IN THE HIGH COURT OF SINDH, CIRCUIT COURT

LARKANA

Crl. Acquittal Appeal No. D- 32 of 2019.

Present:

Mr. Justice Muhammad Saleem Jessar.

Mr. Justice Khadim Hussain Soomro.

Appellant: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Respondent: Ali Hyder Kalhoro, through Mr. Abdul Baqi Jan Kakkar.

Date of Hearing: 25.10.2023.

Date of Judgment: 25.10.2023.

Judgment

Muhammad Saleem Jessar, J-. This appeal against acquittal under Section 417 of Cr.P.C is directed by the State through Prosecutor, assailing judgment dated 09.05.2019, passed by the learned Sessions Judge/ Special Judge (CNS) Shikarpur, in Special Case No. 448 of 2016 re; The State v. Ali Hyder, arisen out of F.I.R No. 26 of 2018 P.S Maari, whereby the learned trial Court has acquitted the accused/ respondent Ali Hyder.

2. The case of prosecution as depicted from para 2 of the impugned judgment, reads as under:

“On 04.11.2018 SIP Talib Hussain Chandio SHO P.S Mari, left P.S along with staff under entry No.6, at 1510 hours for patrolling. During patrolling, he received spy information that charas was being transported in Alto Car from Shikarpur. After receipt of information, he came at Sindh Wah and held nakabandi. At 1600 hours he found a car bearing registration NO. APY-471 coming, which was being driven by accused Ali Hyder Kalhoro He got it stopped, conducted physical search of driver and recovered one putti of charas lying under his waist coat and cash of Rs.200/-. He also found a bag lying at footsteps in front of seat by the side of driver containing 25 patties of charas, total charas weighing13 kilograms. He secured the property in presence of mashirs ASI Razik Dino and H.C Talib Hussain, sealed it at the spot under memo, brought the accused and property at P.S and lodged instant F.I.R against the accused on same date at 1700 hours for committing offence under Section 9 (c) of CNS Act, 1997.”

3. On completion of usual investigation, the police filed report to concerned Magistrate against accused/ respondent Ali Hyder. The learned Magistrate took cognizance of the case. Formal charge was framed against the accused/ respondent, to which he pleaded not guilty and claimed to be tried.

4. At trial, the prosecution examined complainant SIP Talib Hussain at Ex.5. Mashir/ ASI Razak Dino at Ex.6. I.O of the case SIP Arab Ali Dayo at Ex.7. P.C Mir Zaman at Ex.9. These witnesses produced on record certain documents. Then, the side of prosecution was closed by the Prosecutor vide his statement Ex.10. The statement of accused was recorded under Section 342, Cr.P.C, who claimed his innocence and false implication in the case. The appellant in his defence took defence to the effect that he has been serving in police department as constable; his two brohter were killed by is opponents and due to such enmity he was implicated in this case on instance of his opponents and that on 03.11.2018 when he was sleeping in village Amir Bux Kalhoro along with his family, he was arrested by police and detained in wrongful condiment and such application under Section 491 Cr.P.C was filed by his brohter and ultimately the police filed this case in order to cover up their illegal acts. He placed on record certain documents in support of his defence. However, appellant neither examined himself on oath nor any witness in his defence.

5. The learned trial Court after hearing the parties counsel passed the impugned judgment, whereby acquitted the respondent Ali Hyder. Hence, this appeal has been filed by the State through Prosecutor General.

6. Learned Addl. P.G. representing the State contended that trial Court has not appreciated the evidence produced at trial according to principles of evaluating the evidence in criminal cases. He further contended that prosecution has produced trustworthy ocular testimony before the trial Court but it has not appreciated the evidence and erroneously extended benefit of doubt in favour of accused/ respondent. He further contended that the prosecution had proved its case beyond any shadow of doubt and the acquittal of the accused/ respondent has caused miscarriage of justice. He lastly contended that the impugned judgment may be set-aside and the accused/ respondents may be convicted.

7. Conversely, learned counsel for the respondent Ali Hyder supported the impugned judgment and contended that the learned trial Court rightly extended benefit of doubt in favour of accused/ respondent. He further submitted that the impugned judgment is based on the detailed discussion of the evidence produced by the prosecution. He lastly, submitted that acquittal appeal may be dismissed.

8. Perusal of the impugned judgment reflects that the learned trial Court inter alia found the material contradictions in the evidence produced by prosecution, as well as other infirmities. The learned trial Court while acquitting the accused/ respondent, has observed that: -

(i) Complainant and Mashir deposed that one patti/ slab was recovered from inside the wait/ baniyan of accused, whereas the Pachka/ bag recovered from car contained 25 patties/ slabs. On the other hand memo and F.I.R in their body too state so, but in the end under heading of description of property it is written that one white plastic pachka contains 26 patties/ slabs of charas.

