IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No.D-16 of 2023

Present:

Khadim Hussain Tunio, J.

Irshad Ali Shah, J.

Appellant : Bijar son of Abdul Nabi Jatt

Through Mr. Rafique Ahmed K.Abro, Advocate

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

Date of hearing : 09.07.2024

Date of decision : 09.07.2024.

J U D G M E N T

IRSHAD ALI SHAH-J; It is the case of the prosecution that on arrest from the appellant, secured 4000 grams of Charas by the police party of P.S Sijawal, led by ASI Zulfiqar Ali, for which he was booked and reported upon. At trial, the appellant did not plead guilty to the charge, and the prosecution to prove the same, examined five witnesses and then closed its’ side. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that he was arrested by the police much before his actual involvement in the present case and application for his release from wrongful custody was made by his relative before the Sessions Court, Qamber-Shahdadkot at Qamber and this Court. To substantiate such a plea, he has produced certain documents. However, he did not examine anyone in his defence or himself on oath. After the trial, he was convicted u/s.9 (c) of CNS Act, 1997 and sentenced to undergo rigorous imprisonment for fourteen years and to pay a fine of Rs.200,000/- and in default in payment of the fine, to undergo simple imprisonment for six months, with the benefit of Section 382-B Cr.PC, by learned 1^st Additional Sessions/CNS Judge, Qamber, vide judgment dated 22.02.2023, which the appellant has impugned before this Court by preferring the instant criminal appeal.

2. It is contended by learned counsel for the appellant that the appellant is innocent and has been involved in this case falsely by the police by foisting contraband substance upon him and the evidence of the PWs being doubtful has been believed by learned trial Court without assigning the cogent reasons, therefore, the appellant is entitled to be acquitted of the charge by extending him the benefit of the doubt.

3. Learned Addl.P.G for the State by supporting the impugned judgment has sought dismissal of the instant criminal appeal by contending that the prosecution has been able to prove its case against the appellant beyond a shadow of doubt and the offence which he has committed, is affecting the society at large.

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

5. It was stated by complainant ASI Zulfiqar Ali and PW/Mashir PC Abdul Qayoom that on 13.06.2022, they with the rest of the police personnel were conducting patrol through police mobile within the jurisdiction of P.S Sijawal, when reached Chutta Khan Mastoi waiting room, there at about 1700 hours, they found standing the appellant in suspected manner, he was having a plastic shopper in his hand, who on seeing us went inside the waiting room, was apprehended, on inquiry he disclosed his name to be Bijar, the shopper which he was having was secured and it was found containing four slabs of Charas, each one was weighed to be 01 K.G, total 04 K.Gs, those were sealed under memo prepared at the spot and the appellant with the recovery so made was taken to P.S Sijawal, where he was booked in the present case formally and the contraband substance so recovered from the appellant was then kept in Malkhana. The evidence of PW/W.ASI Nek Muhammad is to such an extent. It was further stated by them that the investigation of the case was conducted by I.O/SIP Mushtaq Ali. On asking, it was admitted by them that the memo of arrest and recovery was prepared by PC Farhan Ali at the dictation of the complainant. There is nothing in such memo which may suggest that it was prepared by PC Farhan Ali at the dictation of the complainant. In such a situation, his examination was essential to prove the contents whereof, his non-examination as such could not be overlooked. It was stated by I.O/SIP Mushtaq Ali that on the investigation, he visited the place of incident, prepared such memo, and recorded 161 Cr.PC statements of the PWs, and then dispatched the Charas to the chemical examiner through PW/PC Nadir Hussain; his evidence is to such extent. It was dispatched on 16.06.2022; it was on 3^rd day to its recovery. No plausible explanation for such delay is offered, therefore, it could not be overlooked. It was further stated by him that after the usual investigation, he submitted challan of the case before the Court having jurisdiction. The appellant during his examination u/s.342 Cr.PC has not been confronted with the report of the Chemical Examiner suggesting the contraband substance allegedly recovered from the appellant to be Charas, therefore, he could not be connected with such a report legally. Besides, the appellant has pleaded innocence; such a plea on his part could not be lost sight of in the circumstances of the case.

6. The discussion involves a conclusion that the prosecution has not been able to prove its case against the appellant beyond the shadow of reasonable doubt and to such benefit, he is found entitled.

7. In the case of Haji Nawaz vs. The State (2020 SCMR 687), it has been held by Apex Court that;

“The law is settled by now that if a piece of evidence or a circumstance is not put to an accused person at the time of recording his statement under section 342 Cr.P.C then the same cannot be considered against him for the purpose of recording his conviction.”

8. 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".

9. Under the discussed circumstances, the conviction and sentence awarded to the appellant, by way of the impugned judgment, are set aside, he is acquitted of the charge and he is to be released forthwith, if not required to be detained in any other custody case.

10. Above are the reasons of our short order of even date, whereby the instant criminal appeal was allowed.

JUDGE