IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No.D-26 of 2024

Present:

Khadim Hussain Tunio, J.

Irshad Ali Shah, J.

Appellant : Ghulam Murtaza s/o Mehboob Ali Jakhrani

Through Mr.Riaz Hussain Khoso, Advocate

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

Date of hearing : 30.07.2024

Date of decision : 30.07.2024.

JUDGMENT

IRSHAD ALI SHAH-J; As per the prosecution, on arrest from the appellant were secured 1100 grams of Charas by the police party of P.S B-Section Kandhkot, led by SIP Muhammad Khan Samtio, 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 apprehended by the police and involved firstly in an attempted murder case, FIR whereof was canceled under “C” class, his custody then was handed over to Rangers officials, he then was taken back by the police and then was involved in the present case and petition for his release from wrongful custody was also filed by his relative before the High Court of Sindh, Circuit Court, Larkana. To substantiate such a plea, he produced copies of FIR Crime No.271/2023, u/s.324,452,427 & 149 PPC of P.S A-Section Kandhkot, and the petition. 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 nine years and to pay a fine of Rs.80,000/- and in default in payment of the fine, to undergo simple imprisonment for two years, with the benefit of Section 382-B Cr.PC, by learned 1^st Additional Sessions/MCTC/CNS, Kandhkot, vide judgment dated 23.04.2024, 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 lawful justification. By contending so, he sought acquittal of the appellant 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 reasonable doubt and the offence which he has committed, is affecting the society at large.

4. Heard arguments and perused the record.

5. It was stated by complainant SIP Muhammad Khan Samtio and PW/Mashir PC Lehaq that on the date of the incident, they with the rest of the police personnel were conducting a patrol when reached Kamil Shah Laro, there they found the appellant standing in a suspicious position; he was apprehended, from him was secured a shopper; it was found containing Charas in the shape of two big and one small pieces; those were weighed to be 1100 grams; those were sealed at the spot, a memo of arrest and recovery was prepared, the appellant with the recovery so made from him was then taken to P.S B-Section Kandhkot, where he was booked in the present case formally and further investigation of the case was conducted by I.O/SIP Khawand Bux Awan. On asking, they stated that forty minutes were spent by them in Karwai at the place of the incident. Surprisingly, no independent person passed during such a period to have been associated by them with the investigation to maintain transparency. The evidence of PW/ASI Ghulam Hussain is only to the extent that he kept property in Malkhana; his evidence hardly needs any discussion. It was stated by I.O/SIP Khawand Bux that during investigation, he recorded 161 Cr.PC statements of the witnesses, visited the place of incident, and prepared such memo. Surprisingly, such a visit was undertaken by him without associating any independent person. It was further stated by him that then he dispatched the Charas to the Chemical Examiner through PW/PC Nadar Ali; his evidence is to such extent. Such dispatch however was made on the 3^rd day of its recovery. No plausible explanation for such delay is offered, therefore, it could not be overlooked. As per the report of the Chemical Examiner, the pieces of Charas allegedly secured from the appellant were weighed to be 990 grams; it is contrary to the claim made by the complainant and his witness that those were weighed to be 1100 grams. Where did go 110 grams of Charas? No explanation for its missing is offered by the prosecution, which suggests its manipulation. The appellant during course of his examination u/s.342 Cr.PC has pleaded innocence; his plea 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 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. 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 charged offence and to be released forthwith, if not required to be detained in any other custody case.

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

JUDGE