JUDGMENT SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR.
Criminal Acquittal Appeal No.D-36 of 2007
Before:
Mr. Justice Muhammad Faisal Kamal Alam
Mr.
JusticeAmjad Ali Sahito,.
Date of hearing: 16.02.2022.
Date of Judgment: 16.02.2022.
Appellant: Mr.
Aftab Ahmed Shar, Additional P.G
None
present for the Respondent/accused.
J U D G M E N T
AMJAD ALI SAHITO, J-.Being aggrieved and dissatisfied with
the judgment dated 07.05.2007recorded under Section 245-(i) Cr.P.C. in favour
of the respondent/accusedby the learnedJudge Special Court for CNS, Khairpurin
Special Case No. 01 of 2004 arising out of the FIR No.03/2004 for offence under
sections9 (c) CNS Act, 1997registered at PS Excise Police stationKhairpur
Circle whereby the respondent was acquitted from the charge.
2. The
facts in brief necessary for disposal of instant acquittal appeal are that on
17.02.2004 complainantSajjadHussain Shah Assistant Excise and Taxation Officer
KhairpurExcise Police Station Khairpur circle received secret information that
charas was being transported from Peshawar to Karachi in a double cabin with a
forged number plate bearing number of Bajore Agency. Complainant AETO Syed
SajjadHussain Shah along with his subordinates E.I Munwar Ali Shah, ED Ahmed
Khan, EC Syed Shahid Hussain Shah, EC Munawar Ali Bhatti, EC Muhammad Azam, EC
Arshad Ali, EC Inayatullah, EC WazeerHussain left Circle Office vide entry No.2
and came to new National Highway near Jungle Khan Hotel. After a while a vehicle
bearing No. Arrow 911386 was signalled to stop but driver instead of stopping
the vehicle speeded up and ran away. Excise Police chased vehicle and
intercepted near shirne of PirSurk Ali Badhsha where they saw that Army
personnel alighted from the vehicle who started firing on the Excise Police and
while firing ran towards banana garden. The Excise Police also fired in their
defense and apprehended one of them who was in the uniform of Bajore squad
while remaining culprits made their escape good. Thereafter in presence of ED
Ahmed Khan and EC Syed Shahid Hussain Shah apprehended person who disclosed his
name as Izzatullah resident of Barra Agency and claimed to be driver of the
vehicle. On his personal search cash of Rs. 1500/- and NIC were secured from his
pocket. Apprehended person was then brought near Double cabin, 30 bags of
charas were found lying in the rear cabin of the vehicle. The bags were opened
and each bag was containing 20 slabs of charas. On further search some diaries
and visiting Cars were found in the cash board and six magazines loaded with 90
bullets and two number of plates bearing No. D-7361 Peshawar, one jersey with
crown of Major and three jercies of constables, four caps, four belts and two
empty pourches of magazines were also secured. One Identity Card was found in
the pocket of jersey with crown of Major rank in the name of Muhammad
NasirMasood. Slabs of charas were weighed and weight of each slab was found to
be one kilogram. Then charas was stuffed into 15 bags of blue colour and one
slab was taken out from each bag for chemical examination thus 15 slabs were
sealed in one bag and the remaining bags were also sealed. The accused
disclosed the names of his accomplices as Muhammad Nasir, Masood, GulNabi,
Muhammad. After apprehension of accused and property complainant lodged FIR.
3. After
completing the
investigation, Investigation Officer submitted the challan and after completion
of all the legal formalities the trial court framed the charge against the
accused to whichhe pleaded ‘not guilty’ and claimed to be tried.
4. The charge was framed against respondent/accused
by the trial Court, to which he pleaded not guilty and claimed to be tried.
5. At the trial, in order to establish
accusation against the accused, the prosecution AETO Syed SajjadHussain Shah at
Exh.4 he produced memo of arrest and recovery , FIR, memo of recovery of Kalashnikov,
Chemical Report, Departure entry. EDMuhammad Khan and ECWazeer Ali were also
examined thereafter prosecution
closes its side.
6.
Trial Court recorded statement of the
respondent/accused under Section 342 Cr.P.C, wherein he denied the prosecution
allegations leveled against him. However,
neither he examined himself on oath nor led defense evidence.
7. The learned trial Court, after hearing the learned counsel
for the parties and appraisal of the evidence, acquitted the respondent/accused
vide judgment dated 07.05.2007.The acquittal recorded by the learned trial
Court has been impugned by the State through Assistant Advocate General & Ex-Officio
Public Prosecutor Sukkur before this Court by way of filing the instant
Criminal Acquittal Appeal.
8.
Learned Additional Prosecutor General
contended that all the witnesses
belonging to Excise Department have fully supported case of prosecution but
their evidence was not appreciated by the learned trial court; that there are
minor contradictions in the evidence of witnesses and on the basis of minor
contradictions, accused was acquitted; that learned trial court has committed
illegality while acquitting the respondent/accused and there was huge evidence
for conviction of respondent/acused.
9. While on the other hand, none appeared on behalf of
respondent/accused who despite issuance of B.Ws, N.B.Ws and publication of
notice in three newspapers could not appear / come forward.
10. We have heard learned Additional Prosecutor General for State and with
his assistance have gone through the evidence as well as impugned judgment.
11. The case of prosecution is thaton 17.02.2004
complainant SajjadHussain Shah Assistant Excise
and Taxation Officer Khairpur Excise Police Station Khairpur circle received
secret information that charas was being transported from Peshawar to Karachi
in a double cabin with a forged number plate bearing number of Bajore Agency.
Complainant AETO Syed SajjadHussain Shah along with his subordinates E.I Munwar
Ali Shah, ED Ahmed Khan, EC Syed Shahid Hussain Shah, EC Munawar Ali Bhatti, EC
Muhammad Azam, EC Arshad Ali, EC Inayatullah, EC WazeerHussain left Circle
Office vide entry No.2 and came to new National Highway near Jungle Khan Hotel.
After a while a vehicle bearing No. Arrow 911386 was signalled to stop but
driver instead of stopping the vehicle speeded up and ran away. Excise Police
chased vehicle and intercepted near shirne of PirSurk Ali Badhsha where they
saw that Army personnel alighted from the vehicle who started firing on the
Excise Police and while firing ran towards banana garden. The Excise Police
also fired in their defense and apprehended one of them who was in the uniform
of Bajore squad while remaining culprits made their escape good. Thereafter in
presence of ED Ahmed Khan and EC Syed Shahid Hussain Shah apprehended person
who disclosed his name as Izzatullah resident of Barra Agency and claimed to be
driver of the vehicle. On his personal search cash of Rs. 1500/- and NIC were
secured from his pocket. Apprehended person was then brought near Double cabin,
30 bags of charas were found lying in the rear cabin of the vehicle. The bags
were opened and each bag was containing 20 slabs of charas. On further search
some diaries and visiting Cars were found in the cash board and six magazines loaded
with 90 bullets and two number of plates bearing No. D-7361 Peshawar, one
jersey with crown of Major and three jercies of constables, four caps, four
belts and two empty pourches of magazines were also secured. One Identity Card
was found in the pocket of jerky with crown of Major rank in the name of
Muhammad NasirMasood. Slabs of charas were weighed and weight of each slab was
found to be one kilogram. Then charas was stuffed into 15 bags of blue colour
and one slab was taken out from each bag for chemical examination thus 15 slabs
were sealed in one bag and the remaining bags were also sealed.
12. From perusal of judgment passed by the trial
Court it reveals that there are material contradictions in the evidence of
complainant and mashir of recovery as there is no mention in the FIR that
Excise Police left circle office in any vehicle while the witnesses in their
depositions during cross examination stated that they had left Police Station
in a Datsun pickup. According to evidence of complainant and mashir PW Ahmed
Khan they came to Jungle Hotel where they started checking the vehicles and
after some time vehicle was seen coming which was signalled to stop but
according to mashirnama of arrest and recovery the place of occurrence is shown
as National Highway near Jungle Khan Hotel. Furthermore, in the encounter
nobody was injured from either side. No empties were recovered from place of
occurrence. The recovery of Kalashnikov with magazine after 12 hours of
incident does not corroborate the facts that the weapon was used for commission
of offence under CNS Act. The material fact fatal to the prosecution case as
pointed out by the trial Court is that according to prosecution 30 bags were
found in the cabin and each bag was found stuffed with 20 slabs of charas. The AETO instead of taking the sample from each
slab, the slabs were stuffed in 15 bags. Mashir of recovery admitted that the
samples sent to the Chemical Laboratory were not 30 in number and only 15
stripes were sealed for chemical examination whereas Report of Chemical Examination
shows description of articles contained in the parcel as 15 printed plastic
bags each packet containing two black brown slabs which clearly shows that each
packet contained two slabs and infact 30 slabs weighing 15 kilograms were sent
to Chemical Exmainer. Apart from above material contradictions, it was alleged
that accused was apprehended in the uniform of Bajore Agency but the same has
not been secured and preserved as case property.
13.
Wehave considered the arguments of learned
Additional P.Gand perused the record. From perusal of judgment passed by the
trial Court it appears that the same is speaking one and does not suffer from
any interference by this Court. In these circumstances, the learned trial
Court obviously was right
to record acquittal of the private respondent by extending him benefit of doubt and
such acquittal is not found to have been recorded in arbitrary or cursory
manner, which may call for interference by this Court.
“ In
case of The State and others vs. Abdul Khaliq and
others (PLD 2011 SC-554), it is held by
the Hon’ble Apex Court 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.
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. Judgment of acquittal should not be interjected
until the findingsare perverse,arbitrary, foolish, artificial, speculative and ridiculous.
The Court of appeal should not interfere simply for the reason that on the
reappraisal 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”.
14.
We are fully satisfied with
appraisal of evidence done by the learned trial Court and are of the view that
while evaluating the evidence, the 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. Learned counsel for the appellant failed to disclose
any misreading and non-reading of evidence. In the case of Muhammad Zafar and another v.
Rustam and others(2017 SCMR 1639), the Hon’ble Supreme Court of
Pakistan has held that:-
“We have examined the record and the reasons
recorded by the learned appellate court for acquittal of respondent No.2 and
for not interfering with the acquittal of respondents No.3 to 5 are borne out
from the record. No misreading of evidence could be pointed out by the learned
counsel for the complainant/appellant and learned Additional prosecutor General
for the State, which would have resulted into grave miscarriage of justice. The
learned courts below have given valid and convincing reasons for the acquittal
of respondents Nos. 2 to 5 which reasons have not been found by us to be
arbitrary, capricious of fanciful warranting interference by this Court. Even
otherwise this Court is always slow in interfering in the acquittal of accused
because it is well settled law that in criminal trial every person is innocent
unless proven guilty and upon acquittal by a court of competent jurisdiction
such presumption doubles. As a sequel of the above discussion, this appeal is
without any merit and the same is hereby dismissed”
15. In
view of facts and reasons discussed above, the instant Criminal Acquittal
appeal is dismissed.
J U D G E
J U D G E
Irfan/PA
14.
I am fully satisfied with appraisal of
evidence done by the learned trial Court and I am of the view that while
evaluating the evidence, the 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. Learned counsel for the appellant failed to disclose any misreading
and non-reading of evidence. In the case of Muhammad Zafar and another v.
Rustam and others(2017 SCMR 1639), the Hon’ble Supreme Court of
Pakistan has held that:-
“We have examined the record and the reasons
recorded by the learned appellate court for acquittal of respondent No.2 and
for not interfering with the acquittal of respondents No.3 to 5 are borne out
from the record. No misreading of evidence could be pointed out by the learned
counsel for the complainant/appellant and learned Additional prosecutor General
for the State, which would have resulted into grave miscarriage of justice. The
learned courts below have given valid and convincing reasons for the acquittal
of respondents Nos. 2 to 5 which reasons have not been found by us to be
arbitrary, capricious of fanciful warranting interference by this Court. Even
otherwise this Court is always slow in interfering in the acquittal of accused
because it is well settled law that in criminal trial every person is innocent
unless proven guilty and upon acquittal by a court of competent jurisdiction
such presumption doubles. As a sequel of the above discussion, this appeal is
without any merit and the same is hereby dismissed”
15. The sequel of the above discussion is that I
am satisfied with the appreciation of evidence evaluated by the learned trial
Court while recording acquittal of the respondents/accused persons by extending
the benefit of the doubt, which does not call for any interference by this
Court. Consequently, the instant appeal merits no consideration and is
dismissed accordingly.
16. These of reasons of my short order announced
in earlier part of the day whereby the instant acquittal was dismissed.
JUDGE
Irfan/PA