HIGH COURT OF SINDH AT KARACHI

 

Criminal Acquittal Appeal No. 89 of 2011

            

Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

                                      

 

Appellant         :                        The State/ANF through Mr. Shafiq Ahmed Special Prosecutor ANF.

 

Respondent No.1/accused  :     Mohammad Ali Sootwala is present in person.

 

Date of Hearing                 :      10th August 2017                                          .

 

Date of announcement   :         10th August 2017                                          .

 

 

JUDGMENT

 

NAIMATULLAH PHULPOTO,J.—Respondent/accused Mohammad Ali Sootwala was tried by learned Special Judge-I,(CNS) Karachi in Special Case No. 39 of 2004. After full-dressed trial by judgment dated 3rd June 2010, Respondent No.1 Mohammad Ali Sootwala along with another accused was acquitted. The State/ANF through its Deputy Director (Law) challenged the acquittal recorded in favour of Respondent/accused before this Court.

 

2.       Brief facts leading to the filing of the appeal are that on 14.07.2003, complainant SI Jehangir Khan was busy in interrogation of accused Mohammad Essa in FIR No. