Criminal Acquittal Appeal No. 509 of
2011
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Abdul Maalik Gaddi
Date of Hearing: 06.11.2017
Date of
announcement of judgment: 06.11.2017
Appellant: The
State/ANF through Mr. Habib Ahmed Special Prosecutor ANF.
Respondents: Mohammad
Ishaq, Tahir Khan, Javed Akhtar, Ishtiaq Ahmed, Naveed Ahmed and Abdul Hameed
not appeared.
NAIMATULLAH PHULPOTO, J- Respondents/accused (1) Mohammad
Ishaq, (2) Tahir Khan, (3) Javed Akhtar, (4) Ishtiaq Ahmed, (5) Naveed Ahmed
and (6) Abdul Hameed were tried by
learned Special Judge, Special Court-I (Control of Narcotics Substances)
Karachi in Special Case No.15/2007. By order dated 02.06.2011, Respondents were
extended benefit of doubt and acquitted. Cases of absconding accused Asif,
Tariq, Rasheed, Ameer and Jaweed were kept on dormant file. The State/ANF through its’ Deputy Director(Law),
ANF challenged the acquittal recorded in favour of Respondents/accused before
this Court.
2. Brief
facts of the prosecution case are that on 16.01.2007, SHO/Inspector Mir Badshah
of PS ANF-C Karachi along with his subordinate staff left ANF Police station at
1900 hours. ANF officials arrived at Boat Basin near Karachi Grammar School and
conducted Nakabandi. At 2000 hours, a white colour Toyota Laxas appeared from
Boat Basin side. It was signaled to stop but the vehicle was not stopped. ANF
officials followed the vehicle and apprehended the vehicle at Kharkar Chowrangi
near Bar B.Q. The person who was sitting on the driving seat disclosed his name
as Imtiaz Javed. On search of vehicle, ANF officials recovered 12 shoppers
containing Razai covers in which heroin was concealed, which was weighed and 10
shoppers were weighing 3.500 K.G and
other two shoppers 4 K.G each heroin were found. The whole quantity of heroin was
85 K.Gs. 10 grams of heroin from each shopper (thelli) were taken as samples
and remaining heroin was sealed separately at spot. Accused, case property and vehicle
were brought at Police station ANF, where FIR No.01/2007 under Sections 6/9(c)
of the Control of Narcotic Substances Act, 1997 was registered against accused at
P.S ANF-C Karachi on behalf of state. After usual investigation Challan was
submitted against accused.
3. Trial
Court framed charge against accused/Respondents u/s 6/9 (c), of the CNS Act on
07.04.2009. Accused pleaded not guilty and claimed to be tried.
4. At
trial, prosecution examined the following witnesses:
1. P.W-1 Mohammad Nasir Khan P.C at Ex.29.
2. P.W-2 Rahim Bux P.C at Ex.30.
3. Complainant/I.O Mir Badshah at Ex.33
5. Thereafter,
Respondents/accused moved applications under Section 265-K Cr.P.C. The learned
Trial Court allowed applications under Section 265-K Cr.P.C and recorded
acquittal in favour of Respondents/accused by order dated 02.06.2011, mainly
for the following reasons:-
“Heard Ld. Counsel for the accused persons for whom there appears no
incriminating evidence and for whom they request for acquitted of the charge of
the case U/S. 265-K Cr.P.C. They are:-
1.
Mohammad Ishaq
2.
Tahir Khan
3.
Jawed Akhtar
4.
Ishtiaq Ahmed
5.
Naveed
6.
Hameed
The application for Mohammad Ishaque has come on record already. The
application for accused Tahir is filed today. The application for Jawed and
Ishaq is already filed. The application of Naveed and Hameed is also filed and
pressed today. The learned counsel is pointed out that the co-accused Saboor is
already acquitted by quashment U/S. 561-A Cr.P.C. on 18.08.2008 for wants of
evidence, holding that the statement of co-accused before I.O is inadmissible
against co-accused in terms of Article 38 of the Qannan-e-Shahadat. The
Co-accused Naeem is also acquitted U/S. 265-K Cr.P.C by this court order dated
Nil. They also pointed out that the applications of Naveed and Hameed made
earlier for evidence was dismissed. The presently mentioned application for
whom is on the basis of the evidence of the I.O/ Seizing officer, all recorded
by this court in which there appears no incriminating evidence against them
each and the rest of the evidence will also be on same footing if allowed to
come. SPP does not seem to be able to substantiate the charge against the
accused in hand. He is also unable to pinpointed any positive incriminating
evidence against these accused persons, he oppose their acquittal on no legal
basis which is no service carries to public interest and justice and he is not
supposed to be ignorance of law and nature of evidence as well as the decision
of the Hon’ble High Court U/S. 561-A Cr.P.C for are of the such like charge
sheeted accused namely Saboor and the case of the accused in question is like
nature similarly, the case of the accused Naeem stands acquitted by the court
on similar reasons even before the evidence of the PWs. But the aforesaid findings
have gone unchallenged on the part of the prosecution. Keeping in view the
above mentioned findings. I do hereby acquit the accused mentioned above except
the main ones namely Imtiaz Jaweed, who will continue to face the trial while
the case of absconding accused Asif, Tariq, Rasheed, Ameer and Jaweed will be
kept on dormant file of the charge of the case in the interest of justice.”
6. From
perusal of the evidence recorded by the Trial Court and impugned order, it
appears that order of the Trial Court is based upon sound reasons. Respondents/accused
were acquitted by the trial Court mainly on the ground that co-accused Saboor
was already acquitted. Acquittal of co-accused Saboor has not been challenged
by ANF. Trial Court has rightly observed that on same set of evidence,
conviction cannot be awarded to the accused without additional piece of
evidence, which was lacking in this case. Trial Court rightly acquitted accused
under Section 265-K Cr.P.C. Order of the Trial Court is neither perverse nor
arbitrary. So far the appeal against acquittal is concerned after acquittal Respondents/accused
have acquired double presumption of innocence, this Court would interfere only
if the order was arbitrarily, capricious or against the record. But in this
case there were number of infirmities and impugned order of acquittal in our
considered view did not suffer from any misreading and non-reading of the
evidence. As regard to the consideration warranting the interference in the
appeal against acquittal and an appeal against conviction principle has been
laid down by the Hon’ble Supreme Court in various judgments. In the case of State/
Government Sindh through Advocate General Sindh, Karachi versus Sobharo (1993
SCMR 585), Honourable Supreme Court has laid down the principle that in
the case of appeal against acquittal while evaluating the evidence distinction
is to be made in appeal against conviction and appeal against acquittal.
Interference in the latter case is to be made when there is only gross
misreading of evidence, resulting in miscarriage of justice. Relevant portion
is reproduced as under:-
“14.We are fully satisfied with appraisal of evidence done by the trial
Court and we are of the view that while evaluating the evidence, difference is
to be maintained in appeal from conviction and acquittal appeal and in the
latter case interference is to be made only when there is gross misreading of
evidence resulting in miscarriage of justice. Reference can be made to the case
of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this
appeal has no merits and is dismissed.”
7. For
what has been discussed above, we are of the considered view that impugned
order is based upon valid and sound reasons and is entirely in consonance with
the law laid down by the Honourable Supreme Court of Pakistan. Neither, there
is misreading, nor non-reading of material evidence or misconstruction of facts
and law. Resultantly, Criminal Acquittal Appeal No. 509 of 2011 is without
merits and the same is dismissed.
8. These
are the reasons for the short order announced on 06.11.2017.
JUDGE
JUDGE