Criminal Acquittal Appeal No. 230 of
2012
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Abdul Maalik Gaddi
Date of Hearing: 25.10.2017
Date of
announcement of judgment: 27.10.2017
Appellant: The
State/ANF through Mr. Shafiq Ahmed Special Prosecutor ANF.
Respondent No.1: Akbar
Ali Shah through Mr. Umar Farooq Khan.
Respondents No.2
to 4: Nemo.
NAIMATULLAH PHULPOTO, J- Respondents/accused Akbar Ali Shah, Rashid Aslam,
Mujahid Pervez @ Mohammad Aslam, Fahim Babar were tried by learned Special Judge,
Special Court-II (Control of Narcotics Substances) Karachi in Special Case No. 07/2004.
After full-dressed trial, by judgment dated 07.10.2011, appellants were
extended benefit of doubt and acquitted. Cases of absconding accused Majid and
Rana Shahzad were kept on dormant file. The State/ANF through its’ Assistant Deputy Director, ANF challenged
the acquittal recorded in favour of Respondents/accused before this Court.
2. Brief
facts of the prosecution case as reflected from the impugned judgment are as
under:
“A letter
No.10(56)ANF/INT/97 dated 17.09.1997 along with a copy of letter AEA, US
Department of Justice Islamabad dated 10.09.1997 and USA, DAE, Islamabad
Intelligence Bulletin was received by the complainant from ANF Rawalpindi
alleging therein that 6032 Kgs Hashish was recovered by Belgium Customs from
container arrived from Karachi Pakistan. On receipt of above letters the complainant,
the then SI Liaquat Ali Zaidi of ANF-II Mohammad Ali Society, Karachi initiated
inquiry which revealed that on 13.08.1997 Belgium Customs seized approximately
6032 Kgs Hashish from container No. JCU-8613070 which arrived from Pakistan on
MV PUSANE SENATOR vide Bill of Lading No. BJSCKHIE-11044504 issued on
10.07.1997 by Hanjin Shipping Company Ltd. Karachi. The said consignment was
booked by Qazi International, 10 Abbot Road, Lahore to consignee Fit Fun, SA
Pasc Des Sport Enlotslrs Nr. 6, Capellen, Luxemburg. Enquiry conducted revealed
that container mentioned above utilized for the subject consignment was
transported from Faisalabad to Karachi on 07.07.1997 through NLC Truck No.
860914-859507. It further revealed from the scrutiny of the documents received
from Deputy Collector Customs Dry Port Faisalabad, NLC Headquarters Karachi and
Shipping Company Hanjin Pvt. Ltd Karachi, but exporter had prepared fake and
fictitious shipping Bill No. 120 dated 04.07.1997 containing forge seal and
signature of Customs Officer. Actually Shipping Bill NO. 120 dated 05.07.1997
was filed by M/s. Nishat Mill Ltd, Faisalabad and not by the Qazi International
for export of Hashish. On inquiry from NLC Head quarters Karachi it revealed
that the Driver Launce Naik Salamat Ali brought the container from Faisalabad
to Karachi on the Truck No.860914-859507. From the above mentioned fact a case
is made out against the Driver of NLC L/N Salamat Ali, exporter Qazi
International, 10 Abbot Road, Lahore and other under section 6, 7, 8, 9, 12, 14
and 15 CNS Act, 1997 read with section 420, 460, 417, 34 PPC and FIR No.
07/1997 has been lodged on 25.03.1998 by the complainant the then SI Liaquat
Ali Zaidi.”
3. Trial
Court framed charge against accused/Respondents u/s 6/9 (c), 14 & 15 of the
CNS Act at Ex.13. 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 Complainant/I.O SI Liaquat Ali Zaidi at Ex.18
2. P.W-2 SIP Sajjad Ail at Ex.19
3. P.W-3 Mohammad Iqbal Bajwa Addl. Collector of Customs at Ex.20
Thereafter, prosecution side was closed vide
statement at Ex.22.
5. Statements
of the accused were recorded under Section 342 Cr.P.C. as Ex.23 to 26 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 07.10.2011, mainly for the following reasons:-
“17. Admittedly in this case no charras/Hashish had been recovered from
any of the accused person from neither their possession nor the contraband
narcotic property produce in the Court and or any stage of trial. No sample had
been sent to chemical analysis by the prosecution/ANF department. I have taken
guidance from the case law reported as 2009 PCRLJ 1334, placitum-d, which reads
as follows:
“(c) Control of Narcotic Substances Act (XXV of 1997)-S.9(c)-
Non-production of case property in Court- Effect _ Unless the recovered
narcotics are produced in the Court, it cannot be found that accused was
carrying them on his person and the same were recovered from him.”
