THE
HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal
Appeal No. 253 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. Malik Khushal Khan and Fahad
Akbar 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 this appeal against
respondents/accused. It appears that respondents/accused were tried by Drug
Court Sindh at Karachi in Case No.03 of 2012 for offences under Sections 23(1)(i)
read with section 27(4) of the Drugs Act 1976. After regular trial, vide
judgment dated 25.03.2013, 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 three
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
25.03.2013 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 25.03.2013 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. Learned advocates for the
respondents/accused argued that acquittal appeal is 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 25.03.2013, on 07.09.2013 after
delay of more than 05 months. 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 their
contentions, reliance is placed upon the case of Hussain Bakhsh vs. Allah Bakhsh (1981 SCMR 410).
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 25.03.2013 for
the following reasons:
“In
view of the above discussion, facts and circumstances of the case, we are of
the firm opinion that all the witnesses have a contradiction, they are admitted
the violation of 103 Cr.P.C as well as both the witnesses are Government
employee and related to the Drug Inspector/Complainant Farzana Memon and both
the witnesses also admitted we are witnesses in other cases. 2nd
point regarding documents which was produced by the accused goes in favor of
accused because Drug Inspector/Complainant did not verified and called the
witness in the witness box (Author of documents). 3rd point is also
goes in favor of the accused. Qamaruddin s/o Ali Nawaz. The complainant as well
as both the witnesses are recorded their examination in chief as well as their
cross. In examination in chief they failed the role of accused simply the
complainant/Drug Inspector Farzana Memon is mentioned on the title page as
accused of the Qualified person of accused No.1 M/s Yasir Medical Store, Main
road, Odero Lal Village, Tehsil and Taluka Matiari.”
10. 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 25.03.2013 and
appeal against acquittal was filed on 07.09.2013 after delay of more than 05
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 05 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 05
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.
11. 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 admittedly there was
violation of section 103 Cr.P.C, the prosecution has failed to examine author
of the document produced at trial and that witnesses failed to describe the
role of the accused persons in their evidence. 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.
12. In
the present acquittal appeal, the findings of acquittal recorded by the Drug
Court are neither perverse, arbitrary, foolish, artificial, speculative nor
ridiculous.
13. 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