Criminal
Acquittal Appeal No. 192 of 2012
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Abdul Maalik Gaddi
Date of Hearing: 07.11.2017
Date of
announcement of judgment: 07.11.2017
Appellant: The
State/ANF through Mr. Habib Ahmed Special Prosecutor ANF.
Respondent No.1: Sikandar
Radia is called absent.
Respondent No.2: Mohammad Shafi is present in
person.
Respondent No.3: Shahid
Hussain through Ms. Masooda Siraj Advocate.
NAIMATULLAH PHULPOTO, J- This Criminal Acquittal Appeal is filed by State/ANF
its’ Assistant Director (Law) against Respondents/accused Sikandar Radia,
Mohammad Shafi and Shahid Hussain. Being dissatisfied with the judgment dated
18.08.2011, passed by learned Judge, Special Court No.I (Control of Narcotic
Substances), Karachi arising out of FIR No. 13/1998 under Sections 6/9, 4, 7,
8, 13 & 14 of CNS Act, 1997 registered at P.S ANF-II, Karachi, in Special
Case No. 64/2007, whereby learned trial Court acquitted the above named accused
persons.
2. Brief facts of prosecution case are
that accused persons with collaboration and participation of each other had
established a fake name firm in the name of M/s. Amir Enterprises, Al-Amna
Plaza, M.A.Jinnah Road, booked a consignment of 30 boxes through Mohammad Shafi
Proprietor Swift Cargo under Airway Bill No. 020-156-4550 for Lufthansa Flight
No. LH-636 and shipping Bill No. 131678, Invoice Form ‘E’ No. ABL 006044 dated
28.12.1996 sent a consignment of 30 boxes containing Hashish weighing 800 K.Gs.
The said consignment was cleared by accused Mohammad Shahid being an examining
officer of Customs. The consignment was seized and recovered by Canadian Custom
on 13.01.1997. Case was registered against accused. After usual investigation
Challan was submitted against the accused.
3. Trial Court framed charge against
accused/Respondents u/s 6/9 (c), 14 & 15 of the CNS Act at Ex.14. Accused
pleaded not guilty and claimed to be tried.
4. At trial, prosecution examined witnesses.
Thereafter, prosecution side was closed.
5. Statements of the accused were recorded
under Section 342 Cr.P.C. as Ex.26 to 28 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 18.08.2011, mainly
for the following reasons:-
“Point
No.1
There is
no crime property in the case at all. There is no seizure memo and expert
report in original. The copies of the same also did not stand produced by their
authors, for neither the seizing officer of the case is produced as witness in
court nor has the expert been so examined and hence, both the documents in
question, stand unproved at trial. The other material which led to the arrest of
the accused persons and their sent up to the court for the purpose of trial in
hand, is of circumstantial nature and the same alone does not constitute any
positive piece of evidence proving the guilt of the accused persons as to the
offence they are charged with. The I.O has not verified the memo of seizure. He
also did not verify the facts as to recovery effected thereunder. The did not
personally see the alleged narcotics, admittedly. The expert report is delayed
by two years inordinately. There is no explanation justifying such delay, as
well. There is nothing to show if any investigation is carried out in and out
of the country against the buyer/importer of the consignment of export in
question. Besides, the consignment shipped to Canada consisted of 30 boxes
while the consignment seized by the concerned quarter comprised 29 boxes. There
is nothing to justify the said variation or shortfall at all. The consignment
in such circumstances becomes doubtful. The accused No. 1&2 denied to have
presented the shipment papers of the consignment at custom in Karachi,
Pakistan, while none is arrested or produced to be the consigner and clearing
agent to the consignment as well. The accused No. 1&2 were arrested on the
information and identification of the customs officials dealing with the dispatch
of shipment of like nature. None of them identified the accused before any
Magistrate nor has any one of them been produced in court as witness to such
effect. There is no record to establish beyond shadow of any reasonable doubt,
the status of the accused persons referred to above, being exporter, clearing
agent or their representative respectively. The arrest of the said accused
person without any positive incriminating evidence as to their identification,
being doubtful in the circumstances, carries no legal worth. The accused No.3
who allegedly served the consignment as Customs Examiner in the first place,
did not accept the allegations as to his having examined the consignment at the
relevant time. He denied his signature on the airway bill and shipping
documents etc. The expert report shows that his specimen signature and the
signature allegedly made on his part on the said documents, carry similarity.
If, it is accepted that he signed the said documents and made examination of
the consignment for its shipment to abroad, yet he stands absolved of the
liability of the presence of the said crime stuff in the said boxes of the
consignment seized at the port of discharge as stated above, for the documents
relating to shipment show examination by the said accused as examiner at the
relevant time, up to 10 per cent of the total consignment, as per the rules
applicable in that behalf, which pertained only to three boxes bearing serial
No. 9,18&27, which as per the memo of seizure, did carry no heroin powder
or narcotics but the leather belts only, and hence, his liability stands
discharged in the matter with no criminal liability towards the narcotics if
any, secured out of the remaining part of the consignment. Additionally, the
facts that the consignment the accused had checked consisted of 30 boxes while
the consignment seized as crime stuff at Toronto Canada comprised 29 boxes,
makes the case as to the exactness of the consignment, doubtful for the purpose
in question and the benefit of such doubtful stood goes to the accused No.3 as
a matter of record. In these circumstances, I am of the firm view that the
prosecution has failed to establish the charge against the accused persons at
all, and its material is quite insufficient to hold them guilty to the offence
they are charged with. The benefit of the lapses of the prosecution’s case as
discussed above, entitles the accused persons to acquittal of the charge of the
case as a matter of law and justice as such. Accordingly, the under discussion
point for determination stands answered as ‘not proved’ beyond shadow of any
reasonable doubt.
Point
No.2
Keeping
in view the above, the accused named above, stand acquitted of the charge of
the case.”
7. Mr. Habib Ahmed learned Special
Prosecutor ANF submits that heinous offence has been committed by the
Respondents and trial Court did not appreciate the evidence according to
settled principles of law. He submits that acquittal may be converted into
conviction.
8. Ms. Masooda Siraj learned Advocate for
the Respondent No.3 submits that offence was committed at Canada; case property
was not produced before the trial court; no P.Ws from Canada has been examined
before whom recovery was made. It is argued that only Photostat documents of
recovery have been sent to Pakistan and produced before trial Court. Lastly, it
is argued that judgment is based upon sound reasons.
9. We have carefully heard Mr. Habib Ahmed
Special Prosecutor ANF and Ms. Masooda Siraj Advocate appearing on behalf of Respondent
No.3 and have perused the entire record. We have come to the conclusion that
appeal against acquittal filed by ANF is without merits for the reasons that alleged
offence was committed at Canada, Hashish was recovered at Canada, neither case
property was produced before the Trial Court, only photocopy of chemical report
was produced. P.Ws before whom Hashish was recovered at Canada were not
produced before trial Court only Photostat documents were produced before the
Trial Court. Prosecution has failed to produce original documents. There was
nothing on record with regard to the authenticity of those documents. In this
case trial Court for the valid and sound reasons recorded acquittal in favour
of Respondents. 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.”
10. 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. 192 of 2012 is without merits and the same is dismissed.
JUDGE
JUDGE