IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Acquittal Appeal No.D- 21 of 2011

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

For hearing of main case.

24.07.2018

Mr. Ubedullah Malano SPP ANF.

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Shamsuddin Abbasi, J:. Through this acquittal appeal filed by State/ANF Narcotics Force through it’s Deputy Director(Law) Authorized Officer, Government of Pakistan Ministry of Narcotics Control Anti-Narcotics Force, appellant has assailed judgment dated 05.11.2010 passed by learned Special Judge Control of Narcotics Substance Act, Khairpur whereby after full dressed trial, acquitted the respondent/accused Abdul Razzak from a case bearing Special case No.19/2004 arising out of crime No.16/1999 under Section 9(c) CNSA, 1997 registered at Police Station Anti-Narcotics Force, Sukkur.

2. The facts in brief are that on 03.12.1999, the complainant Syed Sher Ali Sherazi registered a case with P.S ANF, Sukkur stating therein that on the day of incident vide daily diary entry No.6, he along with Pak-Army Staffs went out at 1800 hours for control and check of Narcotics. After patrolling different spot, when they reached Pir-Jo-Goth mour, they receiving spy information that three persons were standing with motorcycle, on seeing the vehicle of ANF staffs, one person throwing a plastic bag run away on motorcycle, while two persons were apprehended, who had taken some bundle in their hands. The arrested persons disclosed their names as Sikandar Ali Channa and Abdul Razzak and informed that the absconding accused person was Dhani Bakhsh and they told that they have purchased the charas from said absconding accused Dhani Bux. From the bundles of accused persons, 20 patties charas were recovered, while from the bundle of Dhani Bus 12 patties were recovered. They weighed of charas recovered. The weight of Charas recovered from Sikandar was found 5 KGs, while the Charas recovered from the bundle of Abdul Razzak was 5 KGs and Charas from the bundle thrown by Dhani Bux was found 7 KGs. The ANF Staff took 10 grams Charas as sample from each bundle for chemical examination and the remaining Charas was sealed at the spot in presence of the mashirs. Thereafter, Police of ANF Sukkur along with the recovered property, arrested accused came at Police Station where the complainant has lodged FIR against the above named accused persons, hence complainant lodged FIR to the above effect.

3. After usual investigation police submitted challan against accused Sikandar Ali and Abdul Razzak while showing the name of accused Dhani Bux in column No.2 as absconder.

4. After receiving challan the learned trial Court has framed charge against accused Sikandar Ali and Abdul Razzak at Ex:05 whereby they have pleaded not guilty and claimed for trial.

5. During proceedings of the case accused Sikandar Ali expired and proceedings against him were abated vide order dated 07.09.2010.

6. In order to prove it’s case prosecution has examined PW-1 complainant/SHO Police Station, ANF Sukkur Syed Sher Ali Sherazi at Ex:09, he produced memo of arrest and recovery at Ex:9-A, copy of FIR and entry at Ex:9/B and 9/C and attested copy of chemical report ay Ex:9-D. PW-2 HC/mashir Mukhtiar Ali at Ex.10. Thereafter, learned SPP has closed the side of prosecution at Ex.11.

7. The statement of accused Abdul Razzak was recorded under Section 342 Cr.P.C by the learned trial Court at Ex.12 where he denied the allegations of prosecution and claimed to be innocent. However, neither he has examined himself on oath nor lead any evidence in his defence and prayed for justice.

8. The learned trial Court after hearing the parties and after perusal of the record has acquitted the respondent/accused Abdul Razzak vide judgment dated 05.11.2010.

9. Learned Counsel for appellant has argued that ANF officials has arrested the accused and recovered huge quantity of Charas and sample was sent to the chemical examiner where from the positive report has come on record but learned trial Court did not appreciate the evidence according to law. He further contended that prosecution witnesses have established their case beyond shadow of reasonable doubt. He further contended that respondent/accused was caught hold red handed at the spot. He further contended that learned trial Court has not considered the evidence of prosecution witnesses and acquitted the accused on surmises and conjectures and without giving the weight of prosecution witnesses, He further contended that it is a day time incident and respondents/accused is drug trafficor and involved in this heinous offence and he is liable to be convicted under the relevant law.

10. After hearing the learned prosecutor for ANF/appellant, examination of prosecution evidence as well as judgment passed by the learned trial Court, we are of the opinion that learned trial Court has passed well-discussed and well- reasoned judgment. The respondent was acquitted by the trial Court vide impugned judgment dated 05.11.2010 mainly for the following reasons.

