IN THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Acquittal Appeal No.261 of 2009

 

                                                            Present:

 

            Mr. Justice Naimatullah Phulpoto

            Mr. Justice Rasheed Ahmed Soomro

 

Appellant:                            The State through Mr. Habib Ahmed, Special                        Prosecutor ANF

 

Respondent:                         Saleem Lodhi son of Miskeen Lodhi through   Mr. Mamoon A. K. Sherwani, Advocate

 

Date of hearing:                  17.08.2018

Date of announcement:    31.08.2018

 

J U D G M E N T

 

NAIMATULLAH  PHULPOTO, J.-- Respondent/accused Saleem Lodhi was tried by learned Special Judge-II (CNS), Karachi, in Special Case No.287/2004 under section 9(c) of the Control of Narcotics Substances Act, 1997 of P.S. ANF Clifton, Karachi. On the conclusion of the trial, vide judgment dated 09.02.2009, respondent/accused was acquitted of the charge.

 

2.         Brief facts leading to the filing of the appeal are that on 16.04.2003 complainant Jahangir Khan along with ANF officials was on patrolling duty at Hasan Square area, spy informant gave information that two persons namely Abid Jan and Saleem Lodhi who are big narcotic dealers along with huge quantity of narcotic were available at Essa Nagri bus stop. Thus would deliver the same to some person. On such information, it is alleged that the ANF officials along with informer reached at the pointed place. Spy informer pointed out two persons, who were standing there, one was having green trolley bag in his hand and the other one having handbag in his hand. It is further alleged that they tried to apprehend both of them, one person who was having handbag in his hand after throwing it fled away from the spot. He was identified by the complainant as narcotic dealer Abid Jan and the person who was apprehended disclosed on enquiry his name as Saleem Lodhi. The trolley bag was checked and found containing 14 packets of charas garda wrapped with plastic tape, each packet weighing one Kg. and total 14 Kgs charas garda. On personal search of accused Saleem Lodhi Rs.500/-., one mobile phone and one bunch of keys were secured. The handbag which was thrown by his partner absconding accused Abid Jan was also opened and checked and found containing 11 packets each weighing one Kg. of charas garda wrapped with plastic tape and total 11 Kgs was recovered. One packet of each recovery was separated and sealed separately for sending the same to chemical examiner for analysis and the remaining case property was also sealed separately. Accused was arrested, such mashirnama was prepared at the spot in presence of mashirs. After completion of usual investigation challan was submitted against accused Saleem Lodhi in the Court of law in which other accused Ghous Muhammad, Muhammad Usman, Irshad Baloch, Iqbal, Abid Jan and Khushrang were shown absconders.

  

3.         Trial court framed charge against accused Saleem Lodhi at Ex.4. Accused did not plead guilty and claimed to be tried.

 

4.         At trial, in order to prove its case, prosecution examined two prosecution witnesses. PW-1 ASI Shakeel Ahmed, mashir of arrest and recovery, who produced memo of arrest and recovery at Ex.P/1 and PW2 Inspector Jehangir Khan, the complainant and IO of the case, who produced FIR, chemical report and copy of FIR No.13/2003. Thereafter, prosecution side was closed.

 

5.         Statement of accused Saleem Lodhi was recorded at Ex.9 wherein he has denied the prosecution allegations, examined him on oath in disproof of prosecution allegations. Accused examined DWs Rana Zulqarnain and Ghazanfar Abbas at Ex.11 and 11.  

 

6.         On 25.06.2008 prosecution produced another accused namely Khushrang along with supplementary challan. Amended charge was framed. Prosecution examined PWs. In the meanwhile, trial Court acquitted accused Khushrang under section 265-K, Cr.PC vide order dated 30.08.2009.

 

7.         Trial court on the conclusion of the trial, acquitted accused Saleem Lodhi and case of absconding accused was kept on the dormant file. From perusal of impugned judgment, it appears that respondent/accused was acquitted by trial Court mainly for the following reasons:

 

“18.    I have given careful consideration to the arguments of learned counsel for the parties. I have also gone through the record of this case and the case law relied upon by learned counsel for the parties. In this case the prosecution has examined all the material witnesses, the accused has also examined DWs in this case. The learned counsel for the accused has argued that prosecution witnesses are interested witnesses while the evidence led by the defence is completely based on independence witnesses. It was also urged that arrest of the accused from the alleged place of recovery itself is not proved as the defence witnesses categorically stated that accused was along with them in Union Office of Plaza in a meeting. On this issue on the other hand the learned SPP argued that the plea in his statement taken by the accused and the defence witnesses reveals that the accused was personally known to the raiding party.

 

19.       First of all it would be appropriate to consider upon the acquaintance between the raiding party ANF and the accused. It is an admitted fact that accused was booked in FIR No.47 of 2002 and was acquitted under section 265-K, Cr.PC which shows that ANF personnel not only knew the accused prior to registration of the instant case, but also involved him in a case where the Court found that the case cannot be proceeded with and acquitted him before trial and according to the plea of the learned prosecutor, the accused was acquitted prior to recording of evidence.

 

20.       As far as enmity is concern for the involvement of the accused, it also could not be taken, as there must be some dispute between the prosecution witnesses and the accused with reference to any property relationship. It is not necessary that the accused must have inimical relationship for his false implication in the crime. The accused has been acquitted in two cases registered against him by ANF officials. The first case i.e. FIR No.42 of 2002 he was acquitted under section 265-K Cr.P.C. as mentioned herein above while in case Crime No.13/2003 he was acquitted after complete trial vide judgment dated 29.05.2006. The certified copy of the said judgment in Crime No.13 of 2003 has been provided by the learned defence counsel. The perusal of the said judgment shows the malafide of the prosecution towards the accused as the same witnesses admits in their evidence that the entire case was proceeded against the present accused on the strength of the case property allegedly recovered from the absconding accused Abid Jan. On the other hand when during the trial of the instant case defence  counsel moved an application for the production of case property allegedly recovered in Crime No.13 of 2003 (which was produced in Crime No.13/2003 in Court) which was allegedly in possession of Abid Jan, who threw it away at the time when police party arrived at the same spot, the same was not produced before this Court.

