THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No. 203 of 2013

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Amjad Ali Sahito

Appellant : The State through Prosecutor General Sindh through Mr. Khadim Hussain Addl. P.G

Respondent(s) : Nemo

Date of Hearing : 06.11.2023

Date of decision : 06.11.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State through Prosecutor General Sindh has filed this appeal against respondents/accused. It appears that respondents/accused were tried by Drug Court Sindh at Karachi in Case No.12 of 2012 for offences under Sections 23(1)(a)(i)(iii)(v)(vii)(x) & 23(1)(b)(f) punishable under Section 27(1)(a)(b)(c) and 27(4) and 30 of the Drugs Act 1976. After regular trial, vide judgment dated 28.03.2013, respondents/accused were acquitted.

2. Trial Court framed charge against the respondents/accused to which they pleaded not guilty and claimed to be tried.

3. At trial, prosecution examined eleven witnesses. Thereafter, prosecution side was closed.

4. Trial Court recorded statement of respondents/accused under Section 342 Cr.P.C. Respondents/accused claimed their false implication in the case. Respondents/accused neither examined themselves on oath under section 340(2) Cr.PC in disproof the prosecution allegations nor led any evidence in their defence.

5. Trial Court after hearing learned counsel for the parties and assessment of evidence vide judgment dated 28.03.2013 acquitted the respondents/accused, hence this acquittal appeal is filed.

6. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 28.03.2013 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7. Mr. Khadim Hussain Addl. P.G argued that Prosecutor General was competent to file appeal against the judgment of acquittal and acquittal appeal was filed within time as provided under Section 417(1) Cr.P.C. Addl. P.G further argued that prosecution evidence was reliable and trustworthy supported by positive report of the expert; that there were not material contradictions in prosecution evidence. It is submitted that trial Court failed to correctly evaluate the credibility of the witnesses and has not properly weighed the evidence produced before the trial Court. Lastly, it is submitted that trial Court failed to appreciate the evidence according to settled principles of law and prayed for allowing this acquittal appeal.

8. We have carefully re-examined entire evidence available on record with the assistance of Addl. P.G. It appears that trial Court acquitted the respondents vide judgment dated 28.03.2013 for the following reasons:

“We also observed the test report submitted by the complainant with the complaint bearing test report No. 494/2011 dated 22.09.2011, 497/2011 dated 22.09.20211, 501/2011 dated 24.09.2011 issued by Provincial Government Analyst/ Director Drug testing Laboratory Sindh, Karachi, test report bearing No. RSG 01/2011 dated 18.11.2011 issued by the Federal Government Analyst, Karachi and test report bearing No. TRA 23383/ DTL dated 23.11.2011 and TRA 23317 by DTL dated 22.11.2011 by the Government Analyst Drug Testing Laboratory Lahore. All the test report issued by the Government Analyst, DTL Karachi illegal and become unauthentic proof regarding the conclusion drawn by the Government Analyst because the notification of appointment of the Government Analyst/Director DTL Karachi U/s 16 of the Drug Act 1976 is defective and the test report does not contain the full Protocol of test applied and also the protocols applied are of USP 2010 which was no more official as USP 2011 had already become official with effect from dated 01.05.2011 hence the Government Analyst has violated the provision of Section 3(z)(ii)(iv) of the Drug Act 1976.

We are considered view the reports of Government Analyst/Federal Government Analyst being illegal and of no lawful authority cannot be read as evidence against the accused and they did not fulfill the requirement of section 16 of the Drug Act 1976 and we also observed regarding the lodging of FIR. The FIR has been recorded in violation of section 11(5)(b) and 19(6) of the Drug Act 1976 Read with Rule 4 of the Drug Rules, 1989 the Criminal case under Section 23/27 could not be registered without prior permission of the P.Q.C.B set up under section 11 of the Act. Further the complainant did not seek any permission for the P.Q.C.B in the absence of permission from the competent authority the proceedings suffer from CORAM and NON JUDICIA as initiated against the mandatory provisions of law, therefore, best on malafidely and without lawful authority the subsequent proceedings, best on the FIR, illegally lodged are also bound to fall from the ground automatically.”

