IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.260 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.286/2004 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 17.04.2003 appellant Saleem Lodhi, already under arrest in Crime No.12/2013, during interrogation disclosed that his partners Abid Jan, Usman and Iqbal are involved in narcotics business and more narcotics substance was available at the flat of Usman, situated at Bleeze Tower, Rashid Minhas Road, Karachi and key of the said flat was with the bunch of keys recovered from the possession of accused Saleem Lodhi. Thereafter, ANF officials on direction of superior officers arranged a raiding party and left the Police Station along with arrested accused Saleem Lodhi and on the pointation of arrested accused reached at the said Flat No.716-A, door of the flat was locked, which was opened by the accused with the help of keys recovered from him and the police party entered the room where they saw four nylon bags and one big suitcase brown colour lying under the bed, the nylon bags were opened and checked and found containing 32 packets of charas garda tapped with packing tape, total 128 packets and from the suitcase 25 packets of charas garda in same packing was recovered, each packet was separately weighed which was recovered from the nylon bags came to one Kg., total 128 Kgs. Charas garda and each packet was also separately weighed recovered from suitcase, which also came to one Kg. each, total 25 Kgs., 1/1 packet from 4 nylon bags and one packet from suitcase was taken out as sample and sealed separately and the remaining case property was also sealed in the same containers, such mashirnama was prepared. During interrogation, arrested accused Saleem Lodhi disclosed that Ghous Muhammad, Muhammad Usman, Irshad Baloch, Iqbal, Abid Jan and Khushrang are his partners in the narcotic business. After completion of investigation challan was submitted against accused Saleem Lodhi in which 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.3. 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 Syed Mehdi Shahzad and PW-2 HC Muhamamd Hassan, mashirs of recovery. On 25.06.2008 prosecution produced another accused namely Khushrang along with supplementary challan. Amended charge was framed. Prosecution examined PWs. In the meanwhile, acquitted accused Khushrang under section 265-K, Cr.PC vide order dated 30.08.2008.

8. 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:

“19. In view of the above-discussed situation it was strange that the accused Saleem Lodhi was having the key in a buch of keys with which he opened the door of the flat and produced contraband item. It will be pertinent to mention here that PW 2 HC Muhammad Hasan the mashir of recovery has admitted that in his statement under section 161, Cr.PC unlocked with key contained in the keys of bunch recovered from accused Saleem Lodhi at the time of his arrest. Here it will be appropriate to repeat the prosecution story in brief that according to PW3 Inspector Jehangir Khan the complainant while he was interrogating accused Saleem Lodhi in Crime No.12 of 2003 he made disclosure about availability of narcotic in a flat situated in Bleeze Tower and also disclosed that ‘he can open the flat with the key of the flat in question lying in the bunch which was already recovered on his personal search’, which recovery is effected allegedly from the flat in presence of HC Muhammad Hasan and ASI Shakeel Ahmed. PW3 the complainant who is also I/O of the case however afterward himself admitted in cross-examination that he did not mention in the instant case that the bunch of keys was recovered from accused and seized in any crime number of any other case. PW3 the complainant and I/O of the case has stated in cross-examination that the bunch of the key was produced in evidence in Crime No.12 of 2013. Learned counsel for accused Saleem Lodhi has submitted certified copy of evidence of this PW recorded in Crime No.12 of 2003 and it is nowhere mentioned in evidence that bunch of keys was produced in that case before the Court.

20. The prosecution in this case has failed to produce the alleged bunch of keys or the key with which allegedly the flat was opened by accused Saleem Lodhi and got recovered in presence of Mashirs 153 Kgs charas. Secondly the prosecution no plausible reason assigned for not producing the key of the flat with which they opened the flat nor bunch of the keys has been shown seized in this case.

21. Now reverting to another interesting and important point of the case as per FIR the complainant Inspector Jehangir Khan was interrogating accused Saleem Lodhi in Crime No.12 of 2003 when alleged disclosure was made. Admitted facts of this case are also that Crime No.12 of 2003 was registered against the accused alleging that he was apprehended from Essa Nagri Bus Stop and from his possession 14 Kgs. Charas was recovered whereas another accused was after throwing the charas ran away from the scene. The complainant i.e. Inspector Jehangir Khan lodged FIR No.12 of 2003 against accused Saleem Lodhi. He lodged Crime No.13 of 2003 agasint accused Abid Jan shown fled away and accused Saleem Lodhi from the bus stop and the instant case bearing No.14 of 2003 with th story that during interrogation on pointation of accused they recovered the case property in this case from a flat which flat was also got opened by accused Saleem Lodhi with the key lying in a bunch of keys recovered on personal search in Crime No.12 of 2004. Complainant has stated in cross-examination that in presence of PW Muhammad Hasan and Shakeel Ahmed such disclosure of the accused was made and to affirm his version he denied the suggestion in cross-examination that HC Muhammad Hasan was not present at the time of disclosure of accused Saleem Lodhi. On the other hand PW Muhammad Hasan in cross-examination who though tried to corroborate the prosecution story admitted that in his statement under section 161, Cr.PC it was not stated by him that accused Saleem Lodhi has disclosed in his present to Inspector Jehangir Khan that more narcotic was lying in flat No.716-A, Bleeze Towner and that he could get its recovery effected. The said alleged disclosure of the accused in respect of the availability of the charas in the flat does not find any corroboration as per record before me.

22. PW2 HC Muhammad Hasan has admitted in cross-examination that the Memo Exh.P/1 does not read that they had put their signatures on parcels of samples so also on remaining case property. He has further admitted that it is not mentioned in his 161 Cr.PC statement that the samples were sealed in Khaki envelopes. PW3 Inspector Jehangir Khan the complainant who is also I/O of the case has stated in cross-examination that he had not made any pointation memo at flat when accused led them and pointed out the said flat from where the recovery is allegedly effected PW3 stated that it is in his knowledge that accused Saleem Lodhi is acquitted in Crime No.13 of 2003 and admitted that in aforesaid judgment the learned Judge of this Court had given adverse remarks against witnesses of this case and have also ordered to issue letter to Director ANF to take action against the witnesses.

23. Learned SPP has argued that section 103 Cr.PC is excluded by virtue of section 25 CNS Act, 1997. In this case alleged recovery was effected from a flat, which is a residential place, but neither any person from the public was made witness of recovery. The complainant has stated that at the time of raid chowkidar met to whom request was made to act as witness and he refused by stating that he was respectable (Shareef Admi) person. Admittedly the complainant not asked neither his name nor any other particulars nor give any notice to him. Applicability of section 103, Cr.PC though had been excluded under the CNS Act, 1997 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. Flat was also searched without warrant and without associating any respectable person of the locality and from the neighbourhood.

24. For all the reasons discussed herein above, the recovery of charas on pointation of accused Saleem Lodhi as alleged appears to be highly doubtful. Mere factum of recovery large quantity of narcotic substance from accused cannot be made basis of conviction of accused when the prosecution has not been able to prove that in fact the recovery was effected from the accused. It has been held in 2007 PCr.LJ 483 (Peshawar) prosecution preliminary is supposed to establish against accused beyond shadow of reasonable doubt by bringing convincing cogent for the purpose of awarding conviction and to inflict capital punishment of death or that of life imprisonment, prosecution is under statutory obligation to furnish the first degree of proof through high quality evidence reasonably creating nexus of accused with the commission of the crime.

25. In view of above discussion, I have no 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. In our considered view, trial court rightly acquitted the accused for the reasons that statement/information given by the accused to the ANF officials during interrogation regarding the narcotics in the flat was not reduced in writing. it was requirement of the law, reference is made to Article 40 of the Qanun-e-Shahadat Order, 1984. It is the matter of record that ANF officials made no efforts to call independent persons of the locality to witness the recovery proceedings. Trial court has rightly observed that evidence of the prosecution witnesses suffered from various infirmities. Safe custody of the narcotic substance from the date of recovery and transmission to the chemical examiner were also not established.

10. 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.”

11. 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

Gulsher/PS