Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D – 23 of 2019

Date of hearing : 30.10.2019.

Mian Imtiaz Ali Qureshi, Special Prosecutor for Pakistan Railways / appellant.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Respondent Abdul Rasheed was tried by learned Special Judge for CNS, Sukkur in Special Case No.11/2017 for offence under Section 9(c) of the Control of Narcotic Substances Act, 1997. After regular trial, vide judgment dated 08.08.2018, respondent was acquitted by the trial Court mainly for the following reasons.

“20. Thus, according to mashir single piece was separated from each packet and the same were sealed in five separated sealed cloth bag parcels and the remaining property of 2500 grams was available in the Court but from perusal of chemical report which mentioned about five parcels each containing two pieces of charas weighing 500 grams which appears to have been separated from each packet containing 1000 grams but the evidence of mashir is not consistent with the mashirnama and chemical examiner report that single piece weighing 500 grams was separated because from perusal of mashirnama of arrest and recovery and chemical report it appears that two (2) pieces of 500 grams were separated from each packet and the mashirnama and chemical report if, believed then it appears that the said samples were not separated in presence of mashir PC Abdul Ghaffar because according to mashir single piece weighing 500 grams was separated from each packet and above evidence of mashir is contradictory from the facts mentioned in the mashirnama at line No.4. from its bottom of it’s first page where it is clearly mentioned that 2/2 pieces of 500/500 grams were separated from each packet and it is very strange to believe that two pieces of 500/500, if, were separated from each packet as mention in the mashirnama then, there would remain no charas of each packet weighing 1000 grams because two (2) pieces each of 500 grams if taken out, it means in total charas weighing 1000 grams were sent to the chemical examiner but the chemical examiner report is also contradictory wherein it is mentioned that five (5) parcels each containing two (2) pieces weighing 500 grams were received by the chemical examiner whereas the evidence of mashir is not supporting the mashirnama, as well as, chemical examiner report who clearly deposed that single piece from each packet weighing 500 grams was separated as sample for chemical analysis, thus, chemical report in above case could not be believed to have been chemical report for the samples separated in presence of above named mashir at the time of alleged recovery. ”

2. Mian Imtiaz Ali Qureshi, Special Prosecutor Pakistan Railways mainly argued that trial Court has recorded acquittal order on the basis of minor contradictions and prosecution evidence has not been appreciated in its true prospective. It is further contended that the judgment of the trial Court is perverse and ridiculous. Lastly, submitted that acquittal order may be converted to conviction.

3. We have gone through the judgment of the trial Court. Trial Court in para No.20 has mentioned that according to mashir, single piece was recovered from each packet and same was sealed in five separate cloth bag parcels and remaining property of 2500 grams was separated, but the perusal of the chemical report shows that about 05 parcels each containing two pieces of charas weighing 500 grams have been separated from each packet containing 1000 grams and evidence of mashir is not consistent with mashirnama and chemical examiner’s report. Special Prosecutor was directed to satisfy the Court about this ambiguity available on the record, but he could not satisfy the Court.

4. Therefore, we have come to the conclusion that trial Court has rightly acquitted the respondent, and judgment of the trial Court is neither perverse nor ridiculous, but it is based upon the evidence which was insufficient for conviction. Hon’ble Supreme Court in the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), has observed as under:

“ 2. According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses’ presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however, given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed. ”

5. For the above stated reasons, there is no merit in this Acquittal Appeal, the same is dismissed.

J U D G E

Abdul Basit