Criminal Acquittal Appeal No. 146 of
2011
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Khadim Hussain Tunio
Date of Hearing: 26.09.2017
Date of
announcement of judgment: 02.10.2017
Appellant: The
State/ANF through Mr. Habib Ahmed Special Prosecutor.
Respondent: Qadir
s/o Miskeen not appeared.
NAIMATULLAH PHULPOTO, J: Respondent/accused was tried by learned Special
Judge-I (CNS) Karachi, in Special Case No.50/2006 for offences under Sections 6/9 (c) of the
Control of Narcotic Substances Act, 1997 registered at P.S. ANF-II, Karachi, by
Judgment dated 18.09.2010, Respondent/accused was acquitted by extending him benefit of doubt. State/ANF filed instant Criminal
Acquittal Appeal No.146 of 2011 against the acquittal recorded by the trial
Court.
2. Brief
facts leading to the filing of the appeal against acquittal are that on
19.05.2006, Sub-Inspector Khalid-uddin Khan of P.S ANF-II, Mohammad Ali
Society, Karachi along with his subordinate staff left P.S vide
Entry No.13 at about 1700 hours for patrolling towards Korangi. During
patrolling they received information that Mohammad Miskeen along with his son
Qadir openly running business of narcotic and his adda was situated in Bilal
Colony, Mohammad Ali Goth. They reached the pointed place at 1830 hours, on
seeing them, one person ran away by scaling over the wall of the H.No.BCCA/015,
ANF officials chased him, but he succeeded to escape away. PC Mohammad Nasir
and HC Mohammad Aslam acted as mashirs and they searched the house. They
secured seven nylons thellas from the room of the house. On checking 6 Kattas
containing Kuppies while one Katta containing charras in the shape of roads,
slabs and one packet charras garda and puries of garda charras were found. Four
Kattas were containing 54/54 Kuppies each whereas two Kattas containing 55/55
Kupies, one bottle was drawn as sample from each Katta. Samples were taken from
all the 6 Kattas, remaining recovered kuppies were packed in same Kattas and
sealed. All recovered Charras in rods, pieces and slabs were packed in the same
Kattas and sealed for chemical examination. Samples weighing 10 grams was
separated from the garda charras and sealed for chemical analyzer,
remaining charras garda was packed in the cloth bag and sealed. Mashirnama was
prepared at the spot in presence of mashirs. Case property was brought at
police station where FIR bearing Crime No. 23/2006 under section 6/9(c) of the
Control of Narcotic Substances Act, 1997 was registered against the accused on
behalf of state.
3. Charge
was framed against accused by the learned Special Judge-I (CNS) Karachi, under
the aforesaid sections at Ex-2. Accused Qadir and co-accused Mohammad Miskeen pleaded
not guilty and claimed to be tried.
4. At
the trial, prosecution examined three prosecution witnesses. Thereafter,
prosecution side was closed at Ex-08.
5. Statements
of the accused were recorded under Section 342 Cr.P.C. as Ex.9 & 10
respectively, in which accused have denied the prosecution allegations and
stated that they have been falsely implicated by the ANF police. Accused
neither examined themselves on Oath in disproof of prosecution allegations nor
produced any evidence in their defence.
6. On
the conclusion of the trial, learned Special Judge-I (CNS) Karachi, after
hearing the learned counsel for the parties, on the assessment of entire
evidence acquitted the accused by judgment dated 18.09.2010, mainly for the
following reasons:-
“On careful examination of
evidence it reflects that the prosecution has produced doubtful evidence
regarding the identification of accused Qadir, according to complainant/musheer
P.C Suraj the accused Qadir was identified by the HC Mohammad Aslam, when he
was jumping over the wall. The HC Mohammad Aslam has not stated such facts in
his examination, even he has not explained that how he was acquainted to the
accused Qadir prior to this occurrence. Serious improvement /contradiction and
exaggeration have been noticed in the testimony of pws, PC Nasir has been
explained in cross examination that accused Qadir jumped over the wall through
wood stairs case, where as no such fact has been mentioned in his statement u/s
161 Cr.P.C, neither any of the PWs has said so, even memo of recovery does
speak so. According to P.W P.C Nasir that they along with spy enter in to the
house and seen the accused Qadir while jumping over the wall, where as the HC
Mohammad Aslam has not testified that on seeing police mobile accused jumped
the wall, accordingly the house in question had compound wall, their was no
contention that their mobile went inside the house. None of the pw has
disclosed the feature of the escapee accused in the memo of recovery, FIR and statement u/s 161 Cr.P.C nor they prepared separated Hula
form of the escapee accused. The prosecution has no other corroborated evidence
against the accused Qadir, in such circumstances the identification of accused
Qadir is doubtful and cannot be relied upon. Reliance is place on 1985 SCMR
1834, 1993 SCMR 585 in this case all the PWs are official and no private
witness has been cited as witness, though the place of occurrence is populated
area and time of occurrence was bright day time. There was no doubt that
official witnesses are good and competent witnesses as like other citizen, but
in case of this nature where the fate of an accused depends upon the sole
testimony of officials. The court must scrutinize their evidence with utmost
care and attention. In this case the house was raided in pursuant of secrete
information. It was day time occurrence, but so search warrant was obtained nor
any explanation furnished for non obtaining of search
warrant, according to the PWs at the time of occurrence they were on patrolling
duty, but no Roznamcha entry of their departure has ever been produced to prove
that they were actually on patrolling at the relevant time of occurrence.
According to the I.O the recovery was effected on
19/05/2006, but the samples were sent on 26/05/2006 after delay of 72 hours, he
has not given any explanation for this delay beside this several contradictions
and discrepancies have been found in the evidence of PWs on important aspect of
case. In view of the above circumstances, I am of the opinion that prosecution
has failed to brought on convincingly tangible evidence regarding the
involvement of accused to connect with the commission of offence, point is
answered accordingly.
POINT NO.2:
What has been discussed
above I am of the opinion that the prosecution has failed to prove the
involvement beyond any reasonable doubt of the both accused Miskeen and Qadir
to connect with the commission of offence, I therefore acquit the both accused
Miskeen s/o Agha Khan and Qadir s/o Miskeen, both accused are present on bail,
their bail bond stand cancelled and surety discharged and not required any more
in this case.”
7. Mr. Habib Ahmed, learned Special Prosecutor ANF, argued that
prosecution has proved its case against the accused. Sufficient evidence was
brought on record by the prosecution to connect the accused in the commission
of the offence. Lastly, it is contended that prosecution proved its case but
trial Court without assigning sound reasons acquitted accused. It is prayed
that acquittal may be converted to conviction.
8. We have gone through the evidence with the assistance of Mr.
Habib Ahmed, Special Prosecutor ANF. From the perusal of the evidence, it
appears that Respondent was identified by one Head Constable at the time of
raid at the house. Said Head Constable could not satisfy the Trial Court as to
how he identified the Respondent/accused. Mere word of Head Constable that he
identified accused could not be relied upon. Trial Court for the valid and
sound evidence has disbelieved his evidence. Apart from that there was nothing
on record that ANF officials had not made efforts to catch hold the accused at
the time when he jumped over the wall and ran away. In the evidence produced
before the Trial Court, it has also not come on record that house in question
was in exclusive possession of Respondent. Trial Court rightly disbelieved the
evidence of the prosecution witnesses and recorded acquittal in favour of the
accused. Judgment of the Trial Court is neither perverse nor arbitrary. So far
the appeal against acquittal is concerned after acquittal Respondent/accused has
acquired double presumption of innocence, this Court would interfere only if
the judgment was arbitrarily, capricious or against the record. But in this
case there were number of infirmities and impugned judgment of acquittal in our
considered view did not suffer from any misreading and non-reading of the
evidence. As regard to the consideration warranting the interference in the
appeal against acquittal and an appeal against conviction principle has been
laid down by the Hon’ble Supreme Court in various judgments. In the case of State/ Government Sindh through Advocate
General Sindh, Karachi versus Sobharo (1993 SCMR 585), Honourable
Supreme Court has laid down the principle that in the case of appeal against
acquittal while evaluating the evidence distinction is to be made in appeal
against conviction and appeal against acquittal. Interference in the latter
case is to be made when there is only gross misreading of evidence, resulting
in miscarriage of justice. Relevant portion is reproduced as under:-
“14. We are fully satisfied
with appraisal of evidence done by the trial Court and we are of the view that
while evaluating the evidence, difference is to be maintained in appeal from
conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of
evidence resulting in miscarriage of justice. Reference can be made to the case
of Yar Muhammad and others v. The State (1992 SCMR 96).
In consequence this appeal has no merits and is dismissed.”
9. For
what has been discussed above, we are of the considered view that impugned
judgment is based upon valid and sound reasons and is entirely in consonance
with the law laid down by the Honourable Supreme Court of Pakistan. Neither,
there is misreading, nor non-reading of material evidence or misconstruction of
facts and law. Resultantly, Criminal Acquittal Appeal No. 146 of 2011 is without merits and the same
is dismissed.
JUDGE
JUDGE