IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No. D –08 of 2022

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

Appellant : Gulzar Ali son of Hubdar alias Qurban Ali

Solangi/Shaikh, Through Mr. Nisar Ahmed G.

Abro, Advocate.

The State : Through Mr. Ali Anwar Kandhro, Addl. P.G.

Date of hearing: 09.5.2023

Date of decision: 09.5.2023

JUDGMENT

ARBAB ALI HAKRO, J;- This Criminal Appeal under Section 48 of the Control of Narcotic Substances Act, 1997 (“the Act of 1997”), filed by Gulzar Ali, the appellant, is directed against the judgment dated 28.02.2022, passed by learned Additional Sessions Judge-I/Special Judge(Narcotics), Dadu, whereby the appellant has been convicted under Section 9(c) of the Act of 1997 and sentenced to suffer rigorous imprisonment for 04(four) years 6(six) months and to pay a fine of Rs.20,000/- and in default of payment thereof to further undergo 05(five) months simple imprisonment, in case FIR No.52 dated 25.10.2021, registered under Section 9(c ) of the Act of 1997, at Police Station Sita Road, District Dadu. The benefit of Section 382-B Cr.P.C. has been extended to the appellant.

2. The case of prosecution is that on 25.10.2021,
ASI Chanessar of Police Station Sita Road District Dadu alongwith
Constables Yaseen, and Raja Sultan left for patrolling at 3:30 p.m. vide entry No.12 in the official vehicle driven by Constable Ali Murtaza. When they reached at Radhan stop Sita Road, they received spy information about a person selling Charas near Masooman-jo-Muqam(Graveyard). The police party immediately proceeded towards informed place and on reaching, found one person standing there having black coloured shopper, who seeing them, tried to run away, but was rounded up at 5:00 p.m. with black coloured shopper on enquiry; he disclosed his name as present appellant. His search was conducted, which yielded to the discovery of four currency notes of Rs.50/- each, total of Rs.200/, from the side pocket of his shirt. The shopper secured from him and, on opening it, was found containing 4(four) small and big size pieces of Charas weighing 1040 grams. 20(twenty) grams from it was taken as samples and sealed, while the remaining 1020 grams were sealed separately. Nobody from the public was seen around; complainant nominated Constables Yaseen and Raja Sultan as mashirs and in their presence accused was arrested under a mashirnama attested by them, and then the accused, together with the recovery made from him, was taken to the Police Station where the case was registered against him by the complainant on behalf of State.

3. After completion of investigation, complete challan was drawn and accordingly sent up for trial. To substantiate its' version, the prosecution placed reliance on the account/ statements of as many as 03(three) witnesses. On close of prosecution evidence, the statement of the appellant was recorded under Section 342 Cr.P.C, wherein he professed innocence and false implication; however, he neither opted to be examined on oath as provided under Section 340(2) Cr.P'.C nor wished to produce defence evidence. After hearing arguments, the trial Court arrived at the conclusion that the prosecution has successfully brought home charge against the appellant, as such, vide impugned Judgment dated 28.02.2022, convicted and sentenced the appellant as mentioned above. Hence, the instant appeal against the judgment of conviction.

4. It was contended by the learned counsel for the appellant that the appellant is innocent and has been involved in this case falsely by the Police; otherwise, he has nothing to do with the alleged incident, and evidence of the witnesses being doubtful has been believed by learned trial Court without lawful justification and there is inconsistency in the evidence of the complainant and the mashir, therefore, he is entitled to be acquitted by extending him the benefit of doubt, which is opposed by learned Addl. P.G. for the State by supporting the impugned judgment.

5. We have attentively heard learned counsel for the appellant as well as the learned Addl. Prosecutor General representing the State and carefully reviewed the record. Through our observation, we have discovered that the prosecution's evidence is not consistent and rather contradictory. This is evident as both the complainant and mashir, who were eyewitnesses, have provided different routes for arriving at the place of recovery. Further, the complainant, in his evidence, stated that there would be a distance of about two kilometers between the place of information and the place of incident, while mashir/eyewitness belied him by stating that there would be a distance of about 20 to 25 paces between the place of information and place of incident. The complainant stated that they saw the accused at the distance of 25 to 30 feet, while mashir falsified him by stating that they saw the accused at the distance of 15 paces. The complainant has stated that PC Raja Sultan firstly apprehended the accused, while mashir has fallacious him by stating that ASI Chanessar Khan (complainant) firstly apprehended the accused. The trial Court had completely overlooked above grave and serious infirmities and contradictions in the evidence of eyewitnesses. Besides, it is a case of prosecution that 20 grams of Charas was separated and sealed as sample, while remaining 1020 grams Charas was sealed separately, whereas the complainant in his cross-examination has admitted that entry No.19 does not show the number of pieces of Charas recovered from the accused. He also admitted that four small and big size pieces of Chars were recovered from the possession of the accused, while Chemical Examiner Report (Ex.5/E) shows that one sealed parcel containing five black, brown pieces was received in the Chemical Examiner Office. The recovery took place on 25.10.2021, and the sample parcel was delivered to the office of the chemical examiner on 28.10.2021 by PC-1448 Nisar Ahmed. However, during the trial, Nisar Ahmed and the ‘Moharrar’ of the Malkhana were not presented as witnesses, nor was any entry of the dispatch of the case property produced in evidence. It cannot be confirmed if the sample parcels were securely kept in the Malkhana from 25.10.2021 to 28.10.2021. The location and custodian of the sample parcel in question remain shrouded in mystery. The prosecution failed to adequately establish the secure custody and transmission of the sample parcel, thereby demonstrating a noteworthy flaw in their case. This deficiency alone warrants extending the benefit of the doubt to the appellant. It is important to observe that within the context of Section 9(c) of the Act of 1997, the onus falls upon the prosecution to meticulously demonstrate the progress of events from the point of discovery through the preparation of sample parcels, the secure safeguarding of said parcels, and the secure conveyance of the same to the relevant laboratory. The prosecution bears the onus of establishing each link in the chain of evidence for such offenses. The absence of any such link would result in the exoneration of the accused due to the application of the doctrine of benefit. The credibility in this respect can be predicated on cases of Qaiser Khan vs. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana vs. The State and another (2019 SCMR 1300), The State through Regional Director ANF vs. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others vs. The State (2015 SCMR 1002) and Amjad Ali Vs. the State (2012 SCMR 577). In the aforementioned cases, it was determined that when a prosecution presents faults of the nature specified above, it is impracticable to affirm with absolute conviction that the prosecution has fully proved its case against the accused beyond a reasonable doubt. The present case against the appellant, as put forward by the prosecution, has proven inconclusive, with several critical inadequacies rendering his conviction unsustainable.

7. In light of the discussed circumstances, a sound and reliable conclusion can be drawn that the prosecution has failed to provide conclusive evidence in support of its case against the appellant. Consequently, the appellant is entitled to the benefit of doubt. In the case of Muhammad Mansha vs. The State(2018 SCMR 772), it has been held by the 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".

8. Having concluded above, instant criminal appeal was allowed by us through a short order of even date, whereby the conviction and sentence awarded to the appellant by way of impugned judgment were set-aside, and he was acquitted of the charge. Above are the reasons whereof.

JUDGE