HIGH COURT OF SINDH AT KARACHI

Criminal AcquittalAppeal No.375 of 2006

Present: Mr. Justice NaimatullahPhulpoto

Mr. Justice Abdul MaalikGaddi

Appellant : The State/Anti-Narcotics Force through

Mr.Shafiq Ahmed, Special Prosecutor, ANF.

Respondent : None present for the Respondent.

Date of hearing : 11.12.2017

Date of Judgment : 20.12.2017

J U D G M E N T

Abdul MaalikGaddi, J.–This criminal acquittal appeal has been filed by the State/Anti Narcotic Force through its Deputy Director (Law),ANF against the judgment of the learned Special Court-I (Control of Narcotic Substances) Karachi, dated 31.08.2006 in Special Case No.82 of 2005 relating to Crime No.26/2005 registered at police station ANF Clifton, Karachi, under Section 9-C, C.N.S Act, 1997, whereby the learned trial Court after full dressed trial, acquitted the respondent by giving him benefit of doubt.

2. According to the prosecution case, on 14.07.2005 Inspector Sardar Abdul Waheed of police station ANF, Clifton, Karachi received spy information that respondent/accused Muhammad Buxwas likely to deliver narcotic to his customer at X-2 Bus stop, situated at DHA, Phase-VIII, Karachi. In pursuance of that information, complainant alongwith other personnel of ANF, Clifton, left for pointed place in an official mobile, it was 03:30 p.m. It is also alleged that when police party, who was accompanied with spy informer,reached at ChaparaHotel, situated near X-2 Bus stop on pointation of spy informer, respondent/accused who was sitting in the Hotel was detained by ANF police party. The persons who were available in the Hotel declined to act as a witness, therefore, Inspector Sardar Abdul Waheed in presence of ASI NazeerAlam and PC Shahid Raza took personal search of respondent/accused Muhammad Bux, on which he secured one black colour shoulder bag from accused. On opening of the said bag, 10 bundles of Charas in shape of rods were found available in the said bag. On weighing, each bundle of recovered Charas was found at one (1) Kilogram. Thus in all, ten (10) Kilograms of Charas was secured from the accused. On the basis of aforesaid recovery of Charas, respondent/accused Muhammad Bux was arrested on the spot. Complainant after observing all legal formalities, prepared mashirnama of arrest and recovery in presence of mashirs and brought respondent/accused alongwith case properties at police station, where aforesaid FIR was registered under above referred sections.

3. Trial Court framed the charge against the accused/respondent under Section 9-C of C.N.S, Act, 1997 on 06.04.2006, to which accused pleaded not guilty and claimed to be tried.

4. At trial, prosecution examined the following witnesses:-

(i) PW-1 ASI NazeerAlam at Ex.5, who produced mashirnama of arrest and recovery at Ex.P/1;

(ii) PW-2/complainant/I.O., Inspector Sardar Abdul Waheed at Ex.6, who produced FIR No.26/2005 and chemical examination report of case property at Ex.P/2 and Ex.P/3 respectively;

(iii) PW-3 SI Tahir Ahmed at Ex.7, who produced memo of site inspection at Ex.P/4.

These witnesses were cross examined by the counsel for accused. Thereafter, learned Special Prosecutor, ANF closed its’ side vide statement dated 08.06.2006 at Ex.8.

5. Statement of accused was recorded under Section 342, Cr.P.C. at Ex.9, in which he denied the allegations as levelled by the prosecution and stated that he is innocent and has been falsely involved in this case by complainant, who demanded illegal gratification from him, when he failed to pay the same, this false case was registered against him by foisting charas.Accused neither examine himself on oath nor led any evidence in his defence.

6. It reveals from the record that this criminal acquittal appeal was filed in the year 2006 and repeatedly bailable warrants were issued against the respondent/accused through Anti-Narcotic Force (ANF), but returned unexecuted,learned Special Prosecutor, ANF was directedvide order dated 22.09.2017 to come prepared on the next date of hearing, to assist the Court on merits of this appeal. Again on 11.12.2017, learned Special Prosecutor, ANF submitted that as per statement of Process Server, there was no possibility of arrest of the respondent/accused in near future, as accused had shifted to some unknown place. Hence, we heard Special Prosecutor, ANF.

7. Mr. Shafiq Ahmed, learned Special Prosecutor, ANF contended that the judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-à-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit the respondent are not supportable from evidence on record.He further submitted that the respondent has been directly charged and that discrepancies in the statement of witnesses are not so material on the basis of which respondent could be acquitted. He further contended that the learned trial Court has based its finding of acquittal merely on the basis of minor contradictions on non-vital point in the statements of prosecution witnesses and that the prosecution evidence has not been properly appreciated. Therefore, under these circumstances, he was of the view that this appeal may be allowed as prayed.

8. We have heard the learned Special Prosecutor, ANF and after going through the record, come to the conclusion that prosecution has failed to establish its’ case against the respondent for the reasons that it was the case of spy information, which was received by the complainant/Inspector Sardar Abdul Waheed about the availability of the respondent/accused at Chapra Hotel and it has been brought in the evidence of complainant available on record that at the time of arrest of the accused, peoples were available inside the hotel, despite this fact, complainant did not bother to associate any independent person from the hotel to witness the arrest and recovery proceedings. It is settled principle that judicial approach has to be a conscious in dealing with the cases in which testimony hinges upon the evidence of the ANF officials alone. We are conscious of the fact that provisions of Section 103 Cr.P.C. are not attracted to the cases of personal search of the accused in such cases. However, where alleged recovery was made in hotel and peoples were available there, omission to secure independent mashirs, particularly, in the case of spy information cannot be brushed asidelightly by this Court. Prime object of Section 103 Cr.P.C. is to ensure transparency and fairness on the part of police during course of recovery, curb false implication and minimize scope of foisting of fake recovery upon accused.

9. We have gone through the evidence on record alongwith impugned judgment with the able assistance of learned Special Prosecutor, ANF and find number of contradictions in between the statements of prosecution witnesses, which are material and fatal to the prosecution case, and these contradictions have already been highlighted by the learned trial Judge in its judgment of acquittal.For the sake of convenience, it would be proper to reproduce the relevant portion of the impugned judgment, which reads as under:-

“From the above noted discussion, it is clear that the case of the prosecution against the accused suffers from material omissions and doubts. In this regard, it would be pertinent to note that mashirnama of arrest and recovery allegedly prepared at the vardaat was not shown to the complainant Inspector Sardar Abdul Waheed Ex/6 during the course of evidence. This fact was brought to the notice of learned SPP but he did not take any step to fill this lacuna in the case of prosecution. In my opinion, the confrontation of this witness with the mashirnama of arrest and recovery during his evidence was quite necessary and because of this lacuna in the case of prosecution, the proof of this point has become doubtful.

Again musheer of arrest and recovery ASI NazeerAlam Ex/5 and complainant Inspector Sardar Abdul Waheed Ex/6 in their respective evidence have deposed that prior to the arrest of this accused, spy information about delivery of Narcotic by this accused to his customer was received. However, no steps were taken by the complainant to arrange for a private person to witness the alleged recovery if any effected. It is now well settled law that whenever the complainant is in receipt of earlier information, he is required to take some private persons with him to act as a witness. Inspite of have earlier information, complainant did not asked any private person to act as a witness in this case and he cited only ASI NazeerAlamwho was working under the sub-ordination at the relevant time. As complainant and the musheer were working in ANF at the relevant time and the musheer was subordinate of the complainant, therefore, the evidence of musheer against the accused does not inspire any confidence particularly when earlier information was received. This omission on the part of complainant to call a private person to act as a musheer has made case of prosecution against the accused highly doubtful. Reliance is placed on PLD 2005 Karachi 128 and PLD 2003 Karachi 606.

The complainant Inspector Sardar Abdul Waheed Ex/6 in his cross examination has clearly stated that accused is a handicap one and could walk only with the help of sticks. He admitted this fact that accused is handicap is not mentioned in the musheernama of arrest and recovery. He also admitted that in musheernama, it is not mentioned that on arrest of accused, any walking stick was recovered from his possession. These admissions on the part of the complainant to record that accused is handicap and non-mentioning of recovery of any walking stick at the time of arrest of accused give support to the plea of accused that he was arrest from civil hospital Karachi, where he had come for physiotherapy.”

10. From the perusal of evidence recorded by trial Court and impugned judgment, it appears that the judgment of the trial Court is based upon sound reasons. Respondent/accused was acquitted by trial Court mainly on the ground that the evidence of the prosecution witnesses on material particulars of the case is contradictory and untrustworthy. During the course of arguments, we have specifically asked the question from learned Special Prosecutor, ANFto point out/show any piece of evidence, which is not supportable from evidence on record, no satisfactory answer was available with him. Perusal of record shows that the trial Court rightly acquitted the accused through impugned judgment, which is neither perverse nor arbitrary. So far the appeal against acquittal is concerned after acquittal respondent/accused has acquired double presumption of innocence, this Court would interfere only if the judgment/order 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 appeal against acquittal and an appeal against conviction principle has been laid down by the Hon’ble Supreme Court in various judgments. In case of State/ Government of Sindh through Advocate General Sindh, Karachi versus Sobharo reported as 1993 SCMR 585, Hon’ble 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 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.”

11. 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 Hon’ble Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, this Criminal Acquittal Appeal No.375 of 2006is without merits and the same is dismissed.

JUDGE

Faizan A. Rathore/PA*