THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No. 237 of 2007

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Amjad Ali Sahito

Appellant : The State/ Anti Narcotics Force through its Deputy Director (Law), through Mr. Habib Ahmed Special Prosecutor ANF

Respondent(s) : Nemo

Date of Hearing : 22.11.2023

Date of decision : 22.11.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State/ ANT through its Deputy Director (Law) has filed this acquittal appeal against respondents/accused namely Ajab Gul, Qadir Khan and Ashraf Ali. It appears that respondents/accused were tried by learned Judge, Special Court-II, CNS, Karachi in New Special Case No.43/2004 (old Special Case No. 215/2003) arising out of FIR No. 17/2003 for offence under Sections 6, 7, 8, 9, 12, 13, 14 and 15 of CNS Act 1997 registered at P.S ANF Clifton, Karachi. After regular trial, vide judgment dated 16.02.2006, 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 two 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 16.02.2006 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 16.02.2006 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7. The State/ANF filed instant acquittal appeal which pertains to 2007. Notices were issued against the respondents/accused, yet ANF has failed to serve the notices upon the respondents/accused.

8. Mr. Habib Ahmed Special Prosecutor ANF submits that reasons assigned by the trial Court for acquitting the respondents/accused are not sound and valid and impugned judgment is based upon speculations. Therefore, it is prayed the same requires interference by this Court.

9. We have carefully re-examined entire evidence available on record with the assistance of Special Prosecutor ANF. It appears that trial Court acquitted the respondents/accused vide judgment dated 16.02.2006 for the following reasons:

“19. Complainant in his cross examination has admitted that in 161 Cr.P.C statement, FIR and memo it is not sated that after sealing the samples they had put their signatures on the same. When the defence plea is that owner of the truck had had been let off and the accused person shave been falsely implicated. Looking to this defence plea and reply of the complainant/I.O it appears that the sampling was not done at the spot whereby the chemical report is not to be relied upon and the prosecution case has become doubtful. it is also important to note that owner of the truck is not disclosed and not arrested in this case, therefore, from this also the defence plea gets strength.

20. So far as accused Ashraf Ali is concerned, he has admitted that he was sleeping on the room of the truck and nothing from his physical possession is recovered, therefore his mere presence at the spot alone will not implicate him in this case for want of other corroborative piece of evidence and prove that he had knowledge of presence of charas in the truck and that truck was being used for transporting the charas.

21. There is also discrepancies in respect of number of samples taken and sent to the chemical examiner in the evidence of the prosecution whereby to the prosecution case has become doubtful.”

10. We have heard Special Prosecutor ANF and with his assistance perused the evidence available on record. We agree with the findings of the trial Court that prosecution has failed to prove its’ case against the respondents/accused beyond shadow of reasonable doubt. From close scrutiny of evidence, it transpires that apart from the above reasons recorded by the trial Court, the prosecution had also failed to prove safe custody and safe transmission of the narcotics to the chemical examiner for the reasons that according Inspector Jehangir Khan, after arrest and recovery, accused and case property were brought to Police station, but no where in his evidence has mentioned that to whom he handed over alleged recovered narcotics. Record reflects that alleged recovery was effected on 22.05.2003 whereas narcotics was received in the office of chemical examiner on 24.05.2003 without any plausible explanation as to where remained these sample parcels from 22.05.2003 to 24.05.2003. Neither incharge of Malkhana nor PC Rashid Raza who deposited the narcotics in the office of chemical examiner has been examined to prove safe custody and safe transmission. In a case where the prosecution fails to examine Incharge of Malkhana and the person, who deposited the narcotics in the office of chemical examiner, such defect on the part of the prosecution it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused persons beyond any reasonable doubt. It is an established position that the chain of safe custody and safe transmission of narcotics must be safe and secure because, the Report of Chemical Examiner enjoys very critical and pivotal importance under CNS Act and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples vitiates the conclusiveness and reliability of the report of the Chemical Examiner. 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 Chemical Examiner, which the prosecution has failed to prove in the present case.

11. In any event, 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 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.”

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

13. 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, this Acquittal Appeal is without merit and the same is dismissed.

JUDGE

JUDGE