THE HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal Appeal
No.329 of 2006
Before:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Mohammad Karim Khan Agha
Appellant: The State/A.N.F. through
Mr. Habib Ahmed, Special Prosecutor A.N.F.
Respondent: George Sumair
Gulzar through Mr. Khaleeq
Ahmed, advocate
Date of Judgment: 24.11.2016
J U D G M E N T
NAIMATULLAH PHULPOTO, J: This is Criminal Acquittal Appeal filed by Anti-Narcotic
Force, Karachi against George Sumair Gulzar and Abdul Razzak, who were
tried by learned Judge, Special Court CNS-II, Karachi in Special Case No.354/2004(A)
for offence under sections 6, 7, 9, 12, 14 and 15 of the Control of Narcotic
Substances Act, 1997; vide judgment dated 16.06.2006 accused George Sumair Gulzar and Abdul Razzak were acquitted.
2. Brief facts of the prosecution case are
that complainant SI Jehangir Khan of police station
A.N.F.-I, Gulshan-e-Iqbal,
Karachi lodged F.I.R. at police station, alleging therein that a raiding party
headed by him was on patrolling duty in the Government mobile and reached near
Hassan Square, they received spy information that four persons, namely, Ali
Ahmed, Aziz Lasi, Abdul Razzak
and George Sumair were having huge quantity of
narcotics in their possession and were standing at main bus stop of Essa Nagri, Sir Suleman Shah Road, Karachi for delivering the same to their
accomplice for distribution in the interior. On such information, the
patrolling party proceeded to the pointed place and saw four suspected persons
having bags in their hands standing there and were tried to be apprehended. Two
out of them after throwing their bags made escape good, where PC Shamrez identified them to be dealers Ali Ahmed and Aziz Lasi while two persons were apprehended. As per F.I.R. the
people available there did not show willingness to become witnesses, therefore
ASI Naeem Khan and PC Shamrez
of the raiding party were taken as witnesses of the search and the bag
recovered from the accused which they were having in their hands were searched
and their names and addresses were inquired about. As per F.I.R. one who was
having bag in his right hand disclosed his name as Abdul Razzak
son of Umer and from his bag found 11 slabs of charas
and from his personal search one visiting card and cash Rs.100/- from right
side pocket of shirt were recovered. The other person who was having white
cloth bag in his right hand disclosed his name as George Sumair
Gulzar and his bag was found containing 11 slabs of
charas and from his personal search his NIC and one purse containing visiting
cards, different slips and cash of Rs.150/- and one wrist watch were recovered.
As per F.I.R. arrested accused verified names of escaping accused as Ali Ahmed
and Aziz Lasi and that on checking the bags thrown by
them which were found containing five and four slabs of charas respectively. As
per F.I.R. charas of Ali Ahmed came to 5 Kgs. and of
Aziz Lasi’s came to 4 Kgs. ten
(10) grams from each slab were taken out as sample and sealed at the spot and
that the bag of Abdul Rehman was found containing 11 slaps of charas each of
one Kg. from which ten grams charas each was taken out as sample and sealed at
the spot and that charas of George Sumair ten grams from each slab were taken out as sample
and were sealed at the spot and such mashirnama was prepared and the accused
were arrested.
3. The police during investigation could not
arrest accused Ali Ahmed and Aziz Lasi. After completion
of investigation separate challans against accused
George Sumair and Abdul Razzak
were submitted before trial court in which Ali Ahmed and Aziz Lasi were shown as absconders and separate challans were also submitted in which Ali Ahmed, Aziz Lasi and Hasan Brohi were shown as absconders. After completion of the
formalities against absconding accused, they were declared as proclaimed
offenders. Charge was framed against accused George Sumair
Gulzar and Abdul Razzak by
the trial Court for offences under section 9(c) of the Control of Narcotic
Substances Act, 1997. Accused pleaded not guilty and claimed to be tried.
4. Prosecution examined PWs ASI Naeem Khan and Inspector Jehangir
and closed the prosecution side.
5. Statements of accused under section 342,
Cr.PC were recorded at Exhibits 11 and 12, in which they denied the prosecution
allegations.
6. After hearing the learned counsel for the
parties and assessment of the evidence, trial court acquitted the above named
accused.
7. Mr. Habib Ahmed,
learned Special Prosecutor A.N.F. argued that there were minor contradictions
in the prosecution case and trial Court did not appreciate the evidence
according to the settled principles of law. Acquittal order recorded by the
trial Court was not based on sound and cogent reasons.
8. Mr. Khaleeq
Ahmed, learned counsel for respondent No.1 argued that there were major
contradictions and prosecution could not explain such contradictions in the
evidence of the complainant/IO and mashir. Lastly argued that prosecution case
was doubtful and trial court has rightly acquitted the accused.
9. We have carefully heard Mr. Habib Ahmed,
learned Special Prosecutor A.N.F. and Mr. Khaliq
Ahmed, learned counsel for respondent No.1.
10. In paras 12 to 14
of the judgment, learned trial Court has discussed the prosecution evidence and
highlighted the glaring contradictions and discrepancies in the evidence of prosecution
witnesses, which damaged the prosecution case. Paras
15 and 16 are reproduced as under:-
“15. When Inspector Jehnagir
Khan (complainant/IO) in his cross-examination has stated that people standing
at the bus stand were asked to act as witnesses, but they refused when he has
admitted that in memo it is stated that the passersby were asked to act as
witnesses. He further stated in his cross-examination that he cannot say at
what distance the mobile was parked from the accused and has denied suggestion
that he intentionally avoiding to give distance because
he had not gone there. He has denied that it was not possible for two persons
to runaway, who were unarmed, when ten persons of the raiding party were duly
armed (though has stated that due to rush) in view of 2001 PCr.LJ
1919, relied upon by learned defence counsel. In this connection it is also
important to note that he in his cross-examination has stated that running away
accused were chased by PC Shamrez and PC Pervez and
one or two more, but has stated that he does not know how long they chased and
that none from them had fired in the air to threaten them to stop. This too
therefore has created doubt.
16. Again, he in his cross-examination has
denied that 2/3 buses were always seen at the Essa Nagri bus stop dropping and carrying the passengers. When ASI
Naeem Khan in his cross-examination has admitted that
the stop is very busy and at a time 2/3 busses were seen there, dropping and
carrying the passengers. This contradiction has also created doubt about the
truth of the prosecution story. It is also important to note that he in his
cross-examination has stated that he does not know in which the charas patties
were wrapped and that mashirnama and F.I.R. are
silent in this regard and has admitted in cross-examination that after opening
two patties each of the half Kg. is joined with each other and contains in foil
packing and that such mention is not given in the F.I.R. and in the memo. This
shows that the property is not the same. He has stated that the mobile was
parked near accused persons, when ASI Naeem Khan in
his cross-examination has stated that the mobile was parked 20/25 paces from
the place where the accused were standing. This also has created doubt in the
prosecution story. As against mashir ASI Naeem Khan that they remained at the place of wardat for
about 45 minutes he has stated in his cross-examination that he had not noted
time and cannot say at what time the karwai was completed at the place of wardat. When time in
the memo is very much given and time of the recording of the F.I.R. is very
much given in the F.I.R. It is therefore, surprising as to why he has stated
that he cannot say at what time karwai was completed. He has admitted that the memo does not
read that the signatures were obtained on the samples so also parcels of the case
properties this being mandatory requirements and such mention is not given in
the memo therefore, from this it can be gathered that neither samples were
sealed nor the remaining case properties were sealed at the place of wardat and
police party had not gone there because had they gone there, parcels ought to
have been prepared there and had the witnesses put signatures on the samples
then how such mention was not given in the memo. Again, contrary to ASI Naeem Khan he in his cross-examination has stated that 161 Cr.PC statement of ASI Naeem Khan
was written by PC Siraj and that of PC Shamrez was written by him. This contradiction given clue that
only paper work was done while sitting at the police station. From this also it
can be held that the investigation is dishonest. He has admitted in his
cross-examination that he had not recorded statement of other members of
raiding party except ASI Naeem Khan and PC Shamrez and that others are not cited as witnesses because
they were not to support the false case of the complainant. It is also
important to note that he has also admitted in his cross-examination that in
the F.I.R. it is written that he would himself conduct the investigation,
though says that verbal permission of Assistant Director was obtained but
F.I.R. does not read that. This shows interestedness on the part of the
complainant to falsely implicate the accused. It is also important to note that
he in his cross-examination stated that informant had only given names of four
persons, but not the hulias, then how he identified
the accused persons at the place of wardat, when admittedly the place of wardat
is a very busy bus stop. Again, he in his cross-examination has stated that he
cannot say where PC Shamrez was sitting in the
mobile. This too shows that since they did not go the place of wardat as
stated, therefore, has not stated where he was sitting in the mobile. In
cross-examination he has admitted that people cannot stand on the main road
(due to rush) but in cross-examination has admitted that seeing the accused
parked the mobile by their side, therefore, it is doubtful as to how the mobile
can be parked where people cannot stand on the main road due to rush of
traffic. Again, ASI Naeem Khan in his
cross-examination has stated that shops and plazas were situated at distance of
15/20 yards (from the place of wardat) when Inspector
Jehangir Khan has stated the distance of 50/60 yards.
