THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No. 253 of 2013

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Amjad Ali Sahito

Appellant : The State through Prosecutor General Sindh through Mr. Khadim Hussain Addl. P.G

Respondent(s) : M/s. Malik Khushal Khan and Fahad Akbar advocates

Date of Hearing : 06.11.2023

Date of decision : 06.11.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State through Prosecutor General Sindh has filed this appeal against respondents/accused. It appears that respondents/accused were tried by Drug Court Sindh at Karachi in Case No.03 of 2012 for offences under Sections 23(1)(i) read with section 27(4) of the Drugs Act 1976. After regular trial, vide judgment dated 25.03.2013, respondents/accused were acquitted.

2. Trial Court framed charge against the respondents/accused to which they pleaded not guilty and claimed to be tried.

3. At trial, prosecution examined three witnesses. Thereafter, prosecution side was closed.

4. Trial Court recorded statement of respondents/accused under Section 342 Cr.P.C. Respondents/accused claimed their false implication in the case. Respondents/accused neither examined themselves on oath under section 340(2) Cr.PC in disproof the prosecution allegations nor led any evidence in their defence.

5. Trial Court after hearing learned counsel for the parties and assessment of evidence vide judgment dated 25.03.2013 acquitted the respondents/accused, hence this acquittal appeal is filed.

6. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 25.03.2013 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7. Mr. Khadim Hussain Addl. P.G argued that Prosecutor General was competent to file appeal against the judgment of acquittal and acquittal appeal was filed within time as provided under Section 417(1) Cr.P.C. Addl. P.G further argued that prosecution evidence was reliable and trustworthy supported by positive report of the expert; that there were not material contradictions in prosecution evidence. It is submitted that trial Court failed to correctly evaluate the credibility of the witnesses and has not properly weighed the evidence produced before the trial Court. Lastly, it is submitted that trial Court failed to appreciate the evidence according to settled principles of law and prayed for allowing this acquittal appeal.

8. Learned advocates for the respondents/accused argued that acquittal appeal is time barred. Section 31(7A) of Drug Act, 1976 provides 30 days limitation to file an appeal against an order of acquittal passed by Drug Court. In the present case, it is submitted that an order of the acquittal was passed on 25.03.2013, on 07.09.2013 after delay of more than 05 months. It is argued that question of limitation against Government cannot be treated differently from an ordinary litigant; that delay of each and every day has not been explained; that no application under Section 31(8) read with Section 5 of Limitation Act has been filed by the State. Learned advocate for the respondents/accused submitted that Section 31(7A) of the Drug Act is a special law and provides a special procedure which would prevail over the provisions of Code of Criminal Procedure 1898. In support of their contentions, reliance is placed upon the case of Hussain Bakhsh vs. Allah Bakhsh (1981 SCMR 410).

9. We have carefully heard learned counsel for the parties and re-examined entire evidence available on record. It appears that trial Court acquitted the respondents vide judgment dated 25.03.2013 for the following reasons:

“In view of the above discussion, facts and circumstances of the case, we are of the firm opinion that all the witnesses have a contradiction, they are admitted the violation of 103 Cr.P.C as well as both the witnesses are Government employee and related to the Drug Inspector/Complainant Farzana Memon and both the witnesses also admitted we are witnesses in other cases. 2^nd point regarding documents which was produced by the accused goes in favor of accused because Drug Inspector/Complainant did not verified and called the witness in the witness box (Author of documents). 3^rd point is also goes in favor of the accused. Qamaruddin s/o Ali Nawaz. The complainant as well as both the witnesses are recorded their examination in chief as well as their cross. In examination in chief they failed the role of accused simply the complainant/Drug Inspector Farzana Memon is mentioned on the title page as accused of the Qualified person of accused No.1 M/s Yasir Medical Store, Main road, Odero Lal Village, Tehsil and Taluka Matiari.”

10. Now, the question that falls for our consideration is whether acquittal appeal was time barred. The record reflects that an order of acquittal was passed by learned Drug Court on 25.03.2013 and appeal against acquittal was filed on 07.09.2013 after delay of more than 05 months. Under Section 31(7-A) of the Drugs Act 1976, a Federal Inspector or a Provincial Inspector may, on being directed by the Federal Government or, as the case may be, by the Provincial Government, prefer appeal against an order of acquittal or inadequacy of sentence passed by the Drug Court within thirty days of such order. It may be observed here that provisions of special enactment provides special procedure, it would prevail over the provisions of Code of Criminal Procedure, 1898. This acquittal appeal is barred by more than 05 months. Delay in filing of the acquittal appeal cannot be condoned unless it is shown that the state was precluded from filing the appeal in time due to some act of acquitted respondents or by some circumstances of a compelling nature, beyond the control of the State. The reason for taking the strict view is that in most jurisdictions an acquittal, once recorded by a competent Court is final and the matter cannot be reopened at the instance of any party including the State. However, under the law, an acquittal can be challenged in certain circumstances, but if it is not challenged within the period allowed by law it becomes final. In these circumstances, it is only just and proper that appeal against acquittal must not be entertained if it is filed beyond time, unless it be shown that state was prevented from moving the same by an act of the acquitted accused or by some circumstance of a compelling nature beyond the control of the state. Winding up the above noted discussion on the point of limitation, the acquittal appeal having been filed after delay of more than 05 months, have created valuable rights in favour of the respondents. It is held in the case of Hussain Bakhsh vs. Allah Bakhsh (1981 SCMR 410) as under:

“It must also be stated that it has been the consistent view of this Court, as expressed in Nazar v. The State (1968 S C M R 71), Jalal Khan v. Lakhmir (1968 S C M R 1345), Muhammad Khan v: Sultan (1969 S C M R 82), Piran Ditta v. The State (1970 S C M R 282), and Nur Muhammad v. The State (1972 S C M R 331), that in petitions against acquittal delay cannot be condoned unless it is shown that the petitioner was precluded from filing his petition in time due to some act of the acquitted respondents; or by some, circumstance of a compelling nature; beyond the petitioner's control. The reason for taking the strict view is that in most jurisdictions an acquittal, once record by a competent Court is final, and the matter cannot be reopened at the instance of any party including the State. However under our law, an acquittal can be challenged in certain circumstances, but if it is not challenged within the period allowed by law, it becomes final. In these circumstances is only just and proper that a petition against acquittal must not be entertained if it is filed beyond time, unless it be shown that the petitioner was prevented from moving the wine by an act of the acquitted accused; or by some circumstance of a compelling nature beyond the control of the petitioner.”

We have found no sufficient cause to condone the delay, filed by an incompetent person. The appeal against acquittal is liable to be dismissed on the sole ground of delay in filing of the appeal.

11. We have also re-examined the prosecution evidence, we have found that prosecution has failed to establish its case beyond shadow of reasonable doubt for the reasons that admittedly there was violation of section 103 Cr.P.C, the prosecution has failed to examine author of the document produced at trial and that witnesses failed to describe the role of the accused persons in their evidence. Trial Court has mentioned the anomalies and weaknesses in the prosecution case, made the prosecution case doubtful. Attention of Addl. P.G has been drawn to those contradictions but he could not satisfy the Court. Trial Court has rightly held that there are several circumstances in the prosecution case which have created reasonable doubt. A single doubt is sufficient for recording the acquittal. The findings of the trial Court were based upon sound reasons. On our re-examination, we are unable to take different view. Moreover, scope of interference in appeal against acquittal by this Court 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. Normally courts are very slow in interfering with such an acquittal 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.

12. In the present acquittal appeal, the findings of acquittal recorded by the Drug Court are neither perverse, arbitrary, foolish, artificial, speculative nor ridiculous.

13. For the above stated reasons, we hold that acquittal recorded by the Drug Court requires no interference by this Court. As such, above appeal against acquittal is dismissed.

J U D G E

J U D G E