18. It is the prosecution case that the said consignment from which huge
quantity of contraband Charras/Hashish weighing 6032 Kgs were recovered by
Belgium Customs cleared by customs authorities of Dry Port Faisalabad and one
driver of NLC brought the said container from Faisalabad to Karachi through a
truck. On 21.10.2000 prosecution has filed supplementary challan before the
Court of law in which accused Salamat Ali shown in Army custody as he was army
personnel but further progress about the case of accused Salamat Ali produced
before Court whether he was convicted or absconding. Admittedly no 164 Cr.P.C
statement of accused Salamat Ali was recorded before competent authority.
19. Further the instant FIR
has been lodged on the basis of letter of Joint Director ANF dated 17.09.1997
along with a copy of DAE, US Department of Justice Islamabad dated 10.09.1997
USA, DAE, Islamabad Intelligence Bulletin. As per the prosecution case 6032 Kgs
of Charras/Hashish was seized by Belgium Customs authority at Antwerp Port.
Admittedly no any letter received from Government of Belgium about the said
consignment which was recovered at Belgium.
20. The complainant and I/O
of the case PW3 the then SIP Liaquat Ali Zaidi has produced photocopies of the
several documents and the defence counsel had raised objection for its
production in evidence. It is settled principle of law that photocopy of the
documents is inadmissible in evidence. Such documents of cannot be taken into
consideration. Merely by tendering a document in evidence without its proof the
same has not evidentially value in eyes of law unless its contents or proved
according to law and copies of documents without providing the case for
secondary evidence in inadmissible in evidence. Later on no steps were taken by
the prosecution to prove those documents by leading primary or secondary
evidence in terms of Article 75 and 76 of the Qanoon-e-Shahadat Order, 1984.
Further the authors of those alleged documents were not examined by the
prosecution, therefore the production of those documents have no evidentiary
value in the eye of law and not admissible in law as per case report in PLD
1973 SC Page-160.
21. Learned counsel for the
accused has contended that it is well settled principle of law that even a
simple circumstances which creates doubt as to the guilt of the accused to the
offence he is charged with entitles him to the acquittal not a matter of
concession but as matter of right and similarly a simple reason can be source
of discrediting the entire evidence of a witness. The case law reported as 1995
SCMR 1345, 1997 SCMR 25 and 2008 SCMR 1221. The relevant head notes of the same
are reproduced as under:
1995 SCMR 1345. For giving benefit of doubt to an accused it is not
necessary that there should be many circumstances creating doubts. If a single
circumstance creates reasonable doubt in a prudent mind about the guilt of
accused, then he will be entitled to such benefit not as a matter of grace an
concession but as matter of right.
1997 SCMR 25. Benefit of doubt. Where evidence creates doubt about the
truthfulness of the prosecution story, its benefit has to be given to the
accused without any reservation.
2008 SCMR 1221. For the purpose of benefit of doubt to an accused, more
than one infirmity is not required. Single infirmity crating reasonable doubt
in the mind of a reasonable and prudent person regarding the truth of charge,
makes the whole case doubtful.
22. In view of above noted
discussion I am clear in my mind that prosecution has not been above to prove
case against the accused persons beyond reasonable doubt. My finding on Point
No.1 above therefore is “In Negative”.
Point No.2
23. In view of my finding on
the foregoing Point No.1 as the prosecution has not been able to establish its
case under Section 6/9-C CNS Act, 1997. Consequently accused (i) Akbar Ali Shah
son of Ghulam Ali Shah, (ii) Rashid Aslam son of Mohammad Aslam, (iii) Mujahid
Pervez @ Mohammad Aslam son of Arshad Ali and (iv) Fahim Baber son of Inayatul
Karim are acquitted under Section 265-H(1) Cr.P.C. The accused are present on
bail their bail bonds are cancelled and sureties are discharged.
24. While case of absconding
accused (i) Majid son of Abdul Rasheed and (ii) Rana Shahzad be kept on Dormant
File till their arrest. Issue Life NBWs against them through I/O of the case.”
7. Mr. Shafiq Ahmed learned Special Prosecutor ANF assisted the
Court and pointed out that narcotic substance was recovered at Belgium;
chemical report was also not produced before the Trial Court.
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 narcotic substance was recovered
at Belgium and admittedly no chemical report was produced before 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. 230 of 2012 is without merits and the same
is dismissed.
JUDGE
JUDGE