(ii) It is neither deposed nor mentioned in the memo that the slab/ patti allegedly recovered from physical search of accused was also placed inside the pachka.

(iii) Complainant admitted that memo does not specify as to whether the charas pieces were wrapped with plastic cover or thelhi but then specifically deposed that same were not wrapped with plastic or theli but on showing the case property he admitted some of the pieces of charas are wrapped in golden type plastic transparent sheet.

(iv) PW-2 being eye witness and mashir has too deposed specifically in cross-examination that the patties of charas were not wrapped with any plastic thelhi or transparent sheet.

(v) Charas pieces as per memo and F.I.R were 26 in number in the shape of slabs/ patties but on production before the Court, the same were in the shape of more than 200 small pieces and in this regard complainant admitted that those pieces of charas are hard.

(vi) Complainant deposed that charas was handed over to I.O for which entry bearing number 12 was made. The said entry states that case property was deposited in Malkhana.

(vii) Complainant admitted that pachka of charas produced before the Court does not contain the register number of malkhana of police station. On the other hand I.O deposed during his examination-in-chief that case property was handed over to him by SHO Talib Chandio.

(viii) Both the eye witnesses produced in Court did not remember the descriptions of the car.

(ix) The shape of case property as per memo, F.I.R and depositions of complainant, mashir and the I.O was 26 slabs/ patties, whereas the same on production was found to be comprised over more than 200 pieces.

(x) The I.O further deposed that case property was brought by PC Mir Zaman from Chemical examiner but he is not aware if any entry was made in roznamcha register for return of case property but specifically deposed that he had not received the case property on return from chemical examiner, so also had not got any such entry recorded in roznamcha, so also had not got any memo prepared for it. Thus the fact as to who had brought back the case property from the office of chemical examiner was left unanswered and it shrouded in mystery as to how the shape of charas from 26 slabs was changed to more than 200 pieces.

(xi) As regards ownership of the case, the I.O deposed that he had not associated the owner of the car in whose name the car was registered, though he deposed that he came to know that vehicle is in the name of one Hindu.

(xii) The accused took plea that the case was registered at the behest of his opponents for which I.O during cross-examination admitted that accused disclosed to him about his previous enmity with opponents and had shown apprehension of his murder at their hands. I.O also admitted that from the day of remand, the accused had moved complaints to superior police officials as regards his innocence.

(xiii) The I.O has produced carbon copy of letter written to SSP Shikarpur (Ex.7-B) and deposed that he had sent such letter for obtaining permission to sent the case property to chemical examiner but to perusal of said letter it is with regard to taking of action and submission of report to concerned Police officers having buckle No.2124 posted at police station Airport. This indicates lack of knowledge on the part of I.O as either he had not sought such permission from SSP or he was not aware about the same.

(xiv) During re-examination the I.O produced one entry No.4 from roznamcha and deposed that such entry indicates that PC Mir Zaman along with case property was sent to chemical examiner, but on perusal of said entry it is observed that such entry is recorded by ASI Raziq Dino who is mashir/ PW-2 in this case and it was made at 0900 hours on 07.11.2019 whereas I.O SIP Arbab Ali Dayo through entry No.3 is shown to have left for the Court at 0830 hours along with accused.

9. From accumulative assessment of the above evidence including the aforementioned factors, the learned trial Court determined that the prosecution failed to prove the case against accused, hence duly extending him the benefit of doubt; the learned trial Court acquitted him.

10. When called upon to show the misreading or non reading of evidence or other infirmity afflicting the impugned judgment, particularly the points noted hereinabove, the learned Addl. P.G. could not point out any such error or omission excepting repeating the same arguments.

11. From a careful perusal of impugned judgment and other material, it is found that the contradictions observed by the trial Court have been suitably highlighted in its judgment. The observations of the trial Court on very material points seems to be proper and it has properly commented on all aspects of the case. In these circumstances, the learned trial Court has rightly come to a conclusion that the prosecution could not establish the case against the respondent/ accused.

12. It is well settled principle of law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. The Court sitting in appeal against acquittal always remain slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the case of Muhammad Mansha Kousar v. Muhammad Asghar and others (2003 SCMR 477) the Honourable Supreme Court observed as under:-

“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”.

13. Similar view was reiterated by the Honourable Supreme Court in the case of Muhammad Tasaweer v. Zulkarnain and 2 others (PLD 2009 SC 53), in the following words:-

“Needless to emphasize 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.”

14. For the foregoing reasons and keeping in view the dictum laid down in the case (supra), we do not see any weight in the arguments advanced by learned Addl. P.G. and do not find any illegality in the impugned judgment of acquittal, as such the acquittal appeal being merit-less is hereby dismissed.

Judge

Ansari