Criminal Acquittal Appeal No. 528 of
2011
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Khadim Hussain Tunio
Date of Hearing: 20.09.2017
Date of
announcement of judgment: 28.09.2017
Appellant: The
State/ANF through Mr. Habib Ahmed Special Prosecutor.
Respondent: Zulqarnain
Sikandar not appeared.
NAIMATULLAH PHULPOTO, J: Special Prosecutor ANF has filed this Criminal
Acquittal Appeal against acquittal recorded by learned learned Special Judge-I
(CNS) Karachi, in Special Case No.155/2008 for offences under Section 9(c) of
the Control of Narcotic Substances Act, 1997 registered at P.S. ANF-Clifton, Karachi,
by order dated 04.06.2011, Respondent/accused was acquitted under section 265-K
Cr.P.C.
2. Brief
facts leading to the filing of the appeal against acquittal are that on
13.10.2008, ANF authorities got spy information about presence of narcotic
substance in the house of one Sami Ahmed Ansari and the informer namely Zulqarnain
Sikandar along with others met ANF party in front of the gate of Karachi
University. They were in the car; they led ANF party to the house of Sami Ahmed
where ANF let the informer party outside unattended, entered into the pointed
house and while all the members of the ANF had been searching out the house
from inside in presence of inmates thereof, including the said Sami Ahmed, PC
Pervaiz Shah deployed in the garden of the house informed the other officials
during their process of such search that informer Zulqarnain had dropped a bag
in the garden and managed to escape with his accomplice. On such information,
the officer namely Inspector Mohammad Afzal and other staff members came to the
garden where they secured a bag. The same was opened and it was containing
narcotic substance i.e. charas which was weighed and it became 4.5 K.Gs. The
Charras was sealed at the spot and obtaining sample thereof. Mashirnama of
recovery was prepared at the spot in presence of mashirs. Case property was
brought at PS ANF Clifton Karachi, where FIR bearing No.30 of 2008 for offence
u/s 6/9(c), 14 & 15 of the Control of Narcotic Substances Act, 1997 was
registered against the accused on behalf of state. During investigation,
accused Zulqarnain and Saqib Asghar were arrested and challan was submitted against
them before the CNS Court, Karachi.
3. Charge
was framed against accused by the learned Special Judge-I (CNS) Karachi, under
the aforesaid sections at Ex-5. Accused Zulqarnain and Saqib
Asghar. Accused pleaded not guilty and claimed to be tried.
4. Application
under Section 265-K Cr.P.C was moved and Respondent/accused was acquitted.
Hence this appeal against acquittal has been filed.
5. Learned
Special Prosecutor ANF contended that case of Respondent/accused was distinguishable
from the case of co-accused Saqib Asghar. Learned prosecutor ANF has also
submitted that no finding was recorded by the Trial Court that there was no
probability of the conviction of the accused in the offence. Lastly, it is
submitted that acquittal recorded by the Trial Court was unwarranted in law
without trial. Notices were repeatedly issued to the Respondent, but always
returned unserved.
6. We
have gone through the entire material with the assistance of Mr.Habib Ahmed
learned Special Prosecutor ANF. Record reflects that co-accused Saqib Asghar moved
an application under Section 265-K Cr.P.C before the Trial Court. Learned Special
Judge (CNS-I), Karachi, vide order dated 18.12.2009, dismissed the same, for
the following reasons:-
“After hearing argument advanced by learned counsel for the parties. I
have carefully perused the material available on record. According to the
prosecution case the accused/applicant and his companion co-accused Zul Qarnain
and one unknown gave information about the recovery and they led the ANF
official to the place of recovery. The accused/applicant Saqib Asghar is
nominated in the memo of recovery and so also in the FIR. He along with
principle accused Zulqarnain Sikandar was found present at the time of
occurrence. At this stage it is not possible to determine that the
accused/applicant had conscious knowledge or not. Therefore, no positive conclusion
can be drawn. The case of the accused/applicant Saqib Asghar is entirely
different from the case of acquitted accused Kamran Farhat. There is no cavil
in this preposition The provision of Section 265-K
Cr.P.C can be invoked at any stage, but it can be proved since when there is no
probability the accused can be convicted in any offence. The case law relied
upon by the learned defence counsel having no applicability with the case in
hand, as the facts of the reported case are altogether different from the case
of the present accused.
In view of the above circumstance I am of the humble opinion that the
accused/applicant has no case for acquittal in terms of Section 265-K Cr.P.C at
this stage. The Application in hand is hereby dismissed.”
7. Thereafter,
co-accused Saqib Asghar moved a Criminal Miscellaneous Application No. 81 of
2010 before this Court for quashment of the FIR No.30/2008. This Court, after
hearing the learned counsel for the parties, allowed the Application and
quashed FIR to the extent of co-accused Saqib Asghar and acquitted him for the
following reasons:-
“A perusal of the record shows that there is no incriminating evidence,
against the applicant connecting him with the alleged crime in question in any
manner whatsoever. His presence with the accused Zulqarnain Sikandar, if any,
alone, by itself, does not connect him with the alleged offence; his mensrea is
also not open to be established as the investigation is over and no evidence is
collected to show that the applicant had knowledge of the presence of the
narcotic substance with the accused Zulqarnain Sikandar and that he had been a
party to what role is said to have been played by the accused Zulqarnain
Sikandar in the instant case. The I.O of the case attended the court and in
response to a query of the court, he although admitted to have had no evidence
to establish the guilt of the applicant, towards the commission of the crime,
which apparently belongs to the accused Zulqarnain Sikandar in terms of mensrea
and actus reus both, but instead, he insisted continuation of trial of the
applicant, together with the accused Zulqarnain Sikandar, on the basis of the
story, he narrated in the Court that one Rustom Jatoi of Sanghar had provided
the said charas to the applicant Saqib Asghar Shaikh who came to Karachi from
Hyderabad together with the same and met his cousin accused Zulqarnain
Sikandar, who joined him as a party to the crime of planting the said narcotic
substance against the said Sami Ahmed Ansari at the instance of his business
rival i.e. accused Kamran Farhat, against joint booty of Rs.4 lakhs. We have
examined the record and found that the same does not support the said story.