“Point No.1. Burden lies upon the prosecution to prove the charge against the accused beyond shadow of reasonable doubt. It is pertinent to mention here that during trial, accused Sikandar Ali has expired, hence legal formalities completed against him and thereafter the complainant SHO Syed Sher Ali Sherazi as PW-1 has been examined at Ex.09. He has deposed that on 03.12.1999 he was posted as SHO at Police Station ANF Sukkur and on the above date vide entry No.6 at about 1800 hours, he along with Army hawaldar Mohammad Aslam, Siphai Tahir Mehmood, Siphai Yaseen, Siphai Khuda Bux, PC Mukhtiar Ali, PC Gul Khan, PC Imtiaz Ali, PC Rasheed, driver Ameer Ali under the supervision of incharge ANF caption Qamar Raja Siddique lefet P.S ANF in Government Police Mobile No.GP-3601 for searching the Narcotics in the territory jurisdiction of District, Khairpur. He has deposed that during patrolling when they reached at National Highway near Pir-Goth Mour, they saw three persons on motorcycles, they were standing on the road. He deposed that when the persons saw Police mobile, out of which one person thrown while colour plastic thelhi on road and ran-away on his motorcycle towards Babarloi road. He has deposed that they apprehended two persons and also tried to apprehend the person who was ran-away towards Babarloi and due to darkness he was escaped good. He has deposed that he tried to arrange the private persons acted as mashirs but no any person was present there therefore, he appointed PC Mukhtiar Ali and PC Gul Khan as mashirs. He has deposed that he apprehended two persons they were in possession of old dirty cloths bag, on inquiry, the first person has disclosed his name as Sikandar S/o Ghulaman Channa, R/o Shah Ladhani and second person has disclosed his name Abdul Razzak S/o Sahib Shaikh R/o Garhi Mori. Both the persons during interrogation have disclosed the name of person, who was escaped as Dhani Bux S/o Soomar Mahar R/o Dodo Goth Lakhi Ghulam Shah district Shikarpur. He has deposed that the persons have also disclosed that they have transacted the Charas with the person who brought the same and now he fled away.

He has further deposed that the opened old dirty cloths bag which was recovered from accused Sikandar in which 25 slabs of Charas lying in pink colour plastic in which it is mentioned Teer Mark. He has also searched another bag, which was recovered from accused Razzak in which also 20 slabs of Charas of same nature was lying. He search while colour Kata from which 22 slabs, out of which 20 slabs were same nature and two slabs were lying in white colour plastic in which it is mentioned paranda Mark. He has deposed that he separately weighed the charas recovered from accused persons and the Charas recovered from Abdul Razzak is also for 250 slabs each and total 5 KGs. He deposed that he too 10 grams from each slabs as a sample for referring to chemical report and remaining property sealed by him on spot separately. He deposed that on personal search Rs.100/- ten notes of each denomination was recovered. He deposed that subsequently he arrested both the accused in presence of mashirs Mukhtiar Ali and Gul Khan, prepared such mashirnama, read over the same to mashirs and then obtained their signatures. He has deposed that on spot he has arrested the accused persons and then brought them along with recovered property at Police Station where he lodged the FIR, being complainant and also completed other legal formalities. He deposed that during investigation, he sent the samples to chemical for report and received the same in positive. He produced memo of arrest and recovery of accused at Ex.9-A, copy of FIR at Ex:9-B, copy of entry at Ex.9-C and attested photocopy of chemical report at Ex:9-D. He identified the case property recovered from the possession of accused Abdul Razzak present in Court to be same.

The prosecution has examined PW-2/ mashir HC Mukhtiar Ali at Ex:10, he in his examination-in-chief corroborated the same evidence which was recorded by the complainant. Thereafter, the prosecution has closed the side vide statement at Ex.11.

The statement of accused has been recorded at Ex.12, in which he denied the allegation leveled against him and has stated that he is innocent and has been falsely implicated by the Police. He prayed for justice.

The learned Counsel for the applicant/accused has cross examined to both PWs i.e PW Sher Ali Sherazi at Ex:09 and HC Mukhtiar Ali at Ex.10 and has pointed out contradiction recorded by both the witnesses. From perusal of the cross-examination of the witnesses, it appears that there is contradictory statement recorded by the witnesses in their cross examination. The complainant in his chief has deposed that 10 notes each of Rs.10/- denomination recovered from the possession of accused Abdul Razzak while PW Mukhtiar Ali at Ex.10 has deposed that 70/- each of Rs.10/- were at Ex.10 has deposed that 70/- each of Rs.10/- were recovered from accused Abdul Razzak. Even otherwise, the FIR was lodged by the complainant on 03.12.1999 and letter sent to the chemical on 14.12.1999 which is delay for about 8 days. The complainant SHO Sher Ali Sheraiz did not explain either in FIR or during his evidence that why he has sent sample of case property to chemical examiner for delay of more than eight days. It is mandatory law that the property recovered from the possession of accused must be sent to chemical examiner for report within 72 hours. In the present case, the complainant has not complied the provision of mandatory law, therefore, there is clearly violation on the part of prosecution and it creates serious doubt. The case law relied upon by the learned defence Counsel on this point is fully applicable with the facts of present case.

In view what has been discussed above, it is settled law and held by our superior Courts that, if a silent doubt come on record then benefit of doubt goes to favour the accused, here the report of chemical examiner and letter of complainant created serious doubt therefore, I extended benefit of doubt in favour of accused. Hence, point answered in negative.

Point No.2. In view of above discussion and finding on point No.1, I am of the affirmed view that the prosecution has miserably failed to prove the charge against the accused beyond reasonable doubt therefore, I acquit accused Abdul Razzak under Section 245(i) Cr.P.C by giving benefit of doubt. Accused Abdul Razzak is present on bail, his bail bond stand cancelled and surety discharged. Accused Sikandar Ali has died, the case against him already been abated while case against absconding accused Dhani Bakhsh be kept on dormant file till his arrest”.

11. In view of the above reasons, Counsel for the appellant/ complainant has failed to satisfy us that the judgment passed by the learned trial Court was in violation of the law, which absolutely does not appear to be reversed in a manner taken by the appellants herein. This Court has always taken a lenient view in interfering with the judgment /order of acquittal until and unless there are cogent and confidence inspiring reasons in the appeal of acquittal and the case at hand is hollow of such reasons. At this juncture, reliance is placed on the case of GHOUS BUX V/S. SALEMM & 03 OTHERS (2017 P.Cr.L.J 836), wherein it is held as under:-

“It is also settled position of law that the appreciation of evidence in the case of appeal against conviction and appeal against acquittal are entirely different. Additional P.G has rightly relied upon the case of Muhammad Usman and 2 others v. The State 1992 SCMR 489, the principles of considering the acquittal appeal have been laid down by honourable Supreme Court as follows:

It is true that the High Court was considering an acquittal appeal and, therefore, the principles which require consideration to decide such appeal were to be kept in mind. In this regard several authorities have been referred in the impugned judgment to explain the principles for deciding an acquittal appeal. In the impugned judgment reference has been made to Niaz v. The State PLD 1960 SC (Pak.) 387, which was reconsidered and explained in Nazir and others v. The State PLD 1962 SC 269. Reference was also made to Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Khan and 6 others v. The Crown 1971 SCMR 264. The learned counsel has referred to a recent judgment of this Court in Yar Mohammad and 3 others v. The State in Criminal Appeal No.9-K of 1989, decided on 2nd July, 1991, in which besides referring to the cases of Niaz and Nazir reference has been made to Shoe Swarup v. King-Emperor AIR 1934 Privy Council 227 (1), Ahmed v. The Crown PLD 1951 Federal Court 107, Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426, Ghulam Mohammad v. Mohammad Sharif and another PLD 1969 SC 398, Faizullah Khan v. The State 1972 SCMR 672, Khalid Sahgal v. The State PLD 1962 SC 495, Gul Nawaz v. The State 1968 SCMR 1182, Qazi Rehman Gul v. The State 1970 SCMR 755, Abdul Rasheed v. The State 1971 SCMR 521, Billu alias Inayatullah v. The State PLD 1979 SC 956. The principles of considering the acquittal appeal have been stated in Ghulam Sikandar's case which are as follows:-

"However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:-

(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting, the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the factthat the acquittal carries with it the two well accepted presumptions: One initial, that till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.

(2) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence;(c) received such evidence illegally.

(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed bythe Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and, for no other reason.

(4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."

13. In another case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo (1993 SCMR 585), it is held as follows.

"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 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."

12. Reliance is also placed on the case of THE STATE & OTHERS V/S. ABDUL KHALIQ & OTHERS (PLD 2011 S.C 554), wherein it has been held by the Honourable Supreme Court as under:-

16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against acquittal is not the same, as against cases involving a conviction. In this behalf, it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are:

Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul-Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249),Mulazim Hussain v. The State and another (2010 PCr.LJ 926),Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009SC 53), Farhat Azeem v. Asmat ullah and 6 others (2008 SCMR1285), Rehmat Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175), Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).

From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.

13. For the above stated reasons, acquittal judgment is neither speculative nor perverse. No interference is required by this Court. Consequently, the same is dismissed.

These are the reasons of our short order dated 24.07.2018.

J U D G E

J U D G E

Ihsan