ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Crl. Acquittal Appeal No. 68 of 2012

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Date Order .with signature of Judge

1. For Order on office objection a/w reply of advocate at Flag ‘A’

2. For Order on M.A. No. 1480/2012

3. For Katcha Peshi

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16.01.2013

Mr. Hussain Bux K. Baloch, Special Prosecutor for ANF.

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Mr. Hussain Bux K. Baloch, learned counsel appearing for the Appellant, has contended that on spy information officials of ANF raided International Departure Lounge and arrested four passengers (three gents and one lady) and three officials of ASF and from their possession seized five suitcases and from secrete cavities of each suit case 10 Kg of Heroin powder was recovered, making total of 50 Kg of Heroin powder, and consequently, a case under Section 6/9(c) of CNS Act, 1997 was registered.

Per counsel despite the fact that the prosecution proved its case beyond shadow of doubt and even three male accused passengers admitted their guilt, despite the Court acquitted all the officials of ANF and the lady accused and the remaining three, who had confessed their guilt, though were convicted, but were sentenced only to six years. It is contended that the acquittal was based on highly technical ground and minor contradiction in evidence, which were quite natural, as the evidence was recorded after 18 to 30 months.

Perusal of the record reflects that the acquittal was based on hyper technical ground such as one witness has stated that one of the accused was delivering suitcase having heroin powder to the lady accused, whereas the other said it was delivered, further that one witness stated that police party left police station at 2015 hours, memo was prepared at 2100 hours and they reached back to police station at 2330 hours and that two hours were spent in completing the process. The Presiding Officer calculated time between 2100 hours and 2330 hours i.e. two and a half hours and after deducting forty-five minutes which according to him must have been consumed by the party for reaching the police station came to the conclusion that if forty-five minutes are deducted from two and a half hours the police party did not have two hours and lastly he was of the opinion that there was no public witness associated and the mashirs were subordinates to the seizing officer. It appears that by extending benefit hardly for any cogent reason the Presiding Officer acquitted four out of seven accused persons and three, who were convicted, were only for six years. The record reflect that the judgment was announced on 13.7.2011 by giving the benefit of Section 382(b), Cr.P.C. to the convicted accused persons in a calculated manner, as the jail rolls reflect that such sentences was completed on 15.7.2011 and the accused were released on the next day of judgment depriving the State even from meaningful right of appeal.

The Presiding Officer in his judgment as a reason for lesser punishment has observed that though the prosecution has failed to prove its case but since three accused persons had confessed their guilt, therefore, leniency is extended to them and a lesser punishment of six years is awarded. We are shocked to notice that upon recovery of 50 kilograms of heroin the Presiding Officer in gross violation of the principles laid down by the Apex Court that in the cases where delay occurs in recording evidence minor contradictions are liable to take place has stretched the so called benefit in gross violation of Section 25 of the Control of Narcotic Substances Act, 1997. The judgment is further violative of the principle laid down by the Apex Court in the case of Ghulam Qadir Vs. The State (PLD 2006 SC 61) that in narcotics cases Courts are supposed to decide the matters with dynamic approach instead of acquitting the drug paddlers on technicalities.

In the end we are bound to observe though with the heavy heart that substantial portion of the judgment does not make any sense as if the words have been placed to cover the space and additionally the Presiding Officer has tried his level best to collect reasons for acquittal whether such reason makes any sense or not. We have further observed on the bench that numbers of acquittal appeals against the judgment of this particular Presiding Officer are being filed where the acquittal does not appear to be for cogent reason or in case where the accused have been convicted, the sentence is too less or passed in such a manner that the accused are released depriving the State for exercising meaningful right of revisions or appeals. Let MIT-I to collect data pertaining to all the judgments of the Presiding Officer of Special Court-I (CNS), Karachi whether conviction or acquittal and to ensure that the same are placed together before one bench. Let copy of this order along with judgment impugned in the instant Criminal Acquittal Appeal be also placed before the Hon’ble Chief Justice for orders as deemed fit. Notices be issued to the respondents through concerned police station for 19^th February 2013.

JUDGE

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Crl. Revision No. Nil of 2012

(State/A.N.F. Vs. Muhammad Akhtar)

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Date Order .with signature of Judge

For Orders as to non prosecution

Objection Nos. 1&2 not complied since 04.06.2012

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16.01.2013

None present for Applicant ANF

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Objections to be complied within 7 days.

Through this Revision Application, A.N.F. seeks enhancement of sentence awarded by the Special Court No. 1 (C.N.S.) Karachi to the Respondent/accused on pleading guilty. Perusal of the impugned judgment reflects that on recovery of Two Kilograms of Heroin the Respondent/accused on pleading guilty was convicted and sentenced to imprisonment already undergone. However, the order does not spell out the period during which the Respondent/accused was behind the bars. However, perusal of record reflects that the FIR was lodged on 07.03.2011 and the judgment was announced on 15.02.2012 which shows that the imprisonment of the Respondent/accused was hardly for few months.