Similarly, the learned Prosecutor General, ANF, prayed for dismissal of the
application, with the contention that the learned trial Court, be directed to
proceed with the case and dispose it of, on merits. He admitted the position of
the trial court proceedings in which, the co-accused Kamran Farhat, already
stood acquitted under section 249-A Cr.P.C for want of incriminating evidence
and such order has not been challenged in appeal by the ANF. He does not
dispute the position that the main beneficiary of the crime or the principal
culprit behind the whole criminal act played and staged by the characters,
namely Zulqarnain and Saqib Asghar Shaikh etc. has got rid of the said trial
very conveniently at his earliest with no active possible opposition of the
ANF.
We are however of the firm view that the case of the applicant Saqib
Asghar Shaikh is also likely to meet the same fate and ultimately, the
proceedings going on, would not be able to convict him in the crime in question
for want of positive incriminating evidence, and such proceedings if continued,
would bear and carry a status of futile exercise and abuse of process of law.
The learned trial court does not appear to have properly appreciated the
material on record of the case and it is not understandable how the learned
trial court dealt with the cases of said Kamran Farhat and that of the
applicant with two different yardsticks while the ground on which the acquittal
of the accused Kamran Farhat took place, also existed in the case of the
present applicant very much. In other words, the case of the applicant must
have also been disposed of under section 249-A Cr.P.C. particularly when he
invoked such jurisdiction of the learned trial court, on the ground that the
prosecution has no incriminating material against him and there is no
probability of his conviction in case if trial proceeds.
Consequently, we therefore, do hereby allow the application in hand and
order that the proceedings culminating from the FIR No.155/2008 stand quashed
as continuance of such proceedings would be abuse of process of the court and
even if the entire evidence is brought on record, there is no likelihood of
conviction of the applicant. The applicant is on bail, his bail bond stands
cancelled and surety discharged. We simultaneously observe that the
observations of this court made in this order will not prejudice the trial of
the other accused persons whose fate therein will be determined on their own
merits.”
8. In
the above stated circumstances, we have carefully gone through the impugned
order, relevant portion is reproduced as under:-
“Heard the learned counsel for the accused Zulqarnain and DDPP and
perused the record carefully. The accused is stood in the case to have kept the
bag containing charas inside the house of one Sami Ansari and managed to escape
in car parked outside, occupied by one Saqib & Rustam, they as per the
story, had led the ANF people to the said house on the plea that there had been
charas/narcotics in said house which is the property of the said occupied
thereof. They thus acted as ANF spy informer and associates but did otherwise
as disclosed above. They are said to have worked for one Kamran Farhat who had
enmity with the said Sami Ansari to take his revenge he used the accused named
above who put the charas--- bag misinformed the ANF people and then did the said criminal
act to accomplish the assignment given to them by the co-accused Kamran Farhat,
the only witness against the accused in hand is PC of ANF office concerned. The
learned counsel states that the accused was neither arrested from the spot nor
he was found in possession of the secured charas. The co-accused Saqib has been
acquitted u/s 561-A Cr.P.C. by the Hon’ble High Court in Cr.Miscl. Appl.No. 81/10,
the co-accused Rustam is not arrested so far. There is no evidence against him,
yet he is charge sheeted. His presence alone if yes,
does not make him guilty to the offence he is charged with. The case is
doubtful for the simple reasons that the said Sami is not made accused or
witness in the case for no valid excuse while the secured stuff was secured
from his house precincts the case depends on circumstantial evidence which are
not of incriminating nature except that the accused in hand is said to have
came inside and escaped after having kept the bag at of narcotics in question
in that lawn of the said house and such facts are disclosed by one PC of the
ANF Party whose evidence alone, even if brought on record as it is not solid
proof for it lacks description of the accused Zulqarnain and prior acquaintance
detail etc whereas there appears no positive corroboration to such solitary eye
witness, besides the conduct of the ANF as is highlighted above which is
already noticed by the Hon’ble High Court in the matter referred to above is
cloudy. The accused is therefore entitled to the benefit of doubt already
existed to the co-accused. The SPP concedes, the
accused is acquitted u/s 265-K Cr.P.C for the charge of the case. He is on
bail. His bail bonds cancelled and surety discharged. The co-accused Rustam
also stands acquitted for want of evidence in the interest of justice for there
is no use to keep his matter pending on D/File in law.”
9. Mr. Habib Ahmed, learned Special
Prosecutor for ANF could not satisfy the Court that acquittal of
Respondent/accused was perverse, co-accused in the case has already been acquitted
by this Court as mentioned above. 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.”
10. For
what has been discussed above, we are of the considered view that impugned order
u/s 265-K Cr.P.C 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. 528
of 2011 is
without merits and the same is dismissed.
JUDGE
JUDGE
.