 

21.       The prosecution case is that from the present accused 14 Kgs of Charras Garda and from absconding accused Abid Jan 11 KGs of Charras Garda was recovered at the same time, from the same place. However, in the entire record recovered Charras viz. 14 + 11 = 25 Kgs Charras never produced in any of the case i.e. the present case and during the trial of case registered as FIR No.13 of 2003 which makes the entire recovery doubtful as alleged.

 

22.       In this case alleged recovery was effected from a bus stop and admittedly populated and busy area, but neither any person from the public was made witness of recovery. PW-1 ASI Shakeel Akhtar was admitted in cross-examination that the place of wardat is thickly populated and busy area. The Mashir PW1 further admitted that mostly in all the cases it is written in the Mashirnama and in the FIR that people available at the spot were asked to act as witnesses, but they refused/got excused therefore, witnesses from the raiding party are taken and also admitted that he acted as Mashir alongwith PC Hasan in 30/40 ANF cases. Admittedly the Complainant had not given notice u/s 160 Cr.P.C to whom who refused to act as witnesses. Applicability of section 103 Cr.PC though had been excluded under the CNS Act, 1997 as argued by learned SPP, but it would not debar or prohibit the officers making recoveries on such places, which were necessarily surrounded by people to take some steps/measures to associate private persons in the process.

 

23.       The learned SPP during the final arguments has adopted the written arguments of her predecessor Mr. Amaar Yasir and she tried to justify the dates appearing on case property. According to her it was the result of confusion of similar situation. The arguments in respect of the dates have no strength at all as there is no question of confusion or any other error on the part of the witnesses as the reply to the suggestion during cross-examination is quite unambiguous. It will appropriate to reproduce the said evidence as under:-

 

“I produced attested photocopy of FIR No.13/03 registered against accused Abid Jan, registered by me………………………… …………………………………………Writing appearing on the bag is in my hand. It is correct that FIR No.12/03 is also written on the bag. It is correct that the memo does not read that the Mashirs had put their signature after sealing the parcel. It is correct that case properties of present FIR No.12/03 and 13/03 were sealed at one and the same time. It is correct that in my evidence so also the PWs in case Crime No.13/03 have admitted that date of sealing appearing on the parcel of that case property as 17.04.2003.”

 

24.       The above evidence shows that property was not recovered from accused on 16.04.2003 so the recovery on 16.04.2003 and memo of recovery Exh.P/1 of the same date in this case has become might doubtful being contradictory and conflicting to their own cases.

 

25.       Now coming to the defence plea, the accused who examined on oath state that he was arrested when he was in a meeting of Union office situated in his Plaza. Both defence witnesses Rana Zulqarnain and Ghazanfar corroborated the evidence of the accused that at the time  he was sitting in the office of the Union situated in Plaza. The learned SPP has argued that how the defence witnesses saw ANF officials taken the accused forcibly therefore, their evidence is not reliable. The arguments of learned SPP are without any merits for the reason that if both the witnesses admitted to the extent that accused was present at Union Office on 16.04.2003 between 7-8 pm, his arrest on the same date and same time at any other place cannot be relied upon. Furthermore, if the evidence is credible then it is not necessary he should witness the entire scene. The evidence itself shows it independency as well as truthfulness as none of the witness favour the accused to the extent which can be more helpful. The reliability of the evidence cannot be questioned only on the point that when a person sitting with them left the place with some outsider and later on inform that he was taken by some other persons alongwith the outsider to some where else. During the cross-examination of defence witnesses, prosecution failed to create any doubt about their independency or to show any interest of the witness towards the accused for which they came forward and deposed before this Court.

 

26.       For the all the reasons discussed herein above, the recovery of the Charras from the accused as alleged appears to be highly doubtful. It has been held in 1995 SCMR 1345 that for granting benefit of doubt to an accused it is not necessary that there should be many circumstances to creat doubts. If a simple 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 and concession, but as a matter of right in view of above discussion I have not hesitation to hold that the prosecution has not been able to prove case against the accused beyond any reasonable doubt on this capital charge. I, therefore, answer this Point “as Negative”.

   

9.         From the close scrutiny of the evidence, it transpired that trial court has rightly acquitted the respondent/accused mainly for the reasons that accused was arrested from the bus stop and 14 Kgs. Charas garda was recovered from him. It has come on record that private persons were available but efforts were not made to join them as mashir in this case. Defence plea has been raised that respondent/accused was arrested when he was attending a meeting in the Union Office situated in the Plaza. In such circumstances, it was unsafe to rely upon the evidence of ANF officials without independent corroboration and it was lacking in this case. During investigation, investigation officer failed to collect the record regarding involvement of the respondent/accused in the cases of the nature in which he was challaned. Admittedly, safe custody of charas from the date of recovery and its safe transit to the chemical examiner has not been established at trial. Trial court in paras 18 to 26 of the judgment have assigned sound reasons for recording acquittal in favour of the respondent/accused and rightly held that there are many circumstances in this case which create reasonable doubt. Moreover, in the case  of State versus 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.”

 

10.     For what has been discussed above, we are of the considered view that impugned judgment dated 09.02.2009 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, the Criminal Acquittal Appeal is without merit and the same is dismissed.       

 

 

J U D G E

 

                                      J U D G E

Gulsher/PS