HIGH COURT OF SINDH AT KARACHI

Criminal AcquittalAppeal No.179 of 2013

Present: Mr. Justice NaimatullahPhulpoto

Mr. Justice Abdul MaalikGaddi

Appellant : The State/Anti-Narcotics Force through

Mr.Shafiq Ahmed, Special Prosecutor, ANF.

Respondent : Sabir Ali Brohi

through Mr. Riaz Ahmed Bhatti,Advocate.

Date of hearing : 29.11.2017

Date of Judgment : 18.12.2017

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 Assistant Director (Law),ANF against the judgment of the learned Special Court-I (Control of Narcotic Substances) Karachi, dated 08.12.2012 in Special Case No.23 of 2000 relating to Crime No.4/1998 registered at police station ANF Clifton, Karachi, under Section 6/9(c), C.N.S Act, 1997, whereby the learned trial Court after full dressed trial, acquitted the respondent.

2. According to the prosecution case, on 05.02.1998 at about 2:00 a.m., accused Sabir Ali Brohi (present respondent) and co-accused Mehboob-ur-Rehmanwere in the custody of Inspector FIO Raees Ahmed in Crimes Nos.2 and 3 of 1998 of police station ANF, Karachi. Both accused voluntarily led investigating officer to the house of accused Sabir Ali Brohi and on the pointation of accused, 22x nylone bags containing charas were recovered from garage like godown of the house of accused Sabir Ali Brohi situated at Shershahvillage. Each bag contained 40 slabs of charas. Each slab was weighing 01 k.g.charas, total weighing 880 k.gs. The seizing officer collected one slab of charas from each bag, total 22 slabs weigh 22 k.g. and sealed each slab separately for chemical examination. Both the accused were arrested in this case. Such mashirnama of arrest and recovery was prepared at spot. The accused and case property were then brought at ANF police station, where the FIR was registered against accused on behalf of the State. After usual investigation, challan was submitted against them under above referred sections.

3. Trial Court framed the charge against the present accused/respondent under Section 6/9(c) of CNS, Act, 1997 on 07.06.1999 alongwith accused Mehboob-ur-Rehman, who had been subsequently acquitted by the trial Court vide judgment dated 06.07.2002. Accused pleaded not guilty and claimed to be tried.

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

(i) PW-1 Allah Rakha at Ex.11;

(ii) PW-2 SikandarAmer at Ex.14;

(iii) PW-3 SI Sajjad Ali at Ex.18;

(iv) PW-4/I.O. Raees Ahmed at Ex.21.

5. It reveals from the record that when case was fixed for recording the statement of both accused under Section 342, Cr.P.C.,respondent/accused Sabir Ali Brohi, who was facing trial, escaped from police lockup on 23.05.2000, as such, NBWs were issued against him. However, the statement of co-accused Mehboob-ur-Rehman was recorded under Section 342, Cr.P.C.wherein he had denied prosecution allegations, however, after hearing the parties, accused Mehboob-ur-Rehmanwas acquitted vide judgment dated 06.07.2002 by the trial Court. The said judgment was not challengedby the prosecution before any appellate forum, as such, said judgment attained finality.

6. It also reveals from the record that respondent/accused Sabir Ali Brohiappeared before the trial Court andstatement of accused was recorded under Section 342, Cr.P.C.After hearing the parties, learned trial Court acquitted the respondent/accused through impugned judgment.

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 during proceeding before trial Court, the respondent jumped the bail bond and remained absconder for some time, as such, according to him, this aspect of the case has not been considered by the trial Court. He further submitted that discrepancies in the statement of witnesses were not so material on the basis of which respondent could have been acquitted.

