THE HIGH COURT OF SINDH, KARACHI

Criminal Acquittal Appeal No. 141 of 2016

 

Present

                                                                                Mr. Justice Naimatullah Phulpoto

                                                                                Mr. Justice Abdul Malik Gaddi       

 

Date of Hearing:                                            16.10.2017

 

Date of announcement of judgment:                        16.10.2017    

 

Appellant:                                                      The State through Mr. Ashfaq Rafiq Janjua Assistant Attorney General.

 

                                                                        Mr. Khalil Dogar Special Prosecutor for Collectorate Preventive Customs.

 

Respondents:                                                  Ghulam Mustafa and others.

 

 

J U D G M E N T

 

NAIMATULLAH PHULPOTO, J- Respondents/accused Ghulam Mustafa, Asif Naseer, Naeem Ahmed, Mohammad Akhtar Hussain, Karar Hyder and Imtiaz Ahmed were tried by learned Judge, Special Court-I (Control of Narcotics Substance) Karachi in Special Case No. 309/2014 (420/2011). After full-dressed trial, by judgment dated 15.02.2016, appellants were extended benefit of doubt and acquitted. Case of accused Mohammad Saeed was kept on dormant file. Deputy Attorney for Pakistan filed this Criminal Acquittal Appeal No. 141 of 2016 against the aforesaid acquittal recorded in favour of Respondents/accused. On 24.02.2017, learned standing counsel was put on notice to satisfy the Court about illegalities and infirmities in the impugned judgment, if any, recorded by the trial Court. Learned standing counsel requested for time. It appears that on 22.08.2017, learned Assistant Attorney General submitted that notice may be issued to Special Prosecutor Customs. Notice was issued to the Special Prosecutor Customs and     Mr. M. Khalil Dogar, Special Prosecutor appeared on behalf of Customs.

 

2.         Brief facts of the prosecution case as reflected from the impugned judgment are as under:

 

“The brief facts of the prosecution case as per FIR are that on 21-8-2011, at a1830 hours, Mr. Rashid Saeed, Senior Preventive Officer, Custom House, Karachi, on behalf of State lodged his report stating therein that a credible information had been passed on by the Additional Collector, Customs, Jinnah International Airport, Karachi, that attempt would be made to smuggle huge quantity of contraband Narcotics out of Pakistan under the garb of medicines in commercial quantity with the connivance of some Custom officials posted at the International departure Hall, Jinnah International Airport, Karachi. In this connection specific instructions were issued to keep strict watch over all the outgoing baggage and additional officers including I.P.S- Mohammad Iqbal (M.I) were also posted at the International Departure Hall for strict surveillance. Accordingly during the course of surveillance on the intervening night of 20th/ 21st August 2011, I.P.S- Mohammad Iqbal, noticed that a passenger with four Suitcases was heading towards A.S.F’s baggage scanning machine installed immediately after the fast track inside International departure Hall. In this regard I.P.S- Mohammad Iqbal instructed him to stop the passenger and his baggage. He immediately rushed to the A.S.F’s scanning machine where the baggage had been scanned and scanning images indicate the presence of medicines in huge commercial quantity inside said Suitcases. As such he immediately stopped the passenger after he had collected all four Suitcases from A.S.F’s scanning machine and brought him back to Customs examination counters as it had become imperative to examine the baggage so intercepted. Prior to baggage examination the passenger’s travelling documents were scrutinized which disclosed his identity to be Ghullam Mustafa S/O Mohammad Samad Ali, Pakistan National (Passport No. AY0872141) who was leaving for Chaka (Bangladesh) via Doha (Qatar) by Qatar Airways Flight No.QR-319 from Karachi. The passenger named above was asked to declare if he was carrying any contraband goods viz; narcotics, psychotropic substances or any controlled drugs etc; in his baggage or on his person to which he denied and stated that he was carrying some Herbal medicines. However, being dissatisfied with the passenger declaration, his baggage comprising four Suitcases was cursorily examined in presence of two witnesses namely; M. Imtiaz Ali and Ashraf Mehmood, (both S.P.Os Customs). Upon cursorily examination all the four Suitcases were found to contain Miscellaneous Allopathic medicine kept on the upper layer under which bulk of herbal medicines packets viz; Majun Dabeed-ul-Ward and Khamira Gaozaban were stacked. At this point three customs officials namely; I.P.S Asif Naseer and S.POs S. Karar Hyder and Naeem Ahmed (posted in the same shift) asked I.P.S Mohammad Iqbal to let the passenger and his baggage go out of the Custom Hall, however it was not accepted. In this regard I.P.S Asif Naseer also made a phone call to Mr. A. Haneef Khan, requesting for release of passenger and his baggage’s, but the Assistant Collector also did not allow his request. Subsequently the above mentioned four suitcases containing bulk of herbal medicine packets were examined in presence of above named mashirs, during which all the herbal medicines packets were taken out from the four suitcases and were found to be 735 in number. The said 735 herbal medicine packets so recovered when unpacked were found to contain one plastic Jar in each and all the said plastic Jars were found to contain off-white Heroin powder instead Ma’Jun Dabeed-ul-Ward and Khamira Gaozaban which were in fact prepared in wet-paste form. Heroin Powder so found kept in plastic Jars was instantly tested with “narcotics test kit” which gave a positive inference for Heroin. The examination and recovery process took considerably long time and upon finalization the Heroin powder recovered from 735 plastic Jars was found to be 73.5 Kilograms (net) upon weightment. Three reprehensive samples each weighing about 20 grams were also drawn and sealed under the signature of above mashirs. Heroin powder so recovered was accordingly seized along with containers thereof and passengers travelling documents under the cover of a mashirnama. During preliminary investigation conducted subsequently to recovery and a seizure of 73.5 Kilograms Heroin powder, the owner passenger Ghullam Mustafa disclosed that his safe passage through Customs, A.N.F channels was arranged and promised by Customs SPO Naeem Ahmed. Inquiries in this regard further revealed that SPO Naeem Ahmed has hatched a conspiracy with other two Custom officials namely; Asif Naseer (IPS) and S. Karar Hyder (SPO) to arrange clandestine passage and clearance of above named passenger and his baggage through Customs, A.N.F and A.S.F channel. These facts were immediately conveyed to Senior Customs Officer of the level of Additional Collector of Customs and Assistant Collector of Customs and upon receiving instruction from Customs high-up’s the above named Custom officials I.P.S Asif Naseer and S.P.O Naeem Ahmed were arrested along with owner passenger Ghullam Mustafa, while S.P.O S. Karar Hyder surreptitiously left the place of incident. The above named arrested accused persons were issued with notices of arrest whereas efforts are being made to apprehend the above name Customs SPOs S. Karar Hyder. Moreover, efforts were also being made to identify and other officials if any involved.”          

