Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. D – 27 of 2017

Present: Mr. Naimatullah Phulpoto, J

Mr. Rasheed Ahmed Soomro,J

Date of hearing : 27.08.2019.

Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General for the appellant.

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J U D G M E N T

NAIMATULLAH  PHULPOTO, J.-- Respondents/accused Muhammad Nadeem Khan and Zubair Ahmed were tried by learned Sessions Judge / Special Judge (CNSA) Ghotki, in Special Case No.15/2014 under section 9(c) of the Control of Narcotics Substances Act, 1997 of Excise Police Station Ghotki. On the conclusion of the trial, vide judgment dated 18.08.2016, respondents/accused were acquitted of the charge.

2.         Brief facts leading to the filing of the appeal are that on 10.03.2014 at 01.30 pm Excise Inspector Muhammad Younis, lodged his FIR at Excise Police Station Ghotki, stating therein that on that day he alongwith Excise Inspector Muhammad Rafique Mahar, Excise Inspector Samee Khan Pitafi and subordinate staff every one E.C Allah Dino, E.C Noor Hassan, E.C Liaquat Ali, E.C Abdul Jabbar, E.C Niaz Hussain, E.C Muhammad Yasin, E.C Preetam Das and E.C Saifullah, in official uniform having arms and investigation kit left EPS for detecting excise crimes and checking of the vehicle, through government vehicle according to entry No.01 at 4.30 am and went at Excise Check Post Sindh- Punjab border. During checking of the vehicles, at about 1.30 p.m they noticed a Shahzore pick up which was coming from Sadique-Abad side in high speed, which was cautioned to stop being suspicious, it was stopped and was bearing registration No.KP-2540 wherein two persons were found sitting including driver. Both the persons were suspected and off loaded from the pickup and were enquired regarding their identity and load of the pickup. Driver disclosed his name as Muhammad Nadeem Khan son of Muhammad Naeem, another disclosed his name to be Zubair Ahmed son of Gulzar Khan. After appointing E.C Liaquat Ali and E.C Niaz Hussain as mashirs, their personal search was conducted and from front pockets of shirt of driver Muhammad Nadeem his original CNIC, photo copy of learning driving license, four currency notes of Rs. 500/- each total Rs. 2000/- and one builty No.309 were recovered, while from other person from front pocket of his shirt one currency note of Rs. 500/-, registration book of Shahzore pickup in the name of Rehman Akber and photo copy of NIC of Rehman Akber were recovered. Shahzore pickup was found loaded with 45 Gas Stovs, on further search in the floor of vehicle there was secret cavity in which packets of purple colour were found lying, those were taken out in which Charas was lying in shape of slabs. Both the persons were arrested being responsible for concealing and transporting Charas. The recovered packets of Charas were counted which became 50 and each packet was weighed to be one kilogram, total 50 kilograms. Thereafter 200 grams from each packet was separated and sealed in white paper for chemical examination. Remaining packets were put in two plastic bortas containing 25 packets each. Such mashirnama was prepared on spot, thereafter accused persons along with recovered aritlces and Shahzore pickup were brought to Excise P.S Ghotki, where complainant lodged the FIR as above.

On 14.03.2014 said Excise Inspector Muhammad Younis on receipt of spy information again searched the vehicle i.e Shahzore pickup and from back side of its driver seat a secret cavity in loud speaker woofers was found, which was opened, in which coloured packets were found, those packets were taken out and counted to be 120 packets, each packet was separately weighed to be one kilogram each total 120 kilograms. 200 grams from each packet was separated and sent for Chemical examination, while remaining packets were also separately sealed in six gunny bags, each containing 20 packets. Such mashrinama was also prepared at spot.

3.         Trial court framed charge against accused persons at Ex.7. 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 Excise Inspector Muhammad Younis, he produced mashirnama of arrest / recovery, FIR, attested copies of roznamcha entries, carbon copy of letter issued to Chemical Examiner and its receiving letter, report of Chemical Examiner, letter issued to Motor Registration Authority Karachi and its reply and attested copy of roznamcha entries, mashirnama of place of vardat, letter to chemical laboratory and its receiving copy and report of Chemical Examiner at Exh.14/A to 14/P and EC Liaquat Ali P.W 2 at Exh. 15. Thereafter, prosecution side was closed.

5.         Statement of accused Muhammad Nadeem and Zubair Ahmed were recorded at Ex.17 and 18 wherein they have denied the prosecution allegations. They examined themselves on oath in disproof of prosecution allegations at Exh.19 and 20.

