THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Appeal No.551 of 2020

 

Before:                                                      

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

 

Appellant:                                        Muhammad son of Sultan through Mr. Nadir Khan Burdi advocate

Respondent:                                     The State through Mr. Muhammad Iqbal Awan Additional Prosecutor General Sindh

Date of hearing:                              06.09.2021

Date of announcement:                08.09.2021

 

J U D G M E N T

IRSHAD ALI SHAH, J- The appellant after due trial, for being in possession of 1700 grams of Charas for an offence punishable under Section 9(c) of the CNS Act 1997, has been convicted and sentenced to undergo Rigorous Imprisonment for ten years and to pay fine of Rupees Two Lacs and in case of default whereof to undergo Simple Imprisonment for two months by learned 1st Additional Sessions Judge/MCTC Malir, Karachi vide his judgment dated 25.11.2020, which is impugned by the appellant before this Court by preferring the instant 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 at the instance of local politician; that there is no independent witness to the incident; that the incharge of Malkhana has not been examined by the prosecution and the case property has been subjected to chemical examination with the delay of about three days, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt. In support of his contentions, he has relied upon the cases of Abdul Ghani and others vs. The State and others (2019 SCMR 608), Haji Nawaz vs. The State (2020 SCMR 687) and Mst. Sakina Ramzan vs. The State (2021 SCMR 451).

3.       Learned Addl. P.G for the state by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt. In support of his contention, he relied upon the cases of Tariq Mehmood vs. The State (PLD 2009 SC 39) and Mst. Sughran and another vs. The State               (2021 SCMR 109).

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

5.       As per complainant ASI Zameer Hussain, at the place of incident a lot of person gathered. None amongst them has been picked up witness the arrest of the appellant and recovery of contraband substance from him, which appears to be surprising. On arrest, as per the complainant he prepared the memo of arrest and recovery at the spot, which was witnessed by mashirs/P.Ws PI Mst. Najamun Nisa and HC Muhammad Hussain. Evidence of P.W/mashir PI Mst. Najamun Nisa is silent with regard to the preparation of memo of arrest and recovery, which casts doubt over the version of the complainant that he prepared memo of arrest and recovery at the spot. The investigation of the case was conducted by SIP Muhammad Suleman. He was fair enough to admit that the property was sent to the chemical examiner with delay of about three days. No explanation to such delay is offered. The property for intervening period as per him was kept in Malkhana. Neither Incharge of Malkhana is examined nor any document has been brought on record, which may suggest that the property allegedly secured from the appellant for intervening period was actually kept in Malkhana. 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 especially in terms of the safe custody of the narcotic.

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.       The case law which is relied upon by the learned Addl. P.G for the state is on distinguishable facts and circumstances. In the cases of Sarfaraz Ahmed (supra), the recovery of 17 K.G of heroin powder was made from the vehicle in possession of the accused. The instant case is not relating to recovery of narcotic substance from vehicle in possession of the appellant. In the case of Mst. Sughran (supra), the sentence was reduced. In the instant case, the prosecution has not been able to prove its case against the appellant beyond doubt, therefore, it would be unjustified to reduce the sentence.

 8.      For what has been discussed above, the conviction and sentence awarded to the appellant by learned trial Court by way of impugned Judgment is set-aside consequently, the appellant is acquitted of the offence for which he has been charged, tried and convicted by learned trial Court. He shall be released in present case forthwith, if he is not required to be detained in any other custody case.

9.       The instant Appeal is disposed of accordingly.

JUDGE

JUDGE