Criminal Acquittal Appeal No. 120 of
2011
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Khadim Hussain Tunio
Date of Hearing: 29.09.2017
Date of
announcement of judgment: 05.10.2017
Appellant: The
State/ANF through Mr. Shafiq Ahmed Special Prosecutor.
Respondent: Mohammad
Essa @ Shah Mohammad not appeared.
NAIMATULLAH PHULPOTO, J: Respondent/accused was tried by learned Special
Judge-II (CNS) Karachi, in Special Case No.70/2004 for offence under Section 9(c) of the Control
of Narcotic Substances Act, 1997 registered at P.S. ANF Clifton, Karachi, by
Judgment dated 03.06.2010, Respondent/accused was acquitted by extending him benefit
of doubt. State/ANF filed instant Criminal Acquittal Appeal No.120 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
11.07.2003, higher officers of ANF had received information that by air
narcotic will be smuggled out of country to UK. On said information,
complainant SI Jehangir Khan along with his subordinate staff left P.S at 0600
hours and reached at Jinnah International Airport, Karachi and started
monitoring at Domestic and International Departure, at 0830 am, one person who
had a black color bag in his hand was going towards ASF Control Room, the spy
pointed out towards said person that he was Mohammad Essa, who has gone to
Company Commander ASF Munir Rajput to give the narcotic to him, Mohammad Essa after
delivering the bag came empty handed from the Control Room and started going
towards the parking area and sat in Car No.AB-5763 and went towards Quaidabad
and took a turn from Quaidabad and came back towards Airport and at Wireless
Gate after crossing the Railway Phattak. He parked his car in the ground.
Inspector Khaliduddin informed the complainant SI Jehangir Khan that from
trolley bag which was in the hand of Mohammad Essa, which he handed over to
said ASF Company Commander, from said bag 3200 grams heroin has been secured,
as such SI Jehangir Khan arrested accused Essa in presence of ASI Shakeel Ahmed
and HC Mohammad Hasan Khoharo and from his personal search from his pocket of
shirt two mobile phones, one Nokia and one Siemens, one purse in which there
were visiting cards and cash amount of Rs.700/- and 5000 Euro were secured and
one watch was secured. On further search of the Car, from the Dash Boad of the
car four audio cassettes were secured, whereas under the driving seat from the
shopping bag five packets of Charas were secured. Each packet was weighed
separately, which weight one K.G each, total five K.G charas was secured. From
each packet 10/10 grams samples were secured, they were sealed in separate
brown color envelops, five in number, and the remaining charas was separately
sealed. Accused Essa disclosed that he had delivered heroin in the trolley bag
to ASF Company Commander Munir Rajput weighing 3200 grams and the said heroin
could have been given to any passenger and boarded on the aircraft and the same
had to be received in London by one Imran, companion of Mohammad Essa. The
secured charas, personal search and recovery and the car were taken into
custody and prepared memo of arrest and recovery. Mashirnama was prepared at
the spot in presence of mashirs. Case property was brought at police station
where FIR bearing Crime No. 22/2003 under section 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-II (CNS) Karachi, under
the aforesaid section at Ex-12. Accused Mohammad Essa and other co-accused pleaded
not guilty and claimed to be tried.
4. At
the trial, prosecution examined two prosecution witnesses. Thereafter, prosecution
side was closed.
5. Statements
of the accused were recorded under Section 342 Cr.P.C. as Ex.19 to 21
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-II (CNS) Karachi, after
hearing the learned counsel for the parties, on the assessment of entire
evidence acquitted the accused by judgment dated 03.06.2010, mainly for the
following reasons:-
“13. The allegation against the
accused Mohammad Essa as per prosecution case is that he was arrested on
11.07.2003 at 0953 hours at ground near Railway Phattak, Wireless Gate,
Shahrah-e-Faisal, Karachi from a car and secured five Kilograms of Charras from
the said car and registered case being FIR No.22 of 2003, the said FIR is
outcome of FIR No. 21 of 2003 in which the ANF officials (complainant Inspector
Khaliduddin) allegedly secured Heroin powder weighing 3200 Grams from accused
Munir Ahmed Rajput, which was allegedly been supplied by accused Mohammad Essa.
