2018 PLP 152 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

Captioned appeal is directed against the judgment dated 14.12.2009, passed by the Special Judge for (CNS) Khairpur in Special Case No. 09/2005, re-State v. Oshaq Ali Jamro culminated from Crime No. 09 of 2009, registered at Police Station Ranipur (hereinafter will be referred to as the Act, 1997), whereby the appellant Oshaq Ali Jamro was convicted for offence punishable under section 9(b) of CNS Act, 1997 and was sentenced to suffer R.I. for two years and to pay fine of Rs.5,000/-, and in default in payment of fine, to further undergo S.I. for two months, extending him benefit of section 382-B, Cr.P.C.

2. Briefly the facts of the case are that on 05.02.2009 ASI, Deedar Ali Bhutto lodged FIR at Police Station, Khairpur, stating therein that he along with his subordinate staff namely P.C. Liaquat Ali Bhambhro, P.C. Wahadat Ali Malah and P.C. Kareem Bux Bhambro while were on patrolling duty, when they reached at Piran Wari Mori, they saw one person, who seeing the police, tried to escape, but he was apprehended and on enquiry he disclosed his name to be Oshaq Ali son of Majnoon Khan Jamro (the appellant). On his personal search, the police party recovered polythene bag, containing small pieces of charas weighing 200 grams, out of which 10 grams was separated, as sample for chemical examination. Such Mashirnama of arrest and recovery was prepared at the spot, with the signatures of PC Liaquat Ali Bhambhro and PC Wahdat Ali Malah and then the accused and the property were brought at Police Station Ranipur, where the complainant lodged the above FIR. After usual investigation, the appellant was sent-up with the challan to face his trial.

3. After framing formal charge against the appellant Oshaq Ali Jamro at Ex: 02, to which he pleaded not guilty and claimed to be tried, the prosecution examined the complainant ASI Deedar Ali Bhutto at Ex: 04, who produced mashirnama of arrest and recovery at Ex: 04/A, FIR at Ex:04/B and entries of daily diaries at Ex: 04/C; PW-02 PC Liaquat Ali Bhambhro/mashir at Ex: 05. and PW-03 SIO Wali Mohammad Chang at Ex: 06, who produced chemical report at Ex: 06/A, whereafter, learned DPP closed the side of prosecution vide statement at Ex: 07.

4. Statement of the appellant Oshaq Ali Jamro was recorded under section 342 Cr.P.C., wherein, he denied the allegations and professed his innocence. He, however, neither examined, himself on oath nor did he lead any evidence in defence.

5. Learned trial Court, having found the appellant Oshaq Ali Jamro guilty for the offence punishable under section 9(b) of the Act, convicted and sentenced him as discussed in paragraph-1 supra.

6. Appellant Oshaq Ali Jamro is present in person, but his counsel is called absent. Same was the position on the last four dates of hearing viz. 05.11.2015, 28.09.2016, 10.11.2016 and 14.12.2016. Record reflects that earlier also learned counsel for the appellant attended the Court intermittently and the matter was adjourned mostly on the request made by or on behalf of the learned Counsel for the appellant.

7. The appellant Oshaq Ali Jamro has mainly contended that he is innocent and he has been falsely implicated in this case at the insistence of Pir Baggan Shah alias Fazal Shah, on account of appellant's refusal to give him dog belonging to the appellant.

8. Learned DPG has supported the conviction and sentence awarded to the appellant, stating that the prosecution had proved the case against the appellant.

9. We have considered the. contentions of the appellant, the learned DPG and have gone through the material available on record.

10. From a perusal of the record, it would be seen that PW-1 ASI Deedar Ali and PW Liaquat Ali by deposing that they tried to associate private mashirs, but private persons were not available, made dishonest improvement in the prosecution case as nothing alike is mentioned either in the mashirnama of arrest and recovery Exh.4/A or even in FIR Exh.4/B, although both of them admitted in cross-examination that the houses of Pirs and huts of Bagri community are situated at 20 or 25 paces away from the place of wardat. Both the said P.Ws. have stated that the alleged charas was in several pieces, but the same is not mentioned in the mashirnama or even in FIR; the alleged charas was shown to have been recovered on 05.02.2009, but the chemical examiner's report produced at Ex:06/A reveals that the parcel was received by the office of the chemical examiner on 18.02.2009 i.e. after (12) twelve days of the alleged incident; there is no plausible explanation from the prosecution side as to why such delay was caused in sending alleged charas to the chemical examiner and it has also not been brought on the record if the charas remained in safe custody during the period spent in dispatching the alleged charas to the chemical examiner; the appellant was arrested from Piran Wari Mori, which admittedly being area, where houses of Pirs and Bagri community etc are situated, yet no private person was associated with the recovery proceedings; it has also not come on record as to why the police party boarding in a private car was on patrolling duty and no number of that private car or name of owner or even driver thereof have been disclosed by the prosecution; and these material discrepancies and infirmities, rendering the prosecution case highly doubtful were not at all attended to by the learned trial Court while passing the impugned judgment dated 14.12.2009 convicting and sentencing the appellant, although benefit of doubt arising in the prosecution case is to be extended to the accused as a matter of right. Reference can be made to the case of Tariq Pervez v. The State (1995 SCMR 1345), wherein the Hon'ble Supreme Court of Pakistan has held: "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

11. In view of what has been discussed above, we are of the considered view that the prosecution has failed to establish its case against the appellant beyond any reasonable doubt and the conviction and sentence awarded to the appellant Oshaq Ali Jamro is not sustainable. The appeal deserves to be allowed and the impugned judgment dated 14.12.2009, passed by the trial Court is liable to be set-aside.

12. Above are the reasons of short order, announced by us on 19.01.2017, whereby the appeal was allowed, the conviction and sentence awarded to the appellant was set aside and the appellant was acquitted. JK/O-6/Sindh Appeal accepted.