THE HIGH COURT OF SINDH, KARACHI

                                                 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.

 

 

 

J U D G M E N T

 

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