THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeals No. 200, 201 and 202 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) : M/s Makhdoom Ali Khan, Sami-ur-Rehman, Ghulam Hussain Shah, Fahad Khan advocates

Date of Hearing : 06.11.2023

Date of decision : 06.11.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State through Prosecutor General Sindh has filed these acquittal appeals against respondents/accused. It appears that respondents/accused were tried by Drug Court Sindh at Karachi in Cases No. 65, 66 and 67 of 2011 for offences under Sections 23(1)(a)(v)(vii)(ix) and (x) punishable under Section 27(2) and 27(4) of the Act and punishable under sub Rule (12) of Rule 19 of the Drugs (Licensing, Registering and Advertising) Rules, 1976 punishable under Sections 27(3) & (4) of the Act. After regular trial, vide judgment dated 03.01.2013, respondents/accused were acquitted.

INTRODUCTORY FACTS

2. As set out in the complaint are that on 16.10.2008, Drug Inspector inspected the store of the Services Hospital Karachi. He took samples of different drugs for analysis. Those samples of drugs included Respondent No.1’s (GSK) drugs “Amoxil 500 mg, Ampiclox 250 mg and 500 mg) (Drugs). Drug Inspector took five samples of GSK’s drugs, he then gave one sample to the pharmacist and obtained a receipt from him. On 18.10.2008 sealed samples of Drugs were sent to Provincial Drug Testing Laboratory Sindh at Karachi, Board and GSK. On 16.12.2008, Drug Inspector received test report 897/08 dated 15.12.2008 from Laboratory opining Drugs of substandard quality. On 19.12.2008 a copy of test report was sent to the Hospital, by directing not to supply drugs to the patients. A copy of it was also sent to GSK for taking immediate action for recalling drugs from national supply chain. On 17.01.2009, GSK objected to test report. It is alleged that on 24.03.2009, GSK’s case was referred to Board for further action. On 31.03.2009 National Institute of Health, Islamabad (NIH) through a test report 03-S/2009 declared drugs of substandard quality. It is alleged that on 13.04.2009 Board issued show cause notice to GSK asking it to explain its position in view of two conflicting reports. On 10.08.2010 Board in its 106^th meeting discussed the case of GSK and directed Drug Inspector concerned to institute proceedings against GKS in the concerned Drug Court. It is alleged that on 24.12.2011 Drug Inspector filed a complaint, alleging therein that GSK had violated Section 23(1)(a)(v),(vii),(ix) and (x) punishable under Section 27(2) and 27(4) of the Drugs Act 1976. It is further alleged that GSK violated Rule 19(12) for not complying with legal notice, hence it is punishable under Section 27(3) and (4) of the Drugs Act, 1976.

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

4. At trial, prosecution examined six witnesses. Thereafter, prosecution side was closed.

5. 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.

6. Trial Court after hearing learned counsel for the parties and assessment of evidence vide judgment dated 03.01.2013 acquitted the respondents/accused, hence these acquittal appeals are filed.

SUBMISSIONS ON BEHALF OF STATE

7. Mr. Khadim Hussain Addl. P.G argued that Prosecutor General was competent to file appeals against the judgment of acquittal and acquittal appeals were 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 these acquittal appeals.

SUBMISSIONS ON BEHALF OF RESPONDENTS/ACCUSED

8. Mr. Makhdoom Ali Khan learned advocate for the respondents/accused argued that acquittal appeals are time barred. Section 31(7A) of Drug Act, 1976 provides 30 days limitation to file an appeal against an order of acquittal passed by Drug Court. In the present case, it is submitted that an order of the acquittal was passed on 03.01.2013, on 19.04.2013 certified true copy of the judgment was obtained but appeal was filed on 13.06.2013 after delay of 161 days. It is argued that question of limitation against Government cannot be treated differently from an ordinary litigant; that delay of each and every day has not been explained; that no application under Section 31(8) read with Section 5 of Limitation Act has been filed by the State. Learned advocate for the respondents/accused submitted that Section 31(7A) of the Drug Act is a special law and provides a special procedure which would prevail over the provisions of Code of Criminal Procedure 1898. In support of his contentions, reliance is placed upon the case of Hussain Bakhsh vs. Allah Bakhsh (1981 SCMR 410). Mr. Makhdoom Ali Khan while arguing the appeals against acquittal, on merits submitted that P.W-03 Saleem Leghari Drug Inspector in cross-examination admitted that drugs were kept in hospital in strips without tropicalize foil in containers; that the samples were in his custody for 02 days and he had no proper storage conditions; Drug Inspector admitted that no details of protocols were mentioned in laboratory test report; that samples were collected by him from hospital were without tropicalize packing and admitted the results of both reports were in conflict with each other. Learned advocate for the respondents/accused has also pointed out deficiencies/omission in the evidence of remaining prosecution witnesses. Lastly, argued that scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added; that an accused shall be presumed to be innocent until proved guilty. In support of his submissions he relied upon the case of The State v. Abdul Khaliq and others (PLD 2011 S.C 554).

DISCUSSION AND ANALYSIS

9. We have carefully heard learned counsel for the parties and re-examined entire evidence available on record. It appears that trial Court acquitted the respondents vide judgment dated 03.01.2013 for the following reasons:

“From the above discussion, facts and circumstances of the case we are of the firm opinion that details of Protocols of test applied are not given in both the test reports of Provincial Drug Testing Laboratory and National Institute of Health Islamabad are conflicting each other and regarding the storage condition of Services Hospital Karachi was not provided and therefore both the test report are incomplete and defective and we also observed that every possibility that drug might have been deteriorate due to its improper storage after being taken out the samples from Services Hospital. We also observed that the Provincial Quality Control Board Sindh did not provide the chance of the Personal hearing to M/s GSK which is against the law. We also observed that the samples were removed from foil and after being cutted into pieces were put in containers for which there is possibility of deterioration of Product. Further we observed that no such notification describing the appointment of Government Analyst as contravarited by section 16 in respect of such drug or classes of drugs, or such area was ever made, therefore the report of Government Analyst is off authenticity as she was never appointed with the meaning of the Drug Act.”

10. Now, the question that falls for our consideration is whether acquittal appeals were time barred. The record reflects that an order of acquittal was passed by learned Drug Court on 03.01.2013. Appellant applied for certified true copy of the judgment on 19.04.2013 and appeals against acquittal were filed on 13.06.2013. These acquittal appeal were filed with delay of about 161 days. 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. These acquittal appeals are barred by 161 days. Delay in filing of the acquittal appeals 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 appeals having been filed after 161 days, 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 appeals against acquittal are liable to be dismissed on the sole ground of delay in filing of the appeals.

11. We have also re-examined the prosecution evidence. P.W-03 Saleem Leghari Drug Inspector in cross-examination admitted that drugs were kept by hospital in strips without tropicalize foil in containers; that the samples were in his custody for 02 days and he had no proper storage conditions; that no details of protocols were mentioned in laboratory test report; that results of both reports were in conflict with each other. It is an established position that the chain of safe custody and safe transmission of drugs must be safe and secure because, the Report of expert enjoys very critical and pivotal importance under Drug Act and the chain of custody ensures that correct representative samples reach the laboratory. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the drugs or its representative samples makes the report of the expert fail to justify conviction of the accused. The prosecution, therefore, is to establish that the chain of custody has remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the expert. In the present case safe custody and safe transmission of the drugs to the laboratory was not established before the trial Court. 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.

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

CONCLUSION

13. For the above stated reasons, we hold that acquittal recorded by the Drug Court requires no interference by this Court. As such, above appeals against acquittal are dismissed.

J U D G E

J U D G E