IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Crl. Appeal No. D –47 of 2020.

Before;

Mr. Justice Khadim Hussain Tunio,

Mr. Justice Irshad Ali Shah.

Appellant: Nadir Ali s/o Yar Muhammad by caste Buriro, Resident of Joung Colony, Taluka Daharki, District Ghotki.

(Now confined at C.P Sukkur).

Through. Mr. Nawab Ali Pitafi, advocate.

The State: Mr. Zulfiquar Ali Jatoi, Additional Prosecutor General.

Date of hearing: 27-04-2021.

Date of decision: 27-04-2021

JUDGMENT

IRSHAD ALI SHAH, J.- It is the case of the prosecution that on arrest from the appellant, was secured 04 KGS of charas in shape of five pieces by police party of PS Daharki led by ASI Muhammad Ramzan Korai, for that he was booked and reported upon.

2. At trial the appellant did not plead guilty to the charge and prosecution to prove it, examined PW-1 complainant ASI Muhammad Ramzan Korain, PW-2 mashir PC Abdul Ghaffar, PW-3 ASI Manzoor Ahmed, PW-04 SIO/SIP Ghulam Asghar and then closed the side.

3. The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence by stating that he has been involved falsely by the police by foisting charas upon him. He in order to prove his innocence produced a copy of direct complaint filed by him against police personnel before learned Civil Judge & Judicial Magistrate Daharki. However, he neither examined any one in his defence nor himself on oath in terms of section 340 (2) Cr.P.C.

4. On conclusion of trial, the appellant for an offence punishable u/s 9 (C) of CNS Act, 1997 was convicted and sentenced to undergo rigorous imprisonment for six years and six months and to pay fine of Rs. 30,000/- and in default whereof to undergo simple imprisonment for six months by learned 1^st Additional Sessions Judge/Special Judge CNS (MCTC) Ghotki vide his judgment dated 22-12-2020, which is impugned by the appellant before this Court by preferring the instant Crl. Appeal.

5. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police, on account of previous enmity; that there is no independent witness to the incident; that the case property has been subjected to chemical examination with delay of 24 days; that none has been examined by the prosecution to prove the safe custody of the charas and evidence of the prosecution witnesses being doubtful in its character has been believed by learned trial Court without assigning cogent reason; therefore, the appellant is entitled to his acquittal by extending him benefit of doubt. In support of his contention he relied upon cases of Saddam Hussain Vs. The State (2018 MLD 1025) and Nazar Muhammad @ Nazroo Vs. The State (2018 YLR 1992).

6. Learned A.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant Crl. Appeal by contending that the prosecution has proved its case against the appellant beyond shadow of doubt by examining the complainant and his witnesses. In support of his contention, he has relied upon cases of Budho and two others Vs. The State (2018 P.Cr.L.J 1399) and Gada Ali Abro Vs. The State (2019 MLD 962).

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

8. Admittedly, the complainant with his police party went at the place of incident on spy information, yet he failed to associate with him independent person to witness the possible arrest and recovery, such failure on his part without lawful justification could not be ignored. Neither any entry is produced nor anyone is examined by the prosecution, which may suggest that the charas allegedly secured in the present case was kept in ‘malkhana’ in safe custody prior to its transmission to the chemical examiner, such omission on part of prosecution could not be over looked. The charas allegedly secured from the appellant has been subjected to chemical examination with delay of about 24 days to its recovery. No plausible explanation has been offered by the prosecution, which may justify over looking such delay. The appellant has alleged enmity with police personnel and in order to prove such enmity, has produced the copy of direct complaint. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he is found enitlted.

9. 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".

10. The case law which is relied upon by learned APG for the State is on distinguishable facts and circumstances. In case of Budho and others (supra) the presence of accused in car which was found containing charas was not denied. In the instant matter, the appellant has denied the allegation of prosecution by claiming false implication. In case of Gada Ali Abro (supra) accused failed to prove any ill will on the part of police to involve him in that case falsely. In that instant matter, the appellant has produced copy of direct complaint, which prima-facie suggests his enmity with police.

11. In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellant 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 the learned trial court; he is in custody and shall be released forthwith in the presence case.

12. The instant Crl. Appeal is disposed of in above terms.

J U D G E

Nasim/Steno