This also shows that the police party has not gone to the place of wardat as
stated.”
11. Contradictions as highlighted by the trial
court when taken as a whole, were major contradictions
in the prosecution evidence. Learned Special Prosecutor A.N.F. could not
explain such major contradictions in the prosecution case. Major contradictions
cut the roots of the prosecution case. Trial Court had rightly disbelieved such
major contradictions and did not rely upon evidence of the A.N.F. officials.
12. It is settled principles of law that
criteria of interference in the judgment against acquittal is not the same, as
against the cases involving a conviction. Honourable Supreme Court of Pakistan
in the case of THE STATE and others versus ABDUL KHALIQ and others (PLD 2011
Supreme Court 554) has held as under:-
16. We have heard
this case at a considerable length stretching on quite a number of dates, and
with the able assistance of the learned counsel for the parties, have
thoroughly scanned every material piece of evidence available on the record; an
exercise primarily necessitated with reference to the conviction appeal, and
also to ascertain if the conclusions of the Courts below are against the
evidence on the record and/or in violation of the law. In any event, before
embarking upon scrutiny of the various pleas of law and fact raised from both
the sides, it may be mentioned that both the learned counsel agreed that the
criteria of interference in the judgment against ' acquittal is not the same,
as against cases involving a conviction. In this behalf, it shall be relevant
to mention that the following precedents provide a fair, settled and consistent
view of the superior Courts about the rules which should be followed in such
cases; the dicta are:
Bashir Ahmad v. Fida Hussain and 3 others (2010
SCMR 495), Noor Mali Khan v. Mir Shah Jehan and
another (2005 PCr.LJ 352), Imtiaz
Asad v. Zain-ul-Abidin and
another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad
Nawaz and others (2006 SCMR 1152), Barkat Ali v.
Shaukat Ali and others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ
926), Muhammad Tasweer v. Hafiz Zulkarnain
and 2 others (PLD 2009 SC 53), Farhat Azeem v. Asmat ullah and 6 others (2008 SCMR 1285), Rehmat
Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v.
Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz
Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ
1935), Muhammad Aslam v. Muhammad Zafar
and 2 others (PLD 1992 SC 1), Allah Bakhsh and
another v. Ghulam Rasool
and 4 others (1999 SCMR 223), Najaf Saleem v. Lady
Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and
others (2005 SCMR 1175), Mukhtar Ahmed v. The
State (1994 SCMR 2311), Rahimullah Jan v. Kashif and
another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004
SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).
From
the ratio of all the above pronouncements and those cited by the learned
counsel for the parties, it can be deduced that the scope of interference in
appeal against acquittal 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. The
courts shall be very slow in
interfering with such an acquittal judgment, 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. It has
been categorically held in a plethora of judgments that interference in a
judgment of acquittal is rare and the prosecution must show that there are
glaring errors of law and fact committed by the Court in arriving at the
decision, which would result into grave miscarriage of justice; the acquittal
judgment is perfunctory or wholly artificial or a shocking conclusion has been
drawn. Moreover, in number of dictums of this Court, it has been categorically
laid down that such judgment should not be interjected until the findings are
perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis
supplied). The Court of appeal should not interfere
simply for the reason that on the re-appraisal of the evidence a different
conclusion could possibly be arrived at, the factual conclusions should not be
upset, except when palpably perverse, suffering from serious and material
factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR
635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998
SCMR 1281) that the Supreme Court being the final forum would be chary and
hesitant to interfere in the findings of the Courts below. It is, therefore,
expedient and imperative that the above criteria and the guidelines should be
followed in deciding these appeals.
13. In the present case, findings of the trial
court are neither artificial nor speculative or ridiculous. 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.”
14. For what has been discussed above, we are
of the considered view that impugned judgment dated 16.06.2016 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.
15. Above are the reasons for our short order
dated 22.11.2016 announced in Court.
J U D G E
J
U D G E
Gulsher/PS