2025 PLP 1667 (YLR)

Zulfiqar Ali Sangi, J.

The appellant stands booked under Crime No. 158 of 2022 registered at Police Station Ranipur for the offence under Section 9(b) of C.N.S Act 1997 therefore, he was tried by the Court of Additional Sessions Judge-I/Special Judge for CNS, Khairpur (Trial Court) vide Special Case No.73 of 2023 Re: The State v. Lal Dino and another. After full dressed trial, the trial Court found him guilty of the charge hence convicted and sentenced him to suffer R.I for five years with fine of Rs. 30,000/=. In default thereof he was further directed to suffer S.I for three months with benefit of Section 382(b) Cr.P.C in terms of judgment dated 17.02.2024 which is assailed through this jail appeal whereby appellant prays for setting aside the impugned judgment and seeks acquittal.

2. Briefly the prosecution case against the appellant /accused is that on 04.12.2022 at 1600 hours near Watani Bridge on the western top of the Abul Canal, police party headed by ASI Riaz Ali Sodhro during patrolling apprehended him and recovered 5000 grams hemp contained in gunny bag. On his personal search, nothing else was recovered from his possession. About Hemp he disclosed that he purchased hemp from one Haji Shahani for selling and drinking. Due to non-availability of private mashirs, PC- Wali Muhammad and PC Zeeshan Ali Sahito were associated as mashirs. The alleged hemp was sealed at the spot under memo. prepared in presence of police mashirs. Thereafter, apprehended accused and recovered case property were brought to Police Station where complainant lodged FIR on behalf of the State to the above effect.

3. Thereafter, on completion of usual investigation, challan was submitted against accused under section 9(b) of CNS Act 1997 while showing present appellant in custody and co-accused Haji Mohammad on bail and they were sent up to stand trial. After completing the legal formalities the trial Court framed a formal charge against the accused to which they pleaded not guilty and claimed their trial.

4. The prosecution in support of its case, examined complainant ASI Riaz Ali Sodhro, Mashir PC Wali Muhammad Solangi, SIO Insp. Abdul Ghafoor Sargani and WPC Abdul Sattar, Incharge of Malkhana. Thereafter prosecution side was closed. Accused were examined under Section 342 Cr.P.C wherein they claimed themselves innocent, however, they did not examine themselves on oath nor led any defence evidence. Accused Haji Muhammad produced copies of judgments passed in Cr. Case No.74/2017, Cr Case. No. 37/2019, Cr. Case No.295/2015, Cr. Case No.96/2022, Cr. Case No. 182/2021 and Cr. Case No 179/2018.

5. On conclusion of trial, the learned trial Court, after hearing the counsel for both the parties, while acquitting co-accused Haji by extending him benefit of doubt, convicted and sentenced present appellant / accused as stated above vide impugned judgment dated 17.02.2024. Hence the appellant has preferred instant Special Jail Appeal.

6. It is mainly contended by learned counsel for the appellant/ accused that learned trial court has failed to appreciate and appraise the material available on record properly and passed impugned judgment in hasty manner without applying judicious mind which is not sustainable in law, that admittedly the place of occurrence is located at public road from where people were passing and some houses were located nearby but no private person was associated to act as mashir in order to attest the veracity of arrest and recovery, that although Incharge Malkhana was examined who stated that hemp was handed over to him on very day of recovery but he failed to produce any entry under which he handed over the sealed parcel of hemp to I.O for chemical examination nor could produce any proof at trial that actually he was Incharge of the Malkhana; parcel of hemp was transmitted to chemical laboratory on 5.12.2022 but Chemical Examiner furnished report on 22.02.2023 i.e. after delay of two months and 17 days which casts serious doubt;; that the prosecution evidence suffer from major contradictions on material points which make the prosecution case highly doubtful. He urged that prosecution story on the face of it seems to be false, all the prosecution witnesses are police personnel and being subordinate to the complainant are highly interested and partisan and besides, there are major contradictions between statements of P Ws causing serious dent into the veracity of prosecution case against the appellant. Lastly, he contended that by extending benefit of doubt the appellant may be acquitted.

7. On the other hand, learned Addl: PG has supported the impugned judgment and has contended that the prosecution has proved its case beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence; that this is a crime against society therefore the appellant is not entitled for any lenient view, hence the appeal may be dismissed.

8. We have heard learned Counsel for the appellant/accused and learned Addl.P.G appearing on behalf of the State as well as perused the record made available before us.