6.         Trial court on the conclusion of the trial, acquitted accused Muhammad Nadeem and Zubair Ahmed. From perusal of impugned judgment, it appears that respondents/accused were acquitted by trial Court mainly for the following reasons.

“Both these points are interconnected as such both these points are answered simultaneously.

On these points prosecution has examined complainant E.I Muhammad Younis P W-1 at Exh.14 and Liaqat Ai P.W.2 at Exh.15.

The perusal of evidence on these points would itself show that it is not confidence inspiring as much as that complainant in the cross examination has deposed that after reaching along with accused and property he kept entry No.2 in the roznamcha, thereafter he recorded FIR. He has admitted that in entry No.2 of his arrival, FIR number is also mentioned. He has further deposed that; secret cavity on the deck of Shahzore was discovered by him while Liaqat Ali PW-2 at Exh.15 has deposed in the cross examination that secret cavity was discovered by him. It is admitted position that samples were drawn from the packets of Charas having two slabs while remaining property present in the court was having three slabs in each packet. It is also admitted position on record that brand name of Charas is not mentioned in the mashirnama or FIR. Complainant has deposed that; he has not remembered as to whether he separated the samples from each slab or each packet. While mashir has deposed that samples were drawn from ach packet. It is therefore clear that samples were not drawn from the Charas present in the court at least on builty no name of accused is mentioned to show that truck was entrusted to him along with load, no prudent mind would believe that accused was driving truck with learner card on such long route. So far the further recovery of 120 packets of Charas is concerned, it is admitted position that at the time of such recovery accused positions were not present and Shahzore in question was in the custody of complainant as such accused cannot be liable for the same under any law. It is also position on record that due to contradictory statements of the witnesses it cannot be said that both were present at the time of incident together. It is matter of record that the special Judge Narcotics had agitated the second phase of recovery and on his request enquiry was conducted but the Director Excise either wanted to save his subordinates or due to lack of knowledge of law he has concluded the enquiry “might” and “may” without any proper conclusion. The complainant even according to enquiry report was examined but during cross examination he has denied that any enquiry was conducted as such he cannot be said to be truthful witness. The complainant has admitted that news about the incident was published in newspapers but has denied that in said news four persons were alleged to have arrested. From his half admission and half denial it is proved that four persons were arrested with huge quantity of Charas but two were shown to have arrested, it is also matter of record that; district administration had taken notice and thereafter complainant started overt act of substitution of Charas and illegally in absence of accused recovered another phase of Charas from the truck which was in his custody, in these circumstances, when plea of false implication of accused and substitution of accused is put to juxta position, the plea of false implication of accused their substitution is more probable and near to truth. I therefore can do nothing but to answer both these points in negative. However from the evidence and charge of remaining Charas it is proved on the record that case against present accused is vexatious as such it is clear on the face of record that both complainant as well as mashir have played with the life of two innocent persons and substituted them with actual culprits, who were released by complainant and booked them in the case carrying punishment of death and or life imprisonment. In these circumstances office is directed to issue notice u/s 26 of NCS Act 1997 with section 182, 191 and 195 P.P.C to show cause as to why case under above sections should not be registered against them”.

7. It is settled law that ordinary scope of acquittal appeal is considerably narrow and limited and obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused is attached to the order of acquittal. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 Supreme Court 554), following guiding principles have been laid down for deciding an acquittal appeal in a criminal case:

“16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against ' acquittal is not the same, as against cases involving a conviction. In this behalf, it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are:

Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul-Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ 926), Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Farhat Azeem v. Asmat ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175), Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).

From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

8.  In the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others(2019 SCMR 1315), Hon'ble Supreme Court has held 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.”

9. 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.

10.    In the present case, there is no mention of arrival entry No.2 in the FIR, secret cavity was found by PW 2 E.C Liaquat Ali but P.W 1 / complainant Muhammad Younis has deposed that he found the secret cavity in the vehicle. It is also admitted that there were two slabs of the charas in each packet but case property when it was opened in the Court, three slabs were found in each packet. Brand name of the charas was also not mentioned in the mashirnama or in the F.I.R. P.W 1 / Complainant had also forgotten that he had separated samples from each slab or each packet. It is a matter of record that enquiry with regard to the narcotic was conducted but this fact was not brought on record. Complainant has also admitted that news was published in the newspaper that four persons alleged to have been arrested. Trial Court has rightly observed that there are infirmities in the prosecution case which has created doubt in the case of prosecution.

11.     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.

12. This Criminal Acquittal Appeal is without merit and the same is dismissed. These are the reasons of our short order announced on 27^th August 2019.

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Irfan/PA