Mst. SHAHZADI Versus State

FAHIM AHMED SIDDIQUI, J.--- The appellant has challenged the judgment dated 05-09-2017 of the learned Sessions Judge/Special Judge (CNS), Matiari, who has convicted the appellant in Special Case No. 21/2017 (Re: The State v. Mst. Shahzadi Dahri). The operating part of the impugned judgment is as under:-

"In view of the above discussion, I have come to the conclusion that the prosecution has proved its case against accused beyond the shadow of doubt. Accused Mst. Shahzadi wife of Muhammad Siddique Dahri has committed the offence punishable under section 9(c) of CNS Act, 1997 having in possession of 2000 grams charas in contravention of section 6 of the Act; therefore, I convicted the accused under section 265-H(ii), Cr.P.C. to undergo RI for four (04) years and six (06) months with fine of Rs. 20,000/-. In case of default in payment of fine, accused shall suffer further SI for five (05) months. Accused is in custody since the date of her arrest i.e. 22-05-2017, had period of detention as UTP be treated as benefit of section 382-B, Cr.P.C."

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 hashish (charas) was recovered from his possession. As per prosecution case, the alleged recovered quantity of narcotics was found in the exclusive possession of the appellant. It is the case of the prosecution that the police apprehended the appellant from Hala-Shahdadpur Link Road, near orchard of Iqbal Sangrasi, which is a busy place. According to prosecution case, the arrest and recovery was taken place on 22-05-2017 by appointing the police officials as the marginal witnesses of 'Memo of Arrest and Recovery'. It is also the case of the prosecution that from the possession of the appellant 2000 grams of hashish (charas) was recovered in shape of pieces and according to prosecution case a sample of 20 grams was taken for chemical examination of the recovered narcotics.

4. In the instant case, there are certain substantial incongruities as pointed out by the learned counsel for the appellant in respect of arrest and recovery, which creates doubt. It is also worth observing that the alleged recovery was taken place from the road side of Hala-Shahdadpur Link Road, which is a very busy place, and at that place some private and independent witnesses can be arranged. In this respect, we would like to take reliance from the judgment of a Division Bench of this Court reported as Khalil Ahmed v. The State (PLD 2008 Karachi 8), wherein, the bench has observed as:

"As per prosecution case, the incident occurred and mere Blue-line office, Ghinti crossing of Larkana, which is apparently situated in the midst of the city, being a thickly populated area. However, no private person from the locality was associated as witness/mashir in the case."

Another aspect of the case requires consideration. The said recovery is shown to be taken place on 22-05-2017 but as per Chemical Analyser report, the property was received in his office of the Chemical Analyser by the hand of PC Asique Hussain on 26-05-2017 i.e. with a delay of four days. It is also notable that the date of transmitting is not mentioned on the letter that is why the appropriate column in Chemical Examiner Report is left blank. This aspect of the case creates doubt regarding the safe custody of sample during its transmission from the police station to the office of Chemical Examiner. In this respect, it is necessary that PC Ashique Hussain should be produced before the trial Court as witness to clarify that the case property remained in safe custody during this period of delay. It is also a serious matter that the property and sample remained at police station for the period of these four days or they were in the hands of sender or someone else hands. We consider that this aspect of the caused serious doubt regarding the entire prosecution narration. In this respect reliance may be taken from the case reported as Riasat Ali v. The State (2004 PCr.LJ 361). Similar view is also taken in the case of Muhammad Saleh Mallah v. The State (2016 PCr.LJ 432).

5. From the above discussion, it is evident, that there are serious doubts as to the case of prosecution. It is settled law that even a single doubt in the prosecution story is disastrous for the prosecution case and its benefit must go to the accused. In this respect, we would like to take reliance from a case of Apex Court reported as Tariq Pervez v. The State (1995 SCMR 1345) wherein it is held as:

"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."

6. In the present case, there are series of circumstances creating doubts, and under the settled principle of criminal justice, the benefit of the doubt goes to the present appellant.

7. The final and eventual outcome of the entire discussion is that we are unable to agree with the findings and conclusions reached at by the learned trial Court and the same are unsustainable which vitiate the impugned judgment. We, therefore, allow the instant appeal. Resultantly, the judgment of the learned trial Court is set aside, and the appellant is acquitted of the offences for which he has been charged vide our short order dated 29.09.2017 and these are the reasons for the same.

SA/S-42/Sindh Appeal allowed.