THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Acquittal Appeal No.D-13 of 2014

Before:

Mr. Justice Shamsuddin Abbasi

Mr. Justice Amjad Ali Sahito

Appellant: The State through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.

Respondents: Sadique Ali and Rafique Ahmed

Date of hearing: 25.10.2022.

Date of Judgment: 25.10.2022.

J U D G M E N T

AMJAD ALI SAHITO, J-. Being aggrieved and dissatisfied with the Judgment dated 08.09.2014 recorded in favour of the respondents/accused by the learned Sessions Judge/Special Judge, Narcotics, Shikarpur in Special Case No. 04/2014 arising out of FIR No.02/2013 for the offence under sections 9(c) read with Section 15 of the Control of Narcotic Substances Act, 1997 registered at Police Station Excise Circle, Shikarpur, whereby the respondents were acquitted from the charge, hence the State /appellant has filed the instant Criminal Acquittal Appeal.

2. The prosecution story in a nutshell is that Excise Inspector Madad Ali Khokhar alongwith his subordinate staff was present at Nursery situated on the main road leading from Shikarpur to Sukkur, when he stopped a Mini Bus/coaster bearing No.PE-3449 coming from Shikarpur side having two persons on board, on query they disclosed their names as Sadiq Ali and Rafique Ahmed. Search of the accused persons as well as coaster was conducted and Excise Police recovered 40 slabs of chars lying in toll box under passenger seat, which was weighed 40 kilo grams. Five kilograms of chars was sealed as sample remaining 35 KGs were sealed separately. Mashirnama got prepared in presence of Excise Constables Ghulam Akbar and Abdul Khalique, where after accused and property were brought at Police Station Excise Circle, Shikarpur and F.I.R was lodged.

3. After completing the investigation, Investigating Officer submitted the challan and after completion of all the legal formalities, the trial Court framed the charge against the accused/respondents No.1 and 2, to which they pleaded ‘not guilty’ and claimed to be tried.

4. At trial the prosecution in order to prove its case examined complainant/Excise Inspector Madad Ali Khokhar as P.W-1 at Ex.6, who produced mashirnama of arrest and recovery as Ex.6/A, F.I.R at Ex.6/B, Extract of entry No.3 at Ex.6/C, reports of Chemical Examiner as Ex.6/D&F, mashir EC Ghulam Akbar as P.W-2 at Ex.7, where after Special Prosecutor for the State closed the side of the prosecution vide statement Ex.8.

5. Trial Court recorded the statements of the respondents/accused under Section 342 Cr.P.C, wherein they denied the prosecution allegations leveled against them.

6. The learned trial Court, after hearing the learned counsel for the parties and appraisal of the evidence, acquitted the respondents/accused vide judgment dated 08.09.2014. The acquittal recorded by the learned trial Court has been impugned by appellant/State by way of this acquittal appeal.

7. It is contended by the learned Additional Prosecutor General, Sindh that the learned trial Court has not properly appreciated the material available on the record; that the prosecution has proved its case against the respondents beyond reasonable doubt; that the impugned order passed by the learned trial Court is illegal and result of misreading and non reading; and, that the learned Trial Court has committed error in facts and law while passing the impugned judgment. As there is direct evidence available on record connecting the accused with the commission of offence, which is enough to prove the charge against the respondents/accused. He, therefore, prays that the appeal may be allowed and the impugned judgment may be set aside.

8. We have heard the learned Additional Prosecutor General for the appellant/State and have gone through the material available on record.

9. The perusal of the record reveals that there are material contradictions in the evidence of the complainant and their witnesses. In the instant case the prosecution examined complainant Excise Inspector Madad Ali Khokhar, who produced mashirnama of arrest and recovery as Ex.6/A and F.I.R at Ex.6/B, Extract of Entry No.3 at Ex.6/C, report of Chemical Examiner at Ex.6/D&F, mashir E.C Ghulam Akbar as P.W-2 at Ex.7 and thereafter prosecution side was closed. While acquitting the respondents, learned trial Court has given a well reasoned judgment. Further in a case reported as 2021 SCMR 451 (Mst. Sakina Ramzan v/s. The State), the Hon’ble Supreme Court of Pakistan allowed the appeal and conviction was set aside on the ground that WHC was not recorded and he was not produced by the prosecution to confirm the safe custody of narcotic drugs after its recovery on 30.11.2013 and sent for report of chemical examiner on 13.12.2013, whereas incident had taken place on 30.11.2013. The prosecution also failed to examine WHC/Head Mohrar of the police station to prove chain of custody or safe custody and safe transmission of the narcotic drug begins with seizure of the narcotic drug by the law enforcement Officer, followed by separation of the representative samples of the seized narcotic drug. The chain of custody must be safe and secure. This is because, the report of Chemical Examiner enjoys critical importance under CNSA 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 drug or its representative samples make the report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and it is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner. In the instant case only two witnesses were examined and prosecution failed to establish the safe custody and safe transmission of the recovered drugs.

10. We have considered the submissions of learned Additional P.G and perused the record. From the perusal of judgment passed by the trial Court, it appears that the same is speaking one and does not suffer from any interference by this Court. In these circumstances, the learned trial Court was right to record the acquittal of the private respondents by extending them the benefit of the doubt and such acquittal is not found to have been recorded in an arbitrary or cursory manner, which may call for interference by this Court.

“ In case of The State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is held by the Hon’ble Apex Court 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 the heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. 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 in a grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findingsare perverse,arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal 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”.

11. We are fully satisfied with the appraisal of evidence done by the learned trial Court and are of the view that while evaluating the evidence, the difference is to be maintained in an appeal from conviction and acquittal appeal and in the latter case, interference is to be made only when there is a gross misreading of evidence resulting in miscarriage of justice. Learned counsel for the appellant failed to disclose any misreading and non-reading of evidence. In the case of Muhammad Zafar and another v. Rustam and others(2017 SCMR 1639), the Hon’ble Supreme Court of Pakistan has held that:-

“We have examined the record and the reasons recorded by the learned appellate court for acquittal of respondent No.2 and for not interfering with the acquittal of respondents No.3 to 5 are borne out from the record. No misreading of evidence could be pointed out by the learned counsel for the complainant/appellant and learned Additional prosecutor General for the State, which would have resulted into grave miscarriage of justice. The learned courts below have given valid and convincing reasons for the acquittal of respondents Nos. 2 to 5 which reasons have not been found by us to be arbitrary, capricious of fanciful warranting interference by this Court. Even otherwise this Court is always slow in interfering in the acquittal of accused because it is well-settled law that in criminal trial every person is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. As a sequel of the above discussion, this appeal is without any merit and the same is hereby dismissed”

12. The sequel of the above discussion is that we are satisfied with the appreciation of evidence evaluated by the learned trial Court while recording the acquittal of the respondents/accused persons by extending them benefit of doubt, which does not call for any interference by this Court. Consequently, the instant appeal merits no consideration and is dismissed.

J U D G E

Manzoor