2018 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

The Special Judge Sessions Judge-III, Umerkot in the Special Case No. 04/2016 (Re. State v. Muhammad Sultan Makrani) has convicted the appellant by passing the impugned judgment dated 11th August, 2016. The operating part of the impugned judgment is as under:- "Taking into consideration, the findings on the point No. 01, facts and circumstances of the case as enumerated above, I am of the considered view that the prosecution has proved its case beyond a shadow of doubt. Therefore I convict and sentence accused Mohammed Sultan alias Machar under section 9(b), Control of Narcotic Substances Act, 1997, to suffer R.I. for five (05) years and to pay fine of Rs. 10,000/-. In case of default of fine amount, he shall suffer S.I for three months more. The benefit of section 382-B, Cr.P.C. is also extended to accused."

2. We have heard the arguments and perused the record.

3. In the instant case, the appellant, was convicted because allegedly charas was recovered from his possession. As per prosecution case, the recovered quantity of narcotics was found in the exclusive possession of the appellant. It is the case of the prosecution that they apprehended the appellant during routine patrolling and due to non-availability of private witnesses, the official witnesses were appointed as the marginal witness of arrest and recovery. It is also the case of the prosecution that from the possession of the appellant 470 grams charas was recovered from which but they separated only 10 grams of charas from the recovered quantity.

4. In the instant case, it is worth noting that the mode and style of sampling has not been described by the complainant either in the 'memo of arrest and recovery' or during deposition. It is quite obvious from the prosecution case that they apprehended the appellant on the tip of information but they did not try to associate a private witness. The learned counsel for the appellant has pointed out certain contradictions, which are also significant and lethal for the prosecution case. The complainant and witnesses are not in agreement about the important aspect of the case regarding arrest and recovery. Nevertheless, there are other aspects of the case required consideration, which can be fatal for the case of prosecution. The report of chemical examiner describes that that the case property was received by him on 01-04-2016 but it is silent about the date of sending the case property. The letter of sending the case property is available on the record (Ex. 5-A) and it has endorsement of receiving the property on 1-4-2016 but the date of the letter is mentioned with a different pen in blue ink on the carbon copy which shows the date 31-03-2016. This aspect of the case throws heavy hazes of doubts on the prosecution case. The complainant and witnesses both says that they reached at the place of incident on a tip of spy information. In such a situation, when they had beforehand information, they should try to associate a private person for the purpose of arrest and recovery but they did not do so. It also casts doubt on the entire prosecution case.

5. In the existing position of affairs, we are of the view that the case of the prosecution is not free from doubt and as per established norms of criminal Justice, the benefit of doubt should go in favour of the accused. Resultantly, the instant appeal is allowed as per our short order dated 27-09-2017 and the above are the reasons for the same. MQ/M-121/Sindh Appeal allowed.