 

3.         Trial Court framed charge against accused/Respondents u/s 9 (c), 14 & 15 of the CNS Act on 22.11.2011 at Ex.5. Accused pleaded not guilty and claimed to be tried. Amended charge was framed against accused at Ex.13. Accused did not plead guilty and claimed their trial.

 

4.         At trial, prosecution examined the following witnesses:

 

1.      P.W-1 Rashid Saeed Complainant at Ex.20.

2.      P.W-2 Mohammad Imtiaz SPO Custom.

3.      P.W-3 Mohammad Iqbal Superintendent, Preventive Service.

4.      P.W-4 Bashir Ahmed S.P.O Custom.

5.      P.W-5 Syed Azhar Mehdi S.P.O Custom, Investigation Officer.

 

Thereafter, prosecution side was closed vide statement at Ex.37.

 

5.         Statements of the accused were recorded under Section 342 Cr.P.C. as Ex.37 to 42 respectively, in which accused have denied the prosecution allegations and stated that they have been falsely implicated. Accused neither examined themselves on Oath in disproof of prosecution allegations nor produced any evidence in their defence.

 

6.         The learned Trial Court, after hearing the learned counsel for the parties and assessment of the evidence, recorded acquittal in favour of Respondents/accused by judgment dated 15.02.2016, mainly for the following reasons:- 

 

“23.     Glairing contradictions existed in the deposition of P.Ws in respect of the manner in which recovery was effected, separating quantity of sample of Heroin powder which was sent to the Chemical Examiner and sealing of Suitcases, empty Jars, packing material of alleged packets of Majun-e-Dabeed ul Ward and Khamira Gaozaban.

24.       That the witnesses contradicted each other on several points. Incompetence, negligence, and failure of investigating agency to fulfill the requirement of law damage the prosecution case and raised reasonable doubt as to the recovery of narcotic from Jars of Majun-e-Dabeed-ul-Ward and Khamira Gaozaban of four suitcases of accused Ghullam Mustafa. Benefit of doubt if any will go in favour of the accused.

            In view of the above reasons I answered this point in negative.

            The up-shot of above discussion is that the prosecution has failed to establish its case against accused Ghullam Mustafa, Asif Naseer, Mohammad Akhtar Hussain, Syed Karar Hyder and Imtiaz Ahmed beyond any reasonable shadow of doubt, therefore while extending benefit of doubt to the accused Ghullam Mustafa, Asif Naseer, Mohammad Akhtar Hussain, Syed Karar Hyder and Imtiaz Ahmed, I acquit them U/S 265-H(1) Cr.P.C. The accused Asif Naseer, Naeem Ahmed, Mohammad Akhtar Hussain, Syed Karar Hyder and Imtiaz Ahmed are present, their bail bond stands cancelled and sureties discharge. The accused Ghullam Mustafa is present under custody and he is remanded back to jail with direction to release him forthwith if he is no more required by the Superintendent Jail in any other case.

            So far the accused Mohammad Saeed is concerned who is Proclaimed Offender therefore the case against him is kept on dormant file and let a general warrant of his arrest valid for a period of one year be issued through the S.H.O concerned for execution.”   

 

7.         Learned Assistant Attorney General as well as Special Prosecutor Custom argued that Trial Court has recorded acquittal in favour of the Respondents on the basis of minor contradictions. It is also argued that Trial Court did not appreciate the evidence according to the settled principles of law. Lastly, it is argued that judgment of the Trial Court is perverse and arbitrary.

 

8.         From scanning the evidence recorded by the Trial Court and impugned judgment, it appears that judgment of the Trial Court is based upon sound reasons. Trial Court found material contradictions in the evidence of the prosecution witnesses. Trial Court has also mentioned that evidence of prosecution witnesses did not inspire confidence and it was rightly rejected by the Trial Court. Judgment of the Trial Court is neither perverse nor arbitrary. So far the appeal against acquittal is concerned after acquittal Respondents/accused have 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. 141 of 2016 is without merits and the same is dismissed.                                                             

 

 

JUDGE

 

                                               

JUDGE