HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal Appeal No.430 of 2016
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Date Order with Signature(s) of Judge(s)
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Present: Mr. Justice Abdul Maalik Gaddi
Mr. Justice Amjad Ali Sahito
Appellant : The State/ANF through Mr. Habib
Ahmed, Special Prosecutor ANF.
Respondent No.1 : None present on behalf of Mudasar Shah.
Respondent No.2 : Judge, Special Court-I, (CNS), Karachi.
Date of Hearing : 10.04.2019
Date of Decision : 10.04.2019
O R D E R
Abdul Maalik Gaddi, J.– Through this criminal acquittal appeal, the appellant has assailed the legality and propriety of the order dated 08.06.2016 passed by the Presiding Officer of learned Special Court-I, (Control of Narcotic Substances), Karachi, in Special Case No.1246 of 2014 (520 of 2014), in case Crime No.8 of 2014 registered at police station ANF Clifton, Karachi, for offence under Section 9(b)(c) of the Control of Narcotic Substance Act, whereby the learned trial Court after hearing the parties’ Counsel, acquitted the respondent No.1 under Section 265-K, Cr.P.C.
2. The brief facts of the case as per FIR are that on 27.05.2014, ANF officials were busy on patrolling duty have received a spy information about the availability of present respondent No.1 at service road, Shireen Jinnah Colony, Karachi. At about 1730 hours, when they reached at pointed place and found respondent No.1 in suspected condition, as such, they caught hold and on personal search, ANF officials recovered black color shopping bag from his right hand containing 216 little thelies containing garda charas weighting 800 grams gross, as such, he was arrested under memo of arrest and recovery.
3. The main grievance of the learned Counsel for the appellant is that learned trial Judge has acquitted the respondent No.1 under Section 265-K, Cr.P.C. without recording of evidence and without observing that this provision could not be exercised in the circumstances when the witnesses could not attend the Court. Per learned Counsel, the proper course was available before the trial Court to keep the matter on dormant file or to take coercive steps for procuring the attendance of prosecution witnesses, therefore, he was of the view that under the circumstances, the impugned order passed by the trial Court is against the law and facts and also passed in result of slipshod and hurried manner, which amounts that justice hurried and justice buried.
4. It appears from the record that time and again, notices were issued against respondent No.1 for his appearance/services, but all the time, it has been reported by the process server through endorsement, which is on record, that either respondent No.1 was not available at the given address or has shifted to some other place, therefore, under the circumstances, learned Counsel for ANF was directed to assist this Court on merits as this appeal is pending since 2016, whereas, the case was filed in the year 2014, as such, he has been heard.
5. From the perusal of record, we have come to this conclusion that respondent No.1 has been acquitted on the ground of non-availability of the prosecution witnesses on number of date of hearings. In our view, this is not a good ground to acquit the respondent No.1, but at the same time, it cannot be ignored that it is the duty of prosecution to produce their witnesses in time in Court for an early disposal of the case, because the right of an accused to an expeditious and fair trial has been enshrined in the constitution. The object of criminal law is to make accused face trial and not to punish him as under trial prisoner. The intention of law is that a criminal case must be disposed of without unnecessary delay. It will not be difficult to comprehend that inordinate delay in imparting justice is likely to cause erosion of public confidence in the judicial system on one hand, and on the other hand, it is bound to create a sense of helplessness and despair and feelings of frustration and anguish apart from adding to their woes and miseries. The accused cannot be deprived of the liberty without due process of law.
6. During the course of arguments, we have specifically asked the question from learned Counsel for the appellant that after framing of charge for about two years, why the prosecution witnesses could not be produced, he has no satisfactory answer with him.
7. As observed above, none present for respondent No.1 and matter pertains to year 2014 and this appeal is pending since 2016, therefore, we have perused the case diaries as well as police papers so made available before us. It appears from the record that respondent No.1 was arrested on 27.04.2014 and he remained in jail till 25.10.2014 at least for six months, as such, he had sufficiently been punished and also faced the agony of protracted trial for about two and half years, but decision could not be made on merits and the accused was acquitted by the trial Court, therefore, at this stage and under the aforementioned facts and circumstances, no fruitful purpose would be achieved, if the case is remanded to trial Court, which amounts to abuse of process of law and to torture the parties by remanding the case for another round of litigation. In such circumstances, remand of the case not being routine matter, which should be adopted only when compelling circumstances exists. Here in this case, no compelling circumstances exist. Under the aforementioned facts and peculiar circumstances of the case, we do not find any merits in this acquittal appeal, therefore, the same is disposed of, accordingly, along with pending application.
JUDGE
Faizan A. Rathore/PA* JUDGE