IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.D-12 of 2017

Present:

Mr. Justice Rasheed Ahmed Soomro,

Mr. Justice Irshad Ali Shah,

Appellant/State : Through Mr.Khadim Hussain Khooharo, A.P.G

Respondents : None for the respondents

Date of hearing : 01.08.2018

Date of decision : 01.08.2018

J U D G M E N T

IRSHAD ALI SHAH, J.-, The appellant/State by way of instant Criminal Acquittal Appeal has impugned judgment dated 13.10.2016, of learned Sessions Judge/Special Judge CNS, Jacobabad, whereby he has acquitted the respondents of the charge.

2. The facts in brief necessary for disposal of instant appeal are that; the police party of P.S Civil line Jacobabad, led by Inspector Fida Hussain Gopang, apprehended the respondents on information and on search from each of them secured a plastic shopper containing 1500 grams of Charas (total 3000 grams), for that they were booked and challaned in the present case.

3. At trial, the respondents denied the charge and prosecution to prove it, examined PW-01 complainant/SIO/Inspector Fida Hussain Gopang, produced through him roznamcha entries relating to his departure and arrival at P.S Civil Line, Jacobabad mashirnama of arrest and recovery, FIR of the present case and report of Chemical Examiner, PW-02 Mashir HC Nooruddin and then closed the side.

4. The respondents in their statements recorded u/s.342 Cr.PC denied the prosecution allegation by pleading their innocence; they did not examine themselves on oath but produced copy of daily newspaper “Ibrat” dated 27.08.2015 containing news about their arrest as Car-lifters. They examined DW Rahim Bux in their defence. It was stated by DW Rahim Bux that no Charas was secured by the police from the respondents on their arrest.

5. On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the respondents of the charge by way of judgment dated 13.10.2016, which the appellant/State has impugned before this Court, by way of instant Criminal Acquittal Appeal, as stated above.

6. It is contended by learned A.P.G for the appellant/State that the learned trial Court has acquitted the respondents without proper appreciation of the evidence and lawful justification. By contending so, he sought for admission of the instant criminal acquittal appeal to its regular hearing for its disposal after service of notice upon the respondents.

7. We have considered the above arguments and perused the record.

8. It was stated by complainant/SIO/Inspector Fida Hussain and PW/Mashir HC Nooruddin that on 25.08.2015, they with rest of the police personnel when were conducting patrol within jurisdiction of P.S Civil Line Jacobabad, when reached at Girls College “Chowk”, there they came to know through spy information that the respondents who are wanted by them in FIR Crime No.44/2015 u/s.381-A PPC of P.S Civil Line, are coming towards gate-way on their motorcycle. On such information, they proceeded to the pointed place. If for the sake of arguments, it is believed that they proceeded to the place of incident on information, then they were under lawful obligation to have associated with them independent person to witness the possible arrest and recovery. It was not done by them, for no obvious reason, which has made their proceeding to the place of incident, on information, to be doubtful. It was further stated by them that they reached at the place of incident at about 1530 hours, found the respondents coming on their motorcycle which was having no number plate. They were apprehended. On enquiry, they disclosed their names to be Rashid and Abdul Sattar. On search from each of them was secured plastic shopper. Each one of the plastic shopper was found containing three pieces of Charas. Those were weighed to be 1500 grams (total 3000 grams), a mashirnama of arrest and recovery then was prepared at the spot. The perusal of such mashirnama reveals that it was prepared at about 1530 hours. If it was so, then where the time consumed in apprehending the respondents, making enquiry from them, conducting their search and affecting the recovery of Charas from them gone? It is not accounted for, which has made the very preparation of such mashirnama allegedly at the place of incident to be doubtful. It was further stated by them that the respondents then with the recovery so made from them were taken to P.S Civil Line, Jacobabad there they were booked in the present case formally. The investigation of the present case as per the complainant was conducted by him, on investigation according to him, he recorded 161 Cr.PC statements of the PWs, then dispatched the Charas to the Chemical Examiner for chemical analysis and after usual investigation submitted challan of the case. The perusal of the report of Chemical Examiner reveals that, the Charas was delivered to him by WPC Asadullah on 28.08.2015. If it was so, then it was on 3^rd day of its recovery. In that situation, the prosecution was under lawful obligation to have examined WPC Asadullah to prove the safe custody and transmission of Charas to the Chemical Examiner. It was not done by the prosecution, for no obvious reason.

9. In case of Ikramullah & ors vs. the State(2015 SCMR-1003), it was held that;

“Safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the investigating officer appearing before the learned trial Court had failed to even to mention the name of the police official who had taken the samples to the office of Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit”.

10. The learned trial Court by taking the above said omissions and defence plea of the respondents into consideration has rightly acquitted them of the charge by extending them benefit of doubt.

11. In case of Tariq Parvez vs. The State (1995 SCMR-1345), it is held by the Hon’ble Court that;

“The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of grace and concession but as a matter of right”.

12. It is settled by now that the acquittal carries with it double presumption of innocence and interference with such acquittal is narrow and limited could only be interfered with when the judgment is found to have been passed in arbitrary and cursory manner.

13. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is held by the Hon’ble Court that;

“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.

14. Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned trial Court in arbitrary or cursory manner, which may call for interference with it by this Court by way of instant Criminal Acquittal Appeal.

15. The instant Criminal Acquittal Appeal is dismissed accordingly.

J U D G E