HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.292 of 2012

Present: Sajjad Ali Shah, J.

Naimatullah Phulpoto, J.

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

Date of hearing: 18.02.2013

Date of announcement: 18.03.2013

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Through this criminal acquittal appeal Appellant/the State/ANF has impugned order dated 16.08.2011 passed by learned Judge Special Court-I (Control of Narcotics Substances), Karachi in Special Case No.131/2007 State versus Meenadar and others bearing Crime No.73/2007 under section 6/9(c) of the Control of Narcotics Substances Act, 1997, P.S-I, ANF Clifton, Karachi, whereby the learned Judge, Special Court-I (Control of Narcotics Substances) Karachi acquitted accused/respondent Meenadar Haji Amin under section 265-K, Cr.PC.

2. Brief facts leading to the prosecution case are that on 28.10.2007 ANF officials received information that respondent/accused Haji Meenadar and Haji Mursaleen through their associates Zamrey Khan and Baaz Muhammad were smuggling narcotics to UK through TCS and OCS or TNT. On 29.10.2007, I.O. Sher Muhammad Mustafa was informed by the Manager TNT Muhammad Umair on telephone that nine pieces of carpets have reached at head office through Saddar branch and requested for checking of the consignment. Raiding party arrived there and after checking the pieces of the carpet, recovered thin plastic tubes stitched in carpets, containing heroin powder weighing 600 grams from each carpet, total heroine powder weighing 5.400 Kgs. was recovered, out of nine tubes 5/5 grams of heroin powder was separated for chemical examination. FIR was registered under the above referred sections. After usual investigation challan was submitted under section 173 Cr.PC before the Special Court of CNS against the accused persons. Respondent/accused was shown as absconder and he was declared as proclaimed offender. Co-accused Baz Muhammad Khan faced the trial. Accused Baz Muhammad Khan was convicted by the trial Court vide judgment dated 19.05.2010. Respondent Meenadar Haji Amin was acquitted by learned Judge Special Court-I (Control of Narcotics Substances) Karachi vide order dated 16.08.2011 for the following reasons:

“I have heard the application and perused the record. It is an admitted position that there is no evidence against the accused Meenadar and his name was inserted only on the basis of the spy information and statement of co-accused Baz Muhammad.

The learned SSP conceded that the confessional statement of the accused before the police officer is not admissible and similarly, he does not dispute that a statement of an accused against co-accused, is no evidence in law. The learned Counsel for the accused states that the repetition of the evidence in the present second round, will serve no purpose, for the evidence already led in the matter, is the only material, possessed by the prosecution against all the accused persons, which carries no positive piece of evidence against the accused in hand, as also, the same is worthless against the absconding ones as well. The perusal of the record supports the learned counsel. The evidence is insufficient rather there appears no positive piece of evidence to prove any offence against the present accused and similar position exists in the case for absconders. Resultantly, the application stands allowed and the accused acquitted from the charge of the case. The other accused also stand so acquitted for the same reasons, in the interest of justice.”

3. Mr. Habib Ahmad, learned Special Prosecutor, argued that trial Court was supposed to exercise powers sparingly and judicially and in no way arbitrarily and capriciously. However, through prosecution evidence he could not point out any incriminating piece of evidence against the appellant to connect him in the commission of offence.

4. In our considered view, prosecution failed to collect any incriminating evidence against the respondent/accused except arrest of main accused from his car at Peshawar. There was no probability of the conviction of respondent/accused in this case. Confession by accused, while in custody of the police, is inadmissible under Article 39 of the Qanun-e-Shahadat Order 1984. The burden to prove its case beyond reasonable doubt squarely rests on the prosecution and the prosecution has failed to discharge its burden. Under section 265-K Cr.PC respondent has rightly been acquitted by the trial Court as there was no probability of conviction of the accused in the case. Finding of the trial Court is neither artificial nor ridiculous. So far as the scope of acquittal appeal is concerned, it is settled law that ordinary scope of acquittal appeal is considerably narrow and limited and obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused is attached to the order of acquittal. In case of Zaheer Din Vs. The State (1993 S.C.M.R 1628), following guiding principles have been laid down for deciding an acquittal appeal in a criminal case:-

“However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:-

(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well accepted presumptions: One initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.

(2) The acquittal will not carry the second presumption and will also thus lose the first one if on pints having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.

(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view while examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observations of some higher principle as noted above and for no other reason.

(4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.”

6. For the above stated reasons we find no merit in the criminal acquittal appeal and consequently it is dismissed.

JUDGE

JUDGE

Gulsher/PA