THE HIGH COURT OF SINDH, KARACHI

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.

 

 

 

J U D G M E N T

 

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