THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeals No. 324 and 325 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) : Mr. Abid Hameed Puri advocate

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 during trial respondents/accused moved applications under Section 265-K Cr.P.C which were heard and vide order dated 16.05.2013, they were allowed, consequently, respondents/accused were acquitted.

2. Brief facts of the prosecution case are already mentioned in the impugned judgment and need not to be reproduced here.

3. Mr. Khadim Hussain Addl. P.G argued that prosecution case was based upon documents and reports of the experts but trial court failed to provide a fair opportunity to the prosecution to produce oral and documentary evidence at trial. It is further submitted that acquittal of the respondents by trial Court under Section 265-K Cr.P.C was perverse in law. Learned Addl. P.G prayed for allowing these acquittal appeals.

4. Mr. Abid Hameed Puri counsel appearing for the respondents/accused argued that appeals were filed by incompetent person and the same were time-barred. Lastly, it is argued that after acquittal, respondents have earned double presumption of innocence and prayed for dismissal of this acquittal appeals.

5. We have carefully heard learned counsel for the parties and perused the order dated 16.05.2013, whereby the respondents have been acquitted under Section 265-K Cr.P.C.

6. As regards to the contention of learned Addl. P.G that prosecution was not provided fair opportunity to produce documentary evidence at trial, impugned order reflects that sound reasons have been assigned by the trial Court while acquitting the respondents. As regards to the filing of the appeal by incompetent person is concerned, admittedly it was filed by the Prosecutor General Sindh. Section 31(7A) of the Drugs Act, 1976 provides that a Federal Inspector or a Provincial Inspector may prefer appeal against an order of acquittal, but in the present case, acquittal appeal was filed by incompetent person. Drugs Act 1976 is a special law, which requires filing of appeal within 30 days of such order, but in the present case acquittal appeals are filed after delay of more than 5 months. Delay of each and every day has not been explained by the Government and law is very settled that Government cannot be treated differently from an ordinary litigant. Apart from above, the scope of interference in appeal against acquittal is 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 as held in the case of The State v. Abdul Khaliq and others (PLD 2011 Supreme Court 554), relevant portion is reproduced as under:

“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.”

7. The impugned order passed by learned trial Court is neither perverse nor speculative, but it is based upon sound reasons, which require no interference by this court.

8. For the above stated reasons, there is no merit in the appeal against acquittal. Finding of the innocence recorded against the respondents/accused by the trial Court are based upon sound reasons which require no interference at all. As such, instant Acquittal Appeals are without merit and the same are dismissed.

J U D G E

J U D G E