9. Now, the question that falls for our consideration is whether acquittal appeal was time barred. The record reflects that an order of acquittal was passed by learned Drug Court on 28.03.2013 and appeal against acquittal was filed on 11.07.2013 after delay of more than 03 months. Under Section 31(7-A) of the Drugs Act 1976, a Federal Inspector or a Provincial Inspector may, on being directed by the Federal Government or, as the case may be, by the Provincial Government, prefer appeal against an order of acquittal or inadequacy of sentence passed by the Drug Court within thirty days of such order. It may be observed here that provisions of special enactment provides special procedure, it would prevail over the provisions of Code of Criminal Procedure, 1898. This acquittal appeal is barred by more than 03 months. Delay in filing of the acquittal appeal cannot be condoned unless it is shown that the state was precluded from filing the appeal in time due to some act of acquitted respondents or by some circumstances of a compelling nature, beyond the control of the State. The reason for taking the strict view is that in most jurisdictions an acquittal, once recorded by a competent Court is final and the matter cannot be reopened at the instance of any party including the State. However, under the law, an acquittal can be challenged in certain circumstances, but if it is not challenged within the period allowed by law it becomes final. In these circumstances, it is only just and proper that appeal against acquittal must not be entertained if it is filed beyond time, unless it be shown that state was prevented from moving the same by an act of the acquitted accused or by some circumstance of a compelling nature beyond the control of the state. Winding up the above noted discussion on the point of limitation, the acquittal appeal having been filed after delay of more than 03 months, have created valuable rights in favour of the respondents. It is held in the case of Hussain Bakhsh vs. Allah Bakhsh (1981 SCMR 410) as under:

“It must also be stated that it has been the consistent view of this Court, as expressed in Nazar v. The State (1968 S C M R 71), Jalal Khan v. Lakhmir (1968 S C M R 1345), Muhammad Khan v: Sultan (1969 S C M R 82), Piran Ditta v. The State (1970 S C M R 282), and Nur Muhammad v. The State (1972 S C M R 331), that in petitions against acquittal delay cannot be condoned unless it is shown that the petitioner was precluded from filing his petition in time due to some act of the acquitted respondents; or by some, circumstance of a compelling nature; beyond the petitioner's control. The reason for taking the strict view is that in most jurisdictions an acquittal, once record by a competent Court is final, and the matter cannot be reopened at the instance of any party including the State. However under our law, an acquittal can be challenged in certain circumstances, but if it is not challenged within the period allowed by law, it becomes final. In these circumstances is only just and proper that a petition against acquittal must not be entertained if it is filed beyond time, unless it be shown that the petitioner was prevented from moving the wine by an act of the acquitted accused; or by some circumstance of a compelling nature beyond the control of the petitioner.”

We have found no sufficient cause to condone the delay, filed by an incompetent person. The appeal against acquittal is liable to be dismissed on the sole ground of delay in filing of the appeal.

10. We have also re-examined the prosecution evidence, we have found that prosecution has failed to establish its case beyond shadow of reasonable doubt for the reasons that prosecution has failed to establish its case beyond shadow of reasonable doubt for the reasons that all the test reports issued by Government Analyst, DTL Karachi were declared illegal as Notification for appointment of the Government Analyst/Director DTL Karachi as provided under the Drugs Act was found defective and such reports did not contain full protocol of test. It was further observed by the trial Court that the FIR was registered without prior permission of PQCB as provided under Section 11 of the Act. Trial Court has mentioned the anomalies and weaknesses in the prosecution case, made the prosecution case doubtful. Attention of Addl. P.G has been drawn to those contradictions but he could not satisfy the Court. Trial Court has rightly held that there are several circumstances in the prosecution case which have created reasonable doubt. A single doubt is sufficient for recording the acquittal. The findings of the trial Court were based upon sound reasons. On our re-examination, we are unable to take different view. Moreover, scope of interference in appeal against acquittal by this Court 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. Normally courts are very slow in interfering with such an acquittal 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.

11. In the present acquittal appeal, the findings of acquittal recorded by the Drug Court are neither perverse, arbitrary, foolish, artificial, speculative nor ridiculous.

12. For the above stated reasons, we hold that acquittal recorded by the Drug Court requires no interference by this Court. As such, above appeal against acquittal is dismissed.

J U D G E

J U D G E