been dispatched to him on 04.11.2020; it was delivered to him by PC Muneer Ahmed on 05.11.2020, with delay of one day. What he did with the property for intervening period? No explanation to it is offered by the prosecution. The Incharge of the Malkhana has not been examined by the prosecution; his examination was necessary to exclude the possibility of tampering with the property. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the case against the appellant beyond the shadow of doubt.
6. In case of Muhammad Mansha Vs. The State (2018 SCMR-772), it has been held by the Hon’ble Apex Court that;
“4….Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".
7. In view of above, the conviction and sentence awarded to the appellant by learned trial Court by way of impugned Judgment are set aside; consequently, he is acquitted of the offence for which he has been charged, tried and convicted by learned trial Court. He is present in Court on bail, his bail bond is cancelled and surety is discharged.
8. The instant criminal appeal is disposed of accordingly.
JUDGE