On the other hand, perusal of the charge framed by the Court on 03.06.2011 reflects that the Respondent/accused was charged for possessing Three Kilograms of Heroin powder and not Two Kilograms, as stated in the Judgment. Further, non-mentioning of period in the judgment which the Respondent/accused had remained behind the bar while sentencing him for the period already undergone speaks volumes. We further are of the view that looking at the gravity of the offence with which the Respondent/accused was charged vis-à-vis the quantum of sentence provided under the law and the one awarded i.e. only 11 months and 7 days the judgment needs to be justified. The Order itself is very sketchy and it appears that the learned Judge has deliberately while awarding sentence to one already undergone has not specified the period which the accused remained behind the bars. Further, such sentencing has deprived the ANF to meaningfully challenge the judgment as after the release of the convict from jail it would hardly be possible to bring him before the Court of Appeal without definite whereabouts. Let pre admission notice be issued to the Respondent through concerned Inspector of ANF for 06.02.2013 to show cause as to why the sentence should not be enhanced. The Registrar of this Court to place the copy of the impugned judgment alongwith this order before the Hon’ble Chief Justice to consider initiation of departmental proceedings against the Presiding Officer. We would further like to observe that since last six months in most of the cases either no one appears on behalf of ANF or their appearance is just to seek adjournment. This Revision was also fixed for non-prosecution despite no one effected appearance. Let a copy of this order be sent to the Director General ANF to ensure proper and effective representation of his department.

Judge

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No. D-1594 of 2011

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Date Order .with signature of Judge

For Katcha Peshi

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16.01.2013

Mst. Nasreen-wife of petitioner present in person

SIP Qurban Ali Abbasi, I.O. P.S. Brigade

SIP Raja Tanveer, SIO P.S. Frere

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Through instant petition the Petitioner has challenged the implication of his wife in Crime No.04/2011 under Section 302/34 PPC for the alleged murder of his son. It appears from the record that the Petitioner and his third wife i.e. Mst. Nasreen had handed over the custody of Petitioner’s son (from second wife) namely Zauq Nafees to the main accused of Crime No.04/2011 i.e. Mohammad Johar and his wife Mst. Aaisha for educating and bring him up and after his death Petitioner lodged the instant FIR against them. It appears that SIP Qurban Hussain Abbasi- Investigating Officer has implicated Mst. Naseem, the wife of the Petitioner i.e. step mother of Zauq Nafees under Section 328 PPC. Mst. Nasreen present says that she was arrested and kept in police station for whole night where she was severely tortured by SIP Qurban Hussain Abbasi and Inspector Raja Tanveer and thereafter was allowed to leave in the morning. According to her SIP Qurban continuously demanded heavy bribe from her. On the other hand, SIP Qurban Hussain Abbasi admits her arrest for interrogation but denies torture. Notwithstanding and to our surprise interim challan against her was submitted under Section 512 Cr.P.C. which resulted in issuance of NBW by the concerned Magistrate against Mst. Nasreen

Investigating Officer present to justify his conduct says that since negligence on the part of Mst. Nasreen vis-à-vis the deceased son of the petitioner had surfaced, therefore, she was challaned under Section 328 PPC, however, he was not able to show from the record any statement which establishes negligence on the part of Mst. Nasreen i.e. step mother or any role assigned to her by any one. The malafide of prosecution further appears from the record that no attempt whatsoever was made to arrest her if she was wanted in crime instead of submitting challan againstunder Section 512 Cr.P.C. to cover up the negligence both the Investigating Officers have placed reliance on the statement of Muhammad Azhar Khan, brother of the main accused Mohammad Johar to whom the Petitioner had entrusted custody of his son, who in his statement quoted the other main accused i.e. Mst. Aisha that the wife of petitioner i.e. Mst. Nasreen does not want the minor in her house and she wants that the minor should not be alive, even the statement of Muhammad Azhar Khan if accepted on its face value it is just a desire which to our knowledge cannot be bracketed in any offence.

Let notice be issued to the SSP Investigation South to scrutinize the investigation and to submit his report regarding implication of Mst. Nasreen in Crime No.04/2011 of Police Station Frere, Karachi. His report should be on record on 23.01.2013, failing he should be in attendance. Notice also be issued to the Prosecutor General as to why proceedings against Mst. Nasreen should not be quashed and departmental proceedings against both Investigating Officers should not be initiated. To come up on 23.01.2012 to be taken up at 9.00 a.m.. Till then Mst. Nasreen shall not be arrested in Crime No.04/2011.

Judge

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Special Crl. Anti Terrorism Jail Appeal No.45 of 2010

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Date Order .with signature of Judge

1. For Orders on M.A. No.3354/2012

2. For Regular Hearing

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16.01.2013

Mr. Abdul Hafeez Lakho Advocate for the Appellant

Mr. Khadim Hussain, DPG

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Mr. Manzoor Ahmed M. Junejo Advocate for the Appellant Waheed is called absent. Mr. Abdul Hafeez Lakho for the appellant Niaz and Muhammad Saleem, is present. Mr. Lakho says that perhaps notice to Mr. Manzoor Ahmed has not been issued by the office as he hails from Sukkur. Perusal of the file reflects that Mr. Lakho is correct as the office has not issued intimation notice to Mr. Manzoor Ahmed. Adjourned to 20.02.2013 at 11.00 a.m. Office to ensure issuance of intimation notice to Mr. Manzoor Ahmed and also to issue Production Order for the said date.

Judge

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Special Anti Terrorism Appeal No.37 of 2008

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Date Order .with signature of Judge

For Regular Hearing

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16.01.2013

Mr. Habib Ahmed Advocate for the Appellant

Mrs. Shiraz Iqbal Choudhary, Standing Counsel

Mr. Khadim Hussain, DPG

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Mr. Muhammad Rauf Advocate for the Appellant Muhammad Qasim, is called absent. Whereas Mr. Habib Ahmed appearing for the Appellant Farhan Khan, Raheel, is present. Since counsel for the appellant Muhammad Qasim is not present, therefore, this case could not be proceeded as it involves capital punishment. In the circumstances, we adjourn the hearing to 19.02.2013 at 11.00 a.m. Office is directed to issue Production Order for the said date.

Judge