Criminal Acquittal Appeal No. 141 of
2016
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Abdul Malik Gaddi
Date of Hearing: 16.10.2017
Date of
announcement of judgment: 16.10.2017
Appellant: The
State through Mr. Ashfaq Rafiq Janjua Assistant Attorney General.
Mr.
Khalil Dogar Special Prosecutor for Collectorate Preventive Customs.
Respondents: Ghulam
Mustafa and others.
NAIMATULLAH PHULPOTO, J- Respondents/accused Ghulam Mustafa, Asif Naseer,
Naeem Ahmed, Mohammad Akhtar Hussain, Karar Hyder and Imtiaz Ahmed were tried
by learned Judge, Special Court-I (Control of Narcotics Substance) Karachi in
Special Case No. 309/2014 (420/2011). After full-dressed trial, by judgment dated
15.02.2016, appellants were extended benefit of doubt and acquitted. Case of
accused Mohammad Saeed was kept on dormant file. Deputy Attorney for Pakistan
filed this Criminal Acquittal Appeal No. 141 of 2016 against the aforesaid
acquittal recorded in favour of Respondents/accused. On 24.02.2017, learned
standing counsel was put on notice to satisfy the Court about illegalities and
infirmities in the impugned judgment, if any, recorded by the trial Court.
Learned standing counsel requested for time. It appears that on 22.08.2017,
learned Assistant Attorney General submitted that notice may be issued to Special
Prosecutor Customs. Notice was issued to the Special Prosecutor Customs and Mr. M. Khalil Dogar, Special Prosecutor appeared
on behalf of Customs.
2. Brief
facts of the prosecution case as reflected from the impugned judgment are as
under:
“The brief facts of the
prosecution case as per FIR are that on 21-8-2011, at a1830 hours, Mr. Rashid
Saeed, Senior Preventive Officer, Custom House, Karachi, on behalf of State
lodged his report stating therein that a credible information had been passed
on by the Additional Collector, Customs, Jinnah International Airport, Karachi,
that attempt would be made to smuggle huge quantity of contraband Narcotics out
of Pakistan under the garb of medicines in commercial quantity with the
connivance of some Custom officials posted at the International departure Hall,
Jinnah International Airport, Karachi. In this connection specific instructions
were issued to keep strict watch over all the outgoing baggage and additional
officers including I.P.S- Mohammad Iqbal (M.I) were also posted at the
International Departure Hall for strict surveillance. Accordingly during the
course of surveillance on the intervening night of 20th/ 21st
August 2011, I.P.S- Mohammad Iqbal, noticed that a passenger with four
Suitcases was heading towards A.S.F’s baggage scanning machine installed
immediately after the fast track inside International departure Hall. In this
regard I.P.S- Mohammad Iqbal instructed him to stop the passenger and his
baggage. He immediately rushed to the A.S.F’s scanning machine where the
baggage had been scanned and scanning images indicate the presence of medicines
in huge commercial quantity inside said Suitcases. As such he immediately
stopped the passenger after he had collected all four Suitcases from A.S.F’s
scanning machine and brought him back to Customs examination counters as it had
become imperative to examine the baggage so intercepted. Prior to baggage examination
the passenger’s travelling documents were scrutinized which disclosed his
identity to be Ghullam Mustafa S/O Mohammad Samad Ali, Pakistan National
(Passport No. AY0872141) who was leaving for Chaka (Bangladesh) via Doha
(Qatar) by Qatar Airways Flight No.QR-319 from Karachi. The passenger named
above was asked to declare if he was carrying any contraband goods viz;
narcotics, psychotropic substances or any controlled drugs etc; in his baggage
or on his person to which he denied and stated that he was carrying some Herbal
medicines. However, being dissatisfied with the passenger declaration, his
baggage comprising four Suitcases was cursorily examined in presence of two
witnesses namely; M. Imtiaz Ali and Ashraf Mehmood, (both S.P.Os Customs). Upon
cursorily examination all the four Suitcases were found to contain
Miscellaneous Allopathic medicine kept on the upper layer under which bulk of
herbal medicines packets viz; Majun Dabeed-ul-Ward and Khamira Gaozaban were
stacked. At this point three customs officials namely; I.P.S Asif Naseer and S.POs
S. Karar Hyder and Naeem Ahmed (posted in the same shift) asked I.P.S Mohammad
Iqbal to let the passenger and his baggage go out of the Custom Hall, however
it was not accepted. In this regard I.P.S Asif Naseer also made a phone call to
Mr. A. Haneef Khan, requesting for release of passenger and his baggage’s, but
the Assistant Collector also did not allow his request. Subsequently the above
mentioned four suitcases containing bulk of herbal medicine packets were
examined in presence of above named mashirs, during which all the herbal
medicines packets were taken out from the four suitcases and were found to be
735 in number. The said 735 herbal medicine packets so recovered when unpacked
were found to contain one plastic Jar in each and all the said plastic Jars
were found to contain off-white Heroin powder instead Ma’Jun Dabeed-ul-Ward and
Khamira Gaozaban which were in fact prepared in wet-paste form. Heroin Powder so
found kept in plastic Jars was instantly tested with “narcotics test kit” which
gave a positive inference for Heroin. The examination and recovery process took
considerably long time and upon finalization the Heroin powder recovered from
735 plastic Jars was found to be 73.5 Kilograms (net) upon weightment. Three reprehensive
samples each weighing about 20 grams were also drawn and sealed under the
signature of above mashirs. Heroin powder so recovered was accordingly seized
along with containers thereof and passengers travelling documents under the
cover of a mashirnama. During preliminary investigation conducted subsequently
to recovery and a seizure of 73.5 Kilograms Heroin powder, the owner passenger
Ghullam Mustafa disclosed that his safe passage through Customs, A.N.F channels
was arranged and promised by Customs SPO Naeem Ahmed. Inquiries in this regard
further revealed that SPO Naeem Ahmed has hatched a conspiracy with other two
Custom officials namely; Asif Naseer (IPS) and S. Karar Hyder (SPO) to arrange
clandestine passage and clearance of above named passenger and his baggage
through Customs, A.N.F and A.S.F channel. These facts were immediately conveyed
to Senior Customs Officer of the level of Additional Collector of Customs and
Assistant Collector of Customs and upon receiving instruction from Customs
high-up’s the above named Custom officials I.P.S Asif Naseer and S.P.O Naeem
Ahmed were arrested along with owner passenger Ghullam Mustafa, while S.P.O S.
