THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.170 of 2013

Before:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellant: The State/A.N.F. through Mr. Shafiq Ahmed, Special Prosecutor A.N.F.

Respondent: Manzoor Ali son of Juma Khan through M/s. Mushtaq Ahmed CHandio and Buxial Khan Gudaro, Advocates

Date of Judgment: 17.11.2016

J U D G M E N T

NAIMATULLAH PHULPOTO, J: This is Criminal Acquittal Appeal filed by Anti-Narcotic Force, Karachi against Manzoor Ali, who has been acquitted by learned Judge, Special Court CNS-I, Karachi in Special Case No.828/2011 for offence under sections 6/9(c) of the Control of Narcotic Substances Act, 1997, vide order dated 19.12.2012 accused Manzoor Ali was acquitted under section 265-K, Cr.PC. It appears that accused Ahudu Manliki, Rehmat Wali, Saleem Khan and Shahid Ahmed were tried by learned Judge, Special Court CNS-I, Karachi in Special Case No.45 of 2005. During trial of above named co-accused, accused Manzoor Ali had absconded away. Case of Ahudu Manliki, Rehmat Wali, Saleem Khan and Shahid Ahmed proceeded. By judgment dated 29.09.2010 accused Ahudu Manliki, Rehmat Wali and Saleem Khan were convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to R.I. for 10 years each and fine of Rs.100,000/- each and in default of payment they were ordered to suffer R.I. for six months more.

2. Learned Special Prosecutor A.N.F. pointed out that appellants Saleem Khan and Rehmat Wali filed Criminal Appeals Nos.460 and 461 of 2010 before this Court. This Court vide judgment dated 23.01.2014 allowed appeals and acquitted both the appellants named above, consequently, judgment passed by the trial Court dated 29.09.2010 was set aside. Thereafter, it appears that respondent Manzoor Ali was arrested and produced before the trial Court. He moved an application under section 265-K, Cr.PC. After hearing the learned counsel for the parties, application under section 265-K Cr.PC was allowed by the learned Judge, Special Court CNS-I, Karachi and accused Manzoor Ali was acquitted, mainly for the following reasons:-

“The Court took the cognizance of the matter. The absconding accused Manzoor Ali was arrested and released on post-arrest bail on 21.12.2011. The case against the co-accused had already stood tried and decided in conviction before the appearance of this accused took place in this court. The learned counsel for the accused has moved an application for disposal of the case of the accused under section 265-K Cr.PC. The same was technically disposed of as dismissed for want of R and Ps. lying in the Honourable High Court in appeals against the said conviction order bearing Criminal Appeal No.460/2010 (Saleem Khan vs. State) and Criminal Appeal No.461/2010 (Rehmat Ali vs. State). The learned counsel approached the learned appellate court and obtained an order dated 14.12.2012 in the matter, which carries directions of such appellate forum to this court to dispose of the application of the accused afresh, and the required R & Ps were dispatched to this court for such purpose as well. The matter was already heard. The case against accused Manzoor is not free from doubt, there is no positive evidence of incriminating nature against him while there is no public witness in the matter at all, ASI Nazeer Alam is the source of information against all the accused belonging to PIA, and being of A.N.F., needs corroboration at least to the extent of his credibility to such source of information and if he himself witnessed such people on the given spot, then, the matter would need evidence to establish his presence and so also his acquaintance with such people so much so that such identification could become acceptable for any practical purpose of law particularly, the instant one, which is nowhere available. The SPP failed to point out any incriminating evidence other than what is discussed above, which as observed above, is worthless for the purpose in question for the reason aforesaid. There is no likelihood of the accused being convicted in the matter for any offence on the basis of the material of the prosecution for want of positive proof as to the involvement of the accused in the commission of the crime. The defence counsel states that the accused has already suffered irreparably, as a matter of social life including family life with carrier of children as well and even lost his job, too, for having remained absent from duty, which was not willful but under the reasonable apprehension of his arrest in an unwarranted criminal investigation and case, with the result, he stood dismissed from service and got declared absconder in the matter and ultimately, went in judicial confinement as UTP thereof, although being innocent, and or charge sheeted with no positive evidence of incriminating nature, he was entitled to enjoy freedom in all respects. The SPP does not make any comments adverse to such contention except that the absconsion of the accused when read with the evidence will furnish a ground to hold him ‘guilty’ in the matter. Such contention deserves no consideration being unsound in law, for the material referred to, by the SPP in such contention, as observed above, is doubtful, and hence the same needs no consideration against the accused while mere absconsion of the accused, does not make him ‘guilty’ to any offence in the eye of law. The absence from the Court and or from the duty as pinpointed above, both being under compulsion, seem to be the outcome of the reasons beyond his control as a matter of fairness and principles of rationality. However, the matter of fate of service of the accused is the subject of his department (employer) company i.e. PIA, which may decide the same if such matter is brought to him on the part of the accused on the basis of the instant order, without being prejudiced thereby.