9. On careful scanning and reassessment of the evidence of prosecution witnesses, we find multiple contradictions between the statements of prosecution witnesses on material aspects casting serious dent into veracity of prosecution case agaisnt the appellant. Complainant stated in his cross-examination that they patrolled through Ahmed Shah gate, Peeran wari Bridge where they checked some vehicles and thereafter proceeding to place of incident while Mashir PC Wali Muhammad contradicted to this point by stating that they patrolled through Highway, Sobhodero link road gate, Peeran Wari Bridge and then Watni Bridge and he did not mention about any checking of vehicles conducted by them in between; complainant stated in his FIR and Examination-in-Chief that accused on seeing police party tried to escape but in his cross-examination he himself contradicted by stating that accused did not escape and they apprehended him; mashir also stated in his examination-in-chief that accused tried to escape but he contradicted the same during his cross-examination by stating that accused did not escape; complainant claimed during cross-examination that he himself conducted personal search of accused while he was in custody of PC Wali Muhammad which is contradicted by Mashir by stating in his cross-examination that accused was in custody of PC Zeeshan Ali Sahito at that time; complainant claimed in his cross-examination that he saw here and there but no person was there at that time to act as mashir which is contradicted by Mashir PC Wali Muhammad who stated that at that time people were passing through the road but nobody was willing to act as mashir, complainant stated in his cross-examination that he prepared memo. of arrest and recovery himself which is too contradicted by Mashir in his cross-examination by stating that PC Zeeshan had written Memo. of arrest and recovery on the dictation of ASI Riaz Ali; I.O Abdul Ghafoor stated in his examination-in-chief that due to non-availability of private persons he associated police mashirs during inspection of place of occurrence which is contradicted by Complainant and Mashir PC Wali Muhammad who stated that I.O did not pick any person to act as mashir (though admittedly place of occurrence was a public road and there were houses and poultry form located near place of occurrence yet I.O did not take any effort to arrange private persons to act as mashir).

10. The above-noted contradictions arrived in the evidence of prosecution witnesses indicate that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of the arrest of the accused and recovery of hemp from the appellant had occurred as alleged by the prosecution. Taking notice of the contradictions in the evidence of the complainant and the mashir so also of the investigation officer, we are clear in our mind that the prosecution has failed to prove its case against the appellant beyond a shadow of reasonable doubt and the recovery from the appellant has not been satisfactorily proved, therefore, it cannot be excluded beyond consideration that the same has been foisted upon appellant. Both the witnesses have contradicted to each other on material aspects of the case. No implicit reliance can be placed on their evidence in view of aforesaid contradictions in the evidence of prosecution witnesses. It is observed that mere heinousness of the charge and recovery of 5 k.gs hemp is no ground to convict the accused when all the prosecution witnesses are police personnel and admittedly despite people were passing through road no body was asked to act as mashir and attest the recovery and arrest. The prosecution is under a bounden responsibility to drive home the charge by proving each limb of its case. It is further to be noted that in a stringent law such as the CNSA, where capital punishment or imprisonment for life can be awarded even on the testimonies of police officials, in order to bring home guilt against an accused, it is necessary for the prosecution to prove the case through reliable, unrepeatable, and confidence inspiring evidence beyond any reasonable doubt. The harder the punishment, the stricter the standard of proof. Reliance can be placed on the case of Ameer Zeb v. The State (PLD 2012 SC 380), where it was observed as under:- "Punishments provided in the Control of Narcotic Substances Act, 1997 were quite stringent and long, if not harsh, and, thus, a special care had to be taken that a court trying such an offence had to be convinced that the entire quantity allegedly recovered from the accused person's possession was indeed narcotic substance. We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: "The harsher the sentence the stricter the standard of proof (Underling is provided by us for emphasis.) In the said Ameer Zaib's case it was also observed that, "We may also observe that in such cases it is the accused person who is at the receiving end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution."

11. It is well settled principle of law that for the purposes of extending benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance can be placed on the cases of Tajamal Hussain v. The State (2022 SCMR 1567), Sajjad Hussain v. The State (2022 SCMR 1540), Abdul Ghafoor v. The State (2022 SCMR 1527), Kashif Ali v. The State (2022 SCMR 1515), Muhammad Ashraf v. The State (2022 SCMR 1328), Khalid Mehmood v. The State (2022 SCMR 1148), Muhammad Sami Ullah v. The State (2022 SCMR 998), Bashir Muhammad Khan v. The State (2022 SCMR 986), The State v. Ahmed Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. The State (2021) SCMR 736), Muhammad Imran v. The State (2020 SCMR 857), Abdul Jabbar v. The State (2019 SCMR 129), Mst. Asia Bibi v. The State (PLD 2019 SC 64), Hashim Qasim v. The State (2017 SCMR 986), Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Zaman v. The State (2014 SCMR 749 SC), Khalid Mehmood v. The State (2011 SCMR 664), Muhammad Akram v. The State (2009 SCMR 230), Faheem Ahmed Farooqui v. The State (2008 SCMR 1572), Ghulam Qadir v. The State (2008) SCMR 1221) and Tariq Pervaiz v. The State (1995 SCMR 1345).

12. Based on the above discussion and our reassessment of the evidence on record, we are of the view that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt, therefore, we allow this Special Jail Appeal and set-aside the conviction and sentences awarded by the trial court vide judgment dated: 17.02.2024, and acquit the appellant by extending him the benefit of doubt.

13. The above are the reasons of our short order dated: 19.11.2024. JK/L-2/Sindh Appeal allowed.