8. Conversely, Mr. Riaz Ahmed Bhatti, learned counsel for the respondent strongly opposed the appeal by submitting that the judgment impugned passed by the learned trial Court is based on proper appreciation of evidence, did not suffer from any inherent defect or legal infirmity, as such, is not liable to be interfered with by this Court. He added that learned Special Prosecutor, ANF failed to point out any specific illegality, irregularity, non-reading, misreading or misapplication of law in the judgment impugned, therefore, appeal filed by the appellant is liable to be dismissed. In support of his arguments, learned counsel for respondent has relied upon the following case laws:-

(i) Naimatullah Khan v. The State through Anti-NarcoticsForce, Sindh reported as 2012 YLR 251;

(ii) State/Anti-Narcotics Force through Deputy Director (Law) v. Allah Bux and another reported as 2012 YLR 503;

(iii) The State v. Rashid Ahmed reported as 2004 YLR 1830;

9. We have heard the learned counsel for the parties at a considerable length and have perused the evidence, documents on record and impugned judgmentwith the able assistance of the parties’ counsel carefully.

10. The allegation against the present respondent and Mehboob-ur-Rehman (since acquitted)was that when they were in custody of ANF officials in FIRs Nos.2/1998 and 3/1998, led ANF officials to the garage in house of accused/respondent Sabir Ali Brohi situated in Shershah Village and produced880 k.gs. ofcharas lying in 22 nylone bags.

11. We have also noted that the case of respondent/accused Sabir Ali Brohiis based on same set of evidence as that of acquitted accused Mehboob-ur-Rehman and this fact has also been observed by the trial Court while acquitting the respondent/accused in its impugned judgment. For the sake of convenience, it would be advantageous to reproduce the relevant portion of the impugned judgment, which read as under:-

“Point No.1

As stated above, the present accused is shown in the charge sheet as crime associate of the co-accused who has been acquitted in the case by judgment aforesaid which has gone unchallenged and attained finality as such. The present accused was, however, not acquitted and his case was kept on dormant file (simply for want of his presence), for the evidence which resulted in acquittal of the co-accused aforesaid was not so effected that any conviction could be based thereon; the present accused who as stated above, having remained absconding for quite some time, appeared and obtained bail in the matter; he got examined u/s 342 Cr.P.C. and the court heard the matter; the counsel for the accused contended that the rule of consistency demands the acquittal of the accused at hand, in the circumstances, which carries a decision of this court, holding the case doubtful for the purpose in question with the result, it pronounced the acquittal aforesaid on benefit of doubt; the said findings as per learned counsel are binding on the court while the case of present accused is at par with the acquitted one aforesaid; according to him, there can hardly be a room for the court to hold the present accused ‘guilty’ on the material once held on its part as doubtful, on the basis of reasoning (which may be treated as part of the judgment for the sake of brevity and convenience), given on its part in its earlier judgment aforesaid;”

12. 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 was acquitted by trial Court mainly on the ground that co-accused Mehboob-ur-Rehman was already acquitted on same set of evidence. Acquittal of co-accused Mehboob-ur-Rehman has not been challenged by ANF. Trial Court has rightly observed that on same set of evidence, conviction cannot be awarded to the accused without additional piece of evidence, which was lacking in this case. Trial Court rightly acquitted the accused. Judgment of the trial Court is neither perverse nor arbitrary. So far as, 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 arbitrary and against the record, but in this case, there are number of infirmities and contradictions in evidence of the prosecution witnesses. In this context, reliance can be place on a judgment titled as Haji Paio Khan v. Sher Biaz and othersreported as 2009 SCMR 803. Relevant observations therefrom are reproduced herein below:-

“It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent Jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.”

13. Standards of assessing evidence in appeal against acquittal are different from those laid down for appeal against conviction, while dealing such appeals Courts are always slow in exercising jurisdiction unless it is found that gross injustice had been done, while the judgment impugned as observed above, neither perverse nor shocking or contrary to the evidence available on record, therefore, is not open to any exception.

14. For what has been discussed above, the impugned judgment of acquittal is neither arbitrary nor as alleged to be a grave miscarriage of justice to warrant inference. An accused acquitted after regular trial earns a double presumption of innocence. The prosecution in this case has failed to rebut this presumption. The appeal having no merit is accordingly dismissed.

JUDGE

Faizan A. Rathore/PA*