IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Spl. Crl. Acquittal Appeal No. D-37 of 2023

Present:-

Mr. Justice Yousuf Ali Sayeed, J.

Mr. Justice Zulfiqar Ali Sangi, J.

Mr. Shafi Muhammad Mahar, Deputy Prosecutor General for appellant/State.

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Date of hearing: 22.11.2023

Date of decision: 22.11.2023

J U D G M E N T

ZULFIQAR ALI SANGI, J; Through captioned Spl. Crl. Acquittal Appeal, the appellant/complainant has assailed the judgment dated 02.10.2023, passed by Additional Sessions Judge-I/Special Judge for (CNS), Khairpur in Spl. Case No.212/2022 (Re-State vs.Ali Bux Korai) emanating from FIR No.253/2022 registered at P.S “B” Section Khairpur, for offence punishable u/S 9(e) CNS Act, whereby the accused/ respondent namely, Ali Bux was acquitted by extending benefit of doubt.

2. The facts of the prosecution case in nutshell are that on 05.10.2022, complainant alongwith his subordinate staff namely ASI Abdul Ghaffar Phuloto, ASI Faheem Naeem Abro, PC Taj Muhammad Mari and PC Khadim Hussain Suhag left P.S under entry No.28, at about 2000 hours for patrolling duty within the jurisdiction of Police Station by official police mobile being driving by DPC Atta Hussain Burdi. During patrolling from different places when they reached near Anaj godown where they saw one person under the headlight of police mobile who was going by road having green colour plastic shopper on his shoulder and accused seeing police party in uniform and police mobile, became confused and tried to run towards Anaj godown but police party immediately stopped the police mobile and get down from it and tactfully apprehended him alongwith plastic shopper due to suspicious at the distance of 8/9 paces and it was about 2030 hours. The recovered shopper was opened and found chars in shape of (18) pieces. Due to non-availability of private person, ASI Abdul Ghaffar Phulpoto and ASI Faheem Khan Phulpoto were appointed as mashirs. On enquiry, captive accused introduced himself as Ali Bux son of Shahid by caste Korai R/o near RTC, Taluka & District Khairpur. The body search of accused was conducted and recovered one currency note of Rs.500/- from his front pocket of his shirt. The chars was weighed through computerized weight scale and it became (10) KGs. 10-10 grams of charas was segregated from each piece for sample purpose and then separately sealed at spot. On enquiry, captive accused disclosed that he used to sell the chars for earning purpose. The complainant prepared such memo in presence of above named police mashirs. Thereafter, captive accused and case property were brought at PS, where FIR was lodged against accused on behalf of State hence, this case.

3. After usual investigation, the police submitted challan against the accused/respondent before the competent Court of law. The learned trial Court completed all legal formalities and framed charge against the accused/respondent, to which he pleaded not guilty and claimed trial.

4. The prosecution has examined in all 05 witnesses who all produced certain documents and items in support of their evidence. Thereafter, the side of the prosecution was closed.

5. The accused/respondent was examined in terms of Section 342 Cr.PC, wherein he denied the allegations leveled against him and pleaded not guilty.

6. Trial court after hearing the learned counsel for the parties and on assessment of evidence, by judgment dated 02.10.2023 acquitted the accused/respondent as stated above. Hence, this acquittal appeal.

7. Mr. Shafi Muhammad Mahar, learned Deputy Prosecutor General appearing for the State contended that the learned trial court has passed the impugned judgment without application of judicious mind; that accused/respondent was apprehended at spot with Chars of huge quantity; that the prosecution witnesses have fully supported the case of prosecution and prosecution has succeeded in proving the charge against the accused. Lastly, he prayed that this acquittal appeal may be allowed and the respondent may be convicted.

8. We have heard learned APG for the State/appellant and have gone through the material available on the record with his able assistance.

9. We have carefully examined the evidence of prosecution witnesses and the impugned judgment. The trial Court also assessed the evidence and found the same unreliable, untrustworthy and of no confidence. We have minutely examined the judgment delivered by the trial Court. The trial Court in the impugned judgment considred the following contradictions including holding that the prosecution has failed to prove safe custody and its safe transmission to the chemical examiner. The contradictions are as follows;

(i). That the complete description of (10) KGs of Charas allegedly recovered from possession of accused are neither mentioned in recovery memo nor in FIR”.

(ii) That the number of recovered currency note of Rs.500/- is not mentioned in the memo of arrest and recovery and copy of FIR.

(iii). That the accused was neither seen selling alleged contraband nor he was found using the same, nor any evidence in this behalf has been brought on record.

(iv). That there are also contradictions in the statement of complainant and mashir regarding the manner in which the accused was arrested and alleged contraband material viz. Charas was shown recovered, weighted the Charas and prepared the memo of arrest and recovery.

(v) That the complainant Inspector Ghulam Hussain Dahri is himself head of the police party while the mashir of arrest and recovery ASI Abdul Ghaffar Phulpoto at the relevant time was acting under his sub-ordination at same PS “B” Section, Khairpur.

(vi) That the alleged contraband material viz. Charas allegedly was recovered on 05.10.2022 but the same was shown sent for chemical analysis on 07.10.2022 with delay of two days for which no plausible explanation has been furnished where it remained for such long period.

(vii). That as per prosecution evidence, complainant Inspector Ghulm Hussain Dahiri has failed to show the place of wardat to investigating Officer SIP Kifayatullah Narejo.

(viii) That the prosecution witnesses have failed to produce the criminal record of accused during trial in order to know that accused is dealing the business of narcotics substance.

(ix). That in this case, all witnesses of this case are police officials and it is well settled principle of law that if entire prosecution case depends upon sole evidence of police official then their evidence must require deeper, conscious consideration and scrutiny as some time the police officials became witnesses deeming it to be their official duty.

10. From the above stated circumstances, it is crystal clear that there are several flaws, discrepancies and contradictions in the prosecution case, which has rendered the case of prosecution as doubtful and the evidence as led by the prosecution is not consistent and confidence inspiring to record the conviction against respondents. Under such circumstances we are of the view that the prosecution failed to produce reliable, trustworthy and confidence inspiring evidence before the trial Court and the trial Court has rightly acquitted the accused. It is settled law that the appreciation of evidence in the case of appeal against conviction and appeal against acquittal are entirely different as has been held in the case of Ghous Bux v. Saleem and 3 others (2017 P.Cr.L.J 836).In the case of Muhammad Mansha Kousar v. Muhammad Asghar and others (2003 SCMR 477), the Supreme Court observed that “the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading, non-reading of evidence… Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible”.

11. It is also a settled principle of law that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. Reliance is placed on the case of Muhammad Tasaweer v. Zulkarnain and 2 others (PLD 2009 SC 53)”.

12. For the foregoing reasons and keeping in view the dictum laid down in the cases (supra), we do not see any weight in the arguments advanced by learned counsel for the appellant / complainant and do not find any illegality in the impugned judgment of acquittal; as such the acquittal appeal is hereby dismissed alongwith listed applications.

JUDGE

JUDGE

Ihsan/*