THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No. 52 of 2023

 

 

 

Present:          Mr. Justice Naimatullah Phulpoto

                                                                                                                          Mr. Justice Khadim Hussain Tunio

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Appellant                         :               The State through Prosecutor General Sindh through Mr. Ali Haider Saleem Addl. P.G

 

Respondent                      :               Nemo

 

                                                           

Date of Hearing               :              29.01.2024

 

Date of decision               :              29.01.2024

 

 

                                 JUDGMENT

 

NAIMATULLAH PHULPOTO, J.- The State through Prosecutor General Sindh has filed this appeal against respondent/accused Abdul Wahid. It appears that respondent/accused was tried by learned 1st Additional Sessions Judge/ Special Court (CNS) Karachi Central in Special Case No.112 of 2022. After regular trial, vide judgment dated 14.09.2022, respondent/accused was acquitted.

2.         Brief facts leading to the filing of instant Acquittal Appeal are that on 10.01.2022 at about 1750 hours, SIP Abdul Ghani had arrested accused Abdul Wahid from a room situated in PS Joharabad and recovered two packets of charas weighing 2400 grams, one cellular phone and cash of Rs.1000/-. mashirnama of arrest and recovery was prepared in presence of mashirs, sealed the case property and brought accused and case property to the police station where FIR vide Crime No. 12/2022 for offence under Section 9(c) of CNS Act 1997 was registered on behalf of State.

3.         During investigation, charas was sent to chemical examiner and positive report was received. On conclusion of investigation, final report was submitted against the respondent/accused under the above referred section.

4.         Trial Court framed charge against the respondent/accused, to which he pleaded not guilty and claimed to be tried.

5.         At trial, prosecution examined three witnesses. Thereafter, prosecution side was closed.

6.         Trial Court recorded statement of respondent/accused under Section 342 Cr.P.C. Respondent/accused claimed his false implication in the case. Respondent/accused neither examined himself on oath under section 340(2) Cr.PC to disprove the prosecution allegations nor led any evidence in his defence.

7.         Trial Court after hearing learned counsel for the parties and assessment of evidence vide judgment dated 14.09.2022 acquitted the respondent/accused, hence this acquittal appeal is filed.

8.         The facts of the case in detail as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 14.09.2022 passed by the Trial Court, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9.         Ms. Rahat Ahsan Addl. P.G argued that there was huge evidence against the respondent; that trial Court in the impugned judgment has mentioned that prosecution has succeeded to prove Points No. 3 and 4, even then trial Court recorded acquittal on the ground that recovery of the Charas was not made from exclusive possession of the respondent/accused. It is argued that trial Court has failed to appreciate the evidence according to settled principles of law. She prayed for allowing this acquittal appeal.

10.       We have carefully re-examined entire prosecution evidence available on record with the assistance of Addl. P.G. It appears that trial Court acquitted the respondent/accused vide judgment dated 14.09.2022, mainly for the following reasons:

“39.   From perusal of evidence of prosecution side the entire case becomes doubtful. As such the exclusive possession of the accused regarding place of incident viz. one room in PS-Jauharabad, availability of accused at place of incident and connection of recovery of 2400 grams chars from possession of accused are not proved. It is held in the case of Tariq Parvaiz v/s The State 1995 SCMR 1345 that not many but only single doubt is sufficient to extend its benefit to accused.”

 

11.       Record reflects that trial Court appreciated the entire evidence carefully and finally reached to the conclusion that the prosecution had utterly failed to establish the guilt of respondent/accused beyond reasonable doubt. Additional Prosecutor General Sindh could not controvert the findings recorded by the learned trial Court that recovery of the Charas was not made from exclusive possession of the respondent/accused. It is a well-settled proposition of law that in an appeal against acquittal, the Court would not ordinarily interfere and would instead give due weight and consideration to the findings of the Court acquitting the accused which carries a double presumption of innocence, i.e. the initial presumption that an accused is innocent until found guilty, which is then fortified by a second presumption that once the Court below confirms the assumption of innocence, which cannot be displaced lightly. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 SC 554) the Apex Court, while considering numerous pronouncements held that 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, or suffering from the errors of grave misreading or non-reading of the evidence. Such judgments should not be lightly interfered with and a 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; that the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of Apex 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. 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, and the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities.

12.       The impugned judgment passed by learned trial Court is neither perverse nor speculative, but it is based upon sound reasons, which requires 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 respondent/accused by the trial Court are based upon sound reasons which require no interference at all. As such, instant Acquittal Appeal is without merit and the same is dismissed.

 

J U D G E

 

J U D G E