THE HIGH COURT OF SINDH, KARACHI

Criminal Acquittal Appeal No. 230 of 2012

 

Present

                                                                                Mr. Justice Naimatullah Phulpoto

                                                                                Mr. Justice Abdul Maalik Gaddi     

 

Date of Hearing:                                            25.10.2017

 

Date of announcement of judgment:                        27.10.2017     

 

Appellant:                                                      The State/ANF through Mr. Shafiq Ahmed Special Prosecutor ANF.

 

 

Respondent No.1:                                          Akbar Ali Shah through Mr. Umar Farooq Khan.

 

Respondents No.2 to 4:                                 Nemo.

 

 

 

J U D G M E N T

 

NAIMATULLAH PHULPOTO, J- Respondents/accused Akbar Ali Shah, Rashid Aslam, Mujahid Pervez @ Mohammad Aslam, Fahim Babar were tried by learned Special Judge, Special Court-II (Control of Narcotics Substances) Karachi in Special Case No. 07/2004. After full-dressed trial, by judgment dated 07.10.2011, appellants were extended benefit of doubt and acquitted. Cases of absconding accused Majid and Rana Shahzad were kept on dormant file. The State/ANF through its’ Assistant Deputy Director, ANF challenged the acquittal recorded in favour of Respondents/accused before this Court.

 

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

 

“A letter No.10(56)ANF/INT/97 dated 17.09.1997 along with a copy of letter AEA, US Department of Justice Islamabad dated 10.09.1997 and USA, DAE, Islamabad Intelligence Bulletin was received by the complainant from ANF Rawalpindi alleging therein that 6032 Kgs Hashish was recovered by Belgium Customs from container arrived from Karachi Pakistan. On receipt of above letters the complainant, the then SI Liaquat Ali Zaidi of ANF-II Mohammad Ali Society, Karachi initiated inquiry which revealed that on 13.08.1997 Belgium Customs seized approximately 6032 Kgs Hashish from container No. JCU-8613070 which arrived from Pakistan on MV PUSANE SENATOR vide Bill of Lading No. BJSCKHIE-11044504 issued on 10.07.1997 by Hanjin Shipping Company Ltd. Karachi. The said consignment was booked by Qazi International, 10 Abbot Road, Lahore to consignee Fit Fun, SA Pasc Des Sport Enlotslrs Nr. 6, Capellen, Luxemburg. Enquiry conducted revealed that container mentioned above utilized for the subject consignment was transported from Faisalabad to Karachi on 07.07.1997 through NLC Truck No. 860914-859507. It further revealed from the scrutiny of the documents received from Deputy Collector Customs Dry Port Faisalabad, NLC Headquarters Karachi and Shipping Company Hanjin Pvt. Ltd Karachi, but exporter had prepared fake and fictitious shipping Bill No. 120 dated 04.07.1997 containing forge seal and signature of Customs Officer. Actually Shipping Bill NO. 120 dated 05.07.1997 was filed by M/s. Nishat Mill Ltd, Faisalabad and not by the Qazi International for export of Hashish. On inquiry from NLC Head quarters Karachi it revealed that the Driver Launce Naik Salamat Ali brought the container from Faisalabad to Karachi on the Truck No.860914-859507. From the above mentioned fact a case is made out against the Driver of NLC L/N Salamat Ali, exporter Qazi International, 10 Abbot Road, Lahore and other under section 6, 7, 8, 9, 12, 14 and 15 CNS Act, 1997 read with section 420, 460, 417, 34 PPC and FIR No. 07/1997 has been lodged on 25.03.1998 by the complainant the then SI Liaquat Ali Zaidi.”          

 

3.         Trial Court framed charge against accused/Respondents u/s 6/9 (c), 14 & 15 of the CNS Act at Ex.13. 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 Complainant/I.O SI Liaquat Ali Zaidi at Ex.18

2.      P.W-2 SIP Sajjad Ail at Ex.19

3.      P.W-3 Mohammad Iqbal Bajwa Addl. Collector of Customs at Ex.20

 

Thereafter, prosecution side was closed vide statement at Ex.22.

