2020 PLP 682 (MLD)

FAHIM AHMED SIDDIQUI, J.

The Special Judge/Additional Sessions Judge-III, Hyderabad in the Special Case No. 08/2013 has convicted the appellant by passing the impugned judgment dated 18th September, 2014. The operating part of the impugned judgment is as under:-- "The prosecution has established its case against the accused Sultan Ahmed son of Bakhshal Khoso, beyond a reasonable doubt. Accordingly, he is convicted and sentenced for an offence punishable under section 9(c) of the CNS Act 1997, by exercising my power under section 265-H(2), Cr.P.C. to suffer rigourous imprisonment for seven years and fine of Rs. 10,000/-(Rupees ten thousand). In default thereof the accused shall suffer simple imprisonment for one month. The accused is produced in custody; he is remanded back to the Central Prison Hyderabad with the direction to the Superintendent Central prison, Hyderabad to keep him in detail and to serve out the above sentence. However, benefit of section 382-B, Cr.P.C. is awarded to the accused."

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

3. In the instant case, the appellant, was convicted because allegedly a considerable quantity of charas was recovered from his possession. As per prosecution case, the alleged recovered quaintity 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 1500 grams charas was recovered in shape of patties 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 there are more than one patty of charas and in such a situation, from each patty, sampling was required to be made separately. However, non-following this mandatory procedure means that at the most only 10 grants charas was said to be established as recovered quantity. Nevertheless there are other aspects of the case required consideration. The learned counsel for the appellant has also pointed out certain contradictions, which are also meaningful and fatal for the prosecution case. The complainant and witnesses are not in agreement about the number of seals put on the sealed parcel. The witness says that only one parcel was sealed on the spot, meaning thereby that either the sample or the remaining charas (case property) was not sealed on the spot. This aspect of the case also throws thick clouds 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 08-09-2017 and the above are the reasons for the same. SA/S-38/Sindh Appeal allowed.