Karar Hyder surreptitiously left the place of incident. The above named
arrested accused persons were issued with notices of arrest whereas efforts are
being made to apprehend the above name Customs SPOs S. Karar Hyder. Moreover, efforts
were also being made to identify and other officials if any involved.”
3. Trial
Court framed charge against accused/Respondents u/s 9 (c), 14 & 15 of the
CNS Act on 22.11.2011 at Ex.5. Accused pleaded not guilty and claimed to be
tried. Amended charge was framed against accused at Ex.13. Accused did not
plead guilty and claimed their trial.
4. At
trial, prosecution examined the following witnesses:
1. P.W-1 Rashid Saeed Complainant at Ex.20.
2. P.W-2 Mohammad Imtiaz SPO Custom.
3. P.W-3 Mohammad Iqbal Superintendent, Preventive Service.
4. P.W-4 Bashir Ahmed S.P.O Custom.
5. P.W-5 Syed Azhar Mehdi S.P.O Custom, Investigation Officer.
Thereafter, prosecution side was closed vide
statement at Ex.37.
5. Statements
of the accused were recorded under Section 342 Cr.P.C. as Ex.37 to 42
respectively, in which accused have denied the prosecution allegations and stated
that they have been falsely implicated. Accused neither examined themselves on
Oath in disproof of prosecution allegations nor produced any evidence in their defence.
6. The
learned Trial Court, after hearing the learned counsel for the parties and assessment
of the evidence, recorded acquittal in favour of Respondents/accused by
judgment dated 15.02.2016, mainly for the following reasons:-
“23. Glairing contradictions
existed in the deposition of P.Ws in respect of the manner in which recovery was
effected, separating quantity of sample of Heroin powder which was sent to the
Chemical Examiner and sealing of Suitcases, empty Jars, packing material of
alleged packets of Majun-e-Dabeed ul Ward and Khamira Gaozaban.
24. That the witnesses
contradicted each other on several points. Incompetence, negligence, and
failure of investigating agency to fulfill the requirement of law damage the
prosecution case and raised reasonable doubt as to the recovery of narcotic
from Jars of Majun-e-Dabeed-ul-Ward and Khamira Gaozaban of four suitcases of
accused Ghullam Mustafa. Benefit of doubt if any will go in favour of the
accused.
In view of the above
reasons I answered this point in negative.
The up-shot of above
discussion is that the prosecution has failed to establish its case against
accused Ghullam Mustafa, Asif Naseer, Mohammad Akhtar Hussain, Syed Karar Hyder
and Imtiaz Ahmed beyond any reasonable shadow of doubt, therefore while
extending benefit of doubt to the accused Ghullam Mustafa, Asif Naseer, Mohammad
Akhtar Hussain, Syed Karar Hyder and Imtiaz Ahmed, I acquit them U/S 265-H(1)
Cr.P.C. The accused Asif Naseer, Naeem Ahmed, Mohammad Akhtar Hussain, Syed
Karar Hyder and Imtiaz Ahmed are present, their bail bond stands cancelled and
sureties discharge. The accused Ghullam Mustafa is present under custody and he
is remanded back to jail with direction to release him forthwith if he is no
more required by the Superintendent Jail in any other case.
So far the accused
Mohammad Saeed is concerned who is Proclaimed Offender therefore the case
against him is kept on dormant file and let a general warrant of his arrest
valid for a period of one year be issued through the S.H.O concerned for
execution.”
7. Learned Assistant Attorney General as well as Special
Prosecutor Custom argued that Trial Court has recorded acquittal in favour of
the Respondents on the basis of minor contradictions. It is also argued that
Trial Court did not appreciate the evidence according to the settled principles
of law. Lastly, it is argued that judgment of the Trial Court is perverse and
arbitrary.
8. From scanning the evidence recorded by the Trial Court and impugned
judgment, it appears that judgment of the Trial Court is based upon sound
reasons. Trial Court found material contradictions in the evidence of the
prosecution witnesses. Trial Court has also mentioned that evidence of
prosecution witnesses did not inspire confidence and it was rightly rejected by
the Trial Court. Judgment 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 judgment was arbitrarily, capricious or against the record. But in this
case there were number of infirmities and impugned judgment 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.”
9. For
what has been discussed above, we are of the considered view that impugned
judgment 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. 141 of 2016 is without merits and the same
is dismissed.
JUDGE
JUDGE