 

5.         Statements of the accused were recorded under Section 342 Cr.P.C. as Ex.23 to 26 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 07.10.2011, mainly for the following reasons:- 

 

“17. Admittedly in this case no charras/Hashish had been recovered from any of the accused person from neither their possession nor the contraband narcotic property produce in the Court and or any stage of trial. No sample had been sent to chemical analysis by the prosecution/ANF department. I have taken guidance from the case law reported as 2009 PCRLJ 1334, placitum-d, which reads as follows:

“(c) Control of Narcotic Substances Act (XXV of 1997)-S.9(c)- Non-production of case property in Court- Effect _ Unless the recovered narcotics are produced in the Court, it cannot be found that accused was carrying them on his person and the same were recovered from him.”

 

18. It is the prosecution case that the said consignment from which huge quantity of contraband Charras/Hashish weighing 6032 Kgs were recovered by Belgium Customs cleared by customs authorities of Dry Port Faisalabad and one driver of NLC brought the said container from Faisalabad to Karachi through a truck. On 21.10.2000 prosecution has filed supplementary challan before the Court of law in which accused Salamat Ali shown in Army custody as he was army personnel but further progress about the case of accused Salamat Ali produced before Court whether he was convicted or absconding. Admittedly no 164 Cr.P.C statement of accused Salamat Ali was recorded before competent authority.

19.       Further the instant FIR has been lodged on the basis of letter of Joint Director ANF dated 17.09.1997 along with a copy of DAE, US Department of Justice Islamabad dated 10.09.1997 USA, DAE, Islamabad Intelligence Bulletin. As per the prosecution case 6032 Kgs of Charras/Hashish was seized by Belgium Customs authority at Antwerp Port. Admittedly no any letter received from Government of Belgium about the said consignment which was recovered at Belgium.  

20.       The complainant and I/O of the case PW3 the then SIP Liaquat Ali Zaidi has produced photocopies of the several documents and the defence counsel had raised objection for its production in evidence. It is settled principle of law that photocopy of the documents is inadmissible in evidence. Such documents of cannot be taken into consideration. Merely by tendering a document in evidence without its proof the same has not evidentially value in eyes of law unless its contents or proved according to law and copies of documents without providing the case for secondary evidence in inadmissible in evidence. Later on no steps were taken by the prosecution to prove those documents by leading primary or secondary evidence in terms of Article 75 and 76 of the Qanoon-e-Shahadat Order, 1984. Further the authors of those alleged documents were not examined by the prosecution, therefore the production of those documents have no evidentiary value in the eye of law and not admissible in law as per case report in PLD 1973 SC Page-160.

21.       Learned counsel for the accused has contended that it is well settled principle of law that even a simple circumstances which creates doubt as to the guilt of the accused to the offence he is charged with entitles him to the acquittal not a matter of concession but as matter of right and similarly a simple reason can be source of discrediting the entire evidence of a witness. The case law reported as 1995 SCMR 1345, 1997 SCMR 25 and 2008 SCMR 1221. The relevant head notes of the same are reproduced as under:

1995 SCMR 1345. For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a single 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 an concession but as matter of right.

1997 SCMR 25. Benefit of doubt. Where evidence creates doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused without any reservation.

2008 SCMR 1221. For the purpose of benefit of doubt to an accused, more than one infirmity is not required. Single infirmity crating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful.   

 

22.       In view of above noted discussion I am clear in my mind that prosecution has not been above to prove case against the accused persons beyond reasonable doubt. My finding on Point No.1 above therefore is “In Negative”.

 

Point No.2

23.       In view of my finding on the foregoing Point No.1 as the prosecution has not been able to establish its case under Section 6/9-C CNS Act, 1997. Consequently accused (i) Akbar Ali Shah son of Ghulam Ali Shah, (ii) Rashid Aslam son of Mohammad Aslam, (iii) Mujahid Pervez @ Mohammad Aslam son of Arshad Ali and (iv) Fahim Baber son of Inayatul Karim are acquitted under Section 265-H(1) Cr.P.C. The accused are present on bail their bail bonds are cancelled and sureties are discharged.

24.       While case of absconding accused (i) Majid son of Abdul Rasheed and (ii) Rana Shahzad be kept on Dormant File till their arrest. Issue Life NBWs against them through I/O of the case.”  

 

7.         Mr. Shafiq Ahmed learned Special Prosecutor ANF assisted the Court and pointed out that narcotic substance was recovered at Belgium; chemical report was also not produced before the Trial Court.

 

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 narcotic substance was recovered at Belgium and admittedly no chemical report was produced before 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. 230 of 2012 is without merits and the same is dismissed.                                                             

 

 

JUDGE

 

                                               

JUDGE