Consequently, the accused stands acquitted of the case on such scorers and the application stands disposed of in the above terms, accordingly as allowed as prayed for, in the interest of justice.”

3. Mr. Shafiq Ahmed, learned Special Prosecutor A.N.F. admitted that case of respondent Manzoor Ali is identical to the case of co-accused Rehmat Wali and Saleem Khan, who have been acquitted in appeal by this Court. Learned advocate for respondent Manzoor Ali has also read over evidence of PW-3 ASI Nazir Alam of A.N.F., in order to satisfy the Court that case of respondent Manzoor Ali is identical to the case of co-accused Rehmat Wali and Saleem Khan. Learned Special Prosecutor ANF submitted that acquittal recorded by this Court in favour of Saleem Khan and Rehmat Wali in Appeals Nos.460 and 461 of 2010 has not been challenged before the Honourable Supreme Court of Pakistan. Relevant portion of judgment of this Court is reproduced as under:-

“9. It is also admitted by PW ASI Nazir Alam in cross-examination that the suitcase in question was not opened or any heroin was recovered from it in his presence. The evidence of this main and material witness appears as to be maneuvered and set up one for the reasons that he not only failed to note number of PIA vehicle wherein said suitcase was allegedly brought and even could not give the number of Bay where aero-plane was parked. In cross-examination he said 7/8 persons were loading the baggage in aircraft where he was there and none had objected on placing the suitcase in the luggage. He had also failed to note mark of container in which the said suitcase was placed. In the circumstances of the case discussed above, the evidence of PW Nazir Alam is not seemed to be trustworthy and reliable.”

4. Record reflected that PW-3 ASI Nazir Alam of A.N.F. has deposed before the trial Court that on 31.03.2015 at 07:40 a.m. accused Manzoor Ali, Rehmat Wali and Salim Khan, employees of the PIA came in PIA vehicle and they had taken out one briefcase/suitcase from the vehicle and put in the transit container of aircraft and went away.

5. From the deposition of above named PW it is clear that case of respondent/accused Manzoor Ali, Rehmat Wali and Salim Khan was identical, containing same allegations. This Court has held that evidence of PW Nazir Alam was not trustworthy and reliable. As a sequel, accused Rehmat Wali and Saleem Khan have been acquitted by this Court. According to law, there would be equal treatment with respondent/accused Manzoor Ali. Even otherwise, scope of acquittal appeal is different from the appeal against the conviction. 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 gross misreading of evidence, resulting in miscarriage of justice as held in the case reported as State versus Government of Sindh through Advocate General Sindh, Karachi versus Sobharo (1993 SCMR 585). 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.”

6. For what has been discussed above, we are of the considered view that impugned order dated 19.12.2012 is based upon valid and sound reasons. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, the appeal is without merit and the same is dismissed.

J U D G E

Gulsher/PS