IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.72 of 2013

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Appellant: The State through Ms. Abida Parveen Channer Special Prosecutor ANF

Respondent: Nemo

Date of hearing: 27.08.2018

Date of announcement: 29.08.2018

J U D G M E N T

NAIMATULLAH PHULPOTO, J.-- Respondent/accused Rafaqat Ali son of Akbar Ali was tried by learned Special Judge-I (CNS), Karachi, in Special Case No.802/2011. On conclusion of trial, vide judgment dated 14.11.2012, respondent/accused was acquitted of the charge in the above case. Case of co-accused Rafaqat Ali son of Amanat Ali was kept on dormant file. Hence the State has filed instant criminal acquittal appeal against respondent/accused.

2. Brief facts leading to the filing of the appeals are that ANF officials headed by Inspector Tahir Bhatti stopped Car No.RA-377, near Tool Plaza, Super Highway, Karachi on 20.08.2011 at 0630 hours and arrested driver Rafaqat Ali son of Akbar Ali and Rafaqat Ali son of Amanat Ali and secured cocaine out of their respective possession weighing 1300 grams and 1200 grams each total 2500 grams. Thereafter, accused and case property were brought to P.S. ANF Gulshan-e-Iqbal, Karachi and Case/FIR No.04 of 2011 was registered against the accused under sections 6/9(c) of the Control of Narcotics Substances Act, 1997. After usual investigation challan was submitted against the accused under the above referred sections.

3. Trial court framed charge against respondent/accused Rafaqat Ali son of Akbar Ali, to which the appellant did not plead guilty and claimed to be tried.

4. At trial, prosecution examined two witnesses, who produced the relevant record. Thereafter, prosecution side was closed.

5. Statement of accused was recorded under section 342, Cr.PC in which accused claimed false implication in this case and denied the prosecution allegations.

6. Learned trial Court, after hearing the learned counsel for the parties and assessment of evidence available on the record, vide judgment dated 14.11.2012, recorded acquittal of the accused/respondent, hence this acquittal appeal is filed by State/Special Prosecutor ANF.

7. Ms. Abida Parveen Channer, Special Prosecutor ANF, mainly contended that evidence of ANF officials was confidence inspiring. ANF officials had recovered 2500 grams cocaine from possession of respondents/accused persons Rafaqat Ali son of Akbar Ali and Rafaqat Ali son of Amanat Ali from a Toyota Corolla Car. It is further argued that evidence of ANF officials was corroborated by the positive report of chemical expert but trial court disbelieved the evidence of ANF officials without assigning sound reason. Special Prosecutor ANF further argued that provisions of Section 103, Cr.PC are not attracted in narcotics cases and evidence of ANF officials was as good as private persons. Lastly, argued that prosecution witnesses had no enmity with the respondents/accused to foist narcotic substance upon them and prayed for converting the acquittal to conviction.

8. It may be observed that several times notices were issued to the respondents through ANF officials for service, even NBWs were issued but always returned unexecuted. Today NBW is returned unexecuted with the endorsement that respondents/accused are residing at District Gujrat, Punjab, SI Waheed Malik expressed his inability to execute NBW against respondents/accused.

9. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 17.03.2016 passed by the trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. It appears that trial court vide judgment dated 14.11.2012 acquitted the accused/respondent mainly for the following reasons:

“The evidence of the prosecution that consists of two witnesses of the same raiding party is not confidence inspiring for the reasons: that despite availability private persons, none was taken as attesting witness to the proceedings of the memo aforesaid; the fact that private persons were asked to become witness and they refused, does not match the legal position that allows initiation of legal action against such refusal, and since no notice is served upon such persons by the seizing officer and no particulars of such persons are given anywhere in the record, the same carries no weight; the packet cocaine is said to have been secured from the fold of shalwar of the accused, such fact carries improbability for the obvious reasons that there was no reason for the accused to keep hidden such packet in such manner since there was sufficient place in the car for keeping the same concealed; the seizing officer admitted in his statement that there was an army personnel with the raiding party at the relevant time while such fact is nowhere mentioned in the record of the prosecution including the calendar of the witnesses thereof; on the other hand, the accused stated on oath that he and other accused were in the car with two others who let free by the officer concerned for his own reasons; the crime stuff was not secured from his possession and that they were apprehended/arrested and brought to the police station one day prior to the date shown as that of their such arrest and recovery etc; the SPP did not specifically challenge in the cross-examination he conducted against such statement of accused, such part thereof, but made a general suggestion that accused made a false statement, which the accused denied; the expert report though positive, against the crime stuff aforesaid, does not serve the purpose of the prosecution, for the same, in its solitary state, can hardly become a basis for conviction against the accused at hand; in these circumstances, it is hard to hold that the accused is proved guilty of the charge aforesaid beyond shadow of any reasonable doubt; the settled law that a single circumstance that leads the court to doubt the guilt of the accused makes the case as of acquittal and that a chain of culprits may be let free in order to prevent punishment to an innocent person, do/does apply very much in the instant case; the under discussion point therefore, stands answered as above accordingly.”

11. In our considered view, the trial court has assigned sound reasons for recording the acquittal in favour of the respondent/accused. It is a matter of record that private persons were present but they were not associated as mashirs of arrest and recovery. Trial court has rightly held that there was sufficient space in the vehicle but it was not understandable as to why accused had kept cocaine in the fold of shalwar. It has also come on record that an Army personnel was in the company of the raiding party but neither he was cited witness nor examined before the trial court. Safe custody of the cocaine at ANF police station and its transit to the chemical examiner have also not been established as held by the Honourable Apex Court in the case of IKRAMULLAH AND OTHERS V/S. THE STATE (2015 SCMR 1002). Relevant portion is reproduced as under:-

“5. In the case in hand not only the report submitted by the Chemical Examiner was legally laconic but safe custody of the recovered substance as well as safe transmission of the separated samples to the office of the Chemical Examiner had also not been established by the prosecution. It is not disputed that the investigating officer appearing before the learned trial court had failed to even to mention the name of the police official who had taken the samples to the office of the Chemical Examiner and admittedly no such police official had been produced before the learned trial Court to depose about safe custody of the samples entrusted to him for being deposited in the office of the Chemical Examiner. In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit.”

12. In the case of State versus 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.”

13. We have come to the conclusion that trial court has examined the evidence deeply and has assigned sound reasons while recording the acquittal. Trial court has rightly mentioned in the judgment that there are number of discrepancies in the prosecution case; the prosecution of case was doubtful and its benefit has been extended in favour of accused. Prosecution had miserably failed to prove its case against accused/respondent.

14. For what has been discussed above, we are of the considered view that impugned acquittal/judgment dated 14.11.2012 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. Judgment of the trial court is neither perverse nor capricious. No interference is required by this Court. Resultantly, the appeal against acquittal is without merit and the same is dismissed.

J U D G E

Gulsher/PS