Accused Mohammad Essa during recording of his statement under section 342 Cr.PC
produced copy of Hulia Form Exh. 19/A, which was prepared by
the Complainant and Investigating Officer SI Jehangir Khan. Perusal of
Exh.19/A Hulia Form of accused Mohammad Essa shows that it was prepared in FIR
No. 21 of 2003 and date and time of occurrence shown as 11.07.2003 at 0945
hours, which is very much contradicted Memo of arrest and recovery Exh.18/A,
which was also prepared by the Complainant and Investigating Officer of the
case SI Jehangir Khan. There is also contradiction in preparation of Remand
Report, which was also prepared in FIR No. 21 of 2003 and produced by accused
Mohammad Essa during his statement under section 342 Cr.PC at Exh.19/C, in
which four accused were shown arrested namely Munir Rajput, Luqman Ayoub,
Mohammad Essa and Ali Afsar and in which it is stated by the complainant of FIR
No.21 of 2003 Inspector Khaliduddin that it is submitted in above case above
accused persons on 11.07.2003 at 0950 hours have been arrested from
international Departure Hall by recovering 3 kilo 200 grams Heroin powder.
Whereas Exh.18/A, Mashirnama of arrest and recovery shows that accused Mohammad
Essa was arrested from Railway Phattak, Wireless Gate, Shahrah Faisal at 0953
hours on 11.07.2003. This major contradiction create
serious doubt regarding arrest of accused Mohammad Essa as stated by the
prosecution in Exh.18/A Memo of arrest and recovery.
14. The prosecution has alleged that accused Mohammad Essa had
been apprehended from a car bearing Registration No. AB-5763, and Investigating
Officer of the case SI Jehangir Khan admitted in Cross-examination that no
driving license was secured on personal search of accused, nor the vehicle
Honda Civic was in the name of accused Essa, he has stated that he had
collected the record of Honda Civic from the Excise office and that no action
was taken against the person in whose name the Honda Civic No. AB-5763 and admitted
that record which he had been collected not produced in Court. Further the
prosecution case against the accused Essa is that he was found possessing five
packets of Charras weighing five Kilograms and produced the same in Court a
blue color shopper from five slabs of Charras are secured, three in white color
wrapper, one is yellow color wrapper and one in golden, black and green color
wrapper as Article-A, but in the whole prosecution it is not mentioned that the
Charras secured was in shape of slabs and the slabs were wrapped in different
color wrappers which also creates doubt in the prosecution case regarding the
recovery of five Kilograms Charras.
15. The Complainant and Investigating officer of the case SI
Jehangir Khan has admitted in cross-examination that an entry had been made in
the Roznamcha after reaching the police station. Regarding non-production of
station diary or any number, if maintained, admittedly not mentioned in FIR or
Mashirnama or 161 Cr.PC statements of PWs. It has been held in 2001 PCRLJ 1762
(Karachi) (Mohammad Achar Machi v/s The State) when whole case of prosecution
depends on Roznamcha entry showing time and date and presumption could be that
police party had not left the concerned Police Station for patrolling when the
Complainant along with other police officials set out for patrolling, but said
entry has not been produced by the prosecution before the trial Court. In a case reported in 2001 PCRLJ 1736 (Ashique Hussain Leghari v/s.
The State) when the Complainant and his officials left their office/Thana vide
Roznamcha Entry and on spy information proceeded towards house of the accused
had not been produced before the Trial Court. It was held that non-production
of such documents had cut the root of prosecution case.
16. The first FIR being number 21 of 2003 in which the prosecution
has allegedly secured 3200 grams from accused Munir Ahmed Rajput, and all the
three above named accused were arrested, was decided vide Judgment dated
04.11.2006 and all the three above named accused were acquitted and the
certified copy of the said judgment was produced by accused Mohammad Essa in
his statement recorded under section 342 Cr.PC at Exh.19/E, in which structure
has been passed against the Investigating officer and direction had been given
for departmental action and in the said judgment the enmity between accused
Essa and the Investigating Officer Jehangir Khan has been established and it is
specifically been held , ‘so far as accused Mohammad Essa is concerned, the
defense has pleaded enmity with Inspector Jehangir who in his Cross-examination
has stated that he does not know if he has a cousin by name Dr. Ainuddin in Quetta.
When it is case of the defense the Ainuddin had murdered cousin of Essa Khan
and as a result of which he was convicted and hanged in Much Jail Baluchistan,
but Inspector Jehangir has denied in his Cross-examination that due to that
enmity he has falsely implicated Essa Khan in this case. Merely by his
statement that he does not know if he has got a cousin by name of Ainuddin this
plea of defence automatically becomes acceptable otherwise he straight away
would have denied that he has no cousin by name of Ainuddin, therefore, his
enmity with Essa Khan stands proved.
17. The prosecution story starts with lodging of FIR No. 21 of
2003 and in said case one passenger Ali Afsar to whom allegedly the bag was to
be handed by Munir Ahmed Rajput, he had been released under section 169 Cr.PC
without any order of competent Court of law and Judicial Magistrate and the
basic link has been broken with regard to alleged smuggling Heroin and Charras
and it does not appeal to reason that accused Essa handed over Heroin allegedly
to Munir Ahmed and he kept with himself Charras and took the vehicle and had
gone to wireless gate.
18. In the presence case also the prosecution has failed to
discharge the burden of proof beyond shadow of reasonable doubt and the accused
Essa has been implicated on account of enmity. The witnesses specifically
deposed that no evidence is available against accused Munir Ahmed Rajput and
accused Mohammad Ali Sootwala. PW2 SI Jehangir Khan complainant and
Investigating officer admitted that in FIR No.22 of 2003 (present FIR) there is
no recovery from accused Munir Ahmed Rajput and he was not arrested with
accused Mohammad Essa from car and further admitted that there is no evidence
against accused Munir Ahmed Rajput except the statement of co-accused Mohammad
Essa and further that in FIR No. 21 of 2003 accused Munir Ahmed Rajput had been
acquitted he has further admitted that no recovery has been made from accused
Mohammad Ali Sootwala in this case, and during investigation accused Mohammad
Essa disclosed that accused Mohammad Ali Sootwala is his partner in narcotic
business.
19. In view of said reasons a doubt has been created in the
prosecution case and it has been held in 1995 SCMR Page-1345 that for granting
benefit of doubt to an accused it is not necessary that there should be many
circumstances to crate doubts. If a simple circumstance creates reasonable
doubt in a prudent mind about the guilt of accused, then he will be entitled to
such benefit not as a matter of grace and concession, but as a matter of right.
The accused Mohammad Essa @ Shah Mohammad @ Shah Khan s/o Haji Faqeer Mohammad,
accused Munir Ahmed Rajput s/o Tufail Hussain and accused Mohammad Ali Sootwala
s/o Abdul Aziz are acquitted under section 265-H(1) Cr.PC. All the above named
accused are on bail , their bonds are canceled and
sureties are discharged.
20. Case of accused Mohammad Younus s/o Mohammad Yousuf, accused
Chaudhry Karim s/o Chaudhry Kaleem be kept on Dormant file, issue life NBWs
against them and entry be made in Dormant File Register, since no father’s name
of accused Pervez, accused Usman, accused Sagheer Junjoa, accused Jabbar Kakar,
accused Sher Mohammad Kakar are mentioned as such the particulars of absconding
accused are vague, in view of above no proceedings are initiated for said
absconding accused mentioned in the charge sheet. ”
7. Mr. Shafiq Ahmed Special Prosecutor ANF has argued that
Trial Court has recorded acquittal on the basis of minor contradictions in the
prosecution evidence. He has further submitted that non-production of the
Roznamcha entries would not be fatal to the prosecution case. Lastly, he has
submitted that prosecution evidence was not appreciated by the Trial Court
according to settled principles of law.
8. In our considered view, Trial Court rightly acquitted
accused Mohammad Essa for the reasons that there were material contradictions
in the prosecution evidence particularly with regard to the memo of arrest and
recovery. It has also come on record that driving license of the Respondent/accused
was not secured from his possession. During evidence it was also not
established that in which shape charas was recovered. Police officials also
failed to produce Roznamcha entries before the Trial Court. Sound reasons have been assigned by the Trial
Court while recording acquittal in favour of the Respondent/accused. Mr. Shafiq
Ahmed learned Special Prosecutor ANF during pendency of the appeal had pointed
out that he has received news that Respondent/accused has expired, but his
death is not confirmed by the ANF officials despite directions of the Court.
Even otherwise, 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. 120 of 2011 is without merits and the same
is dismissed.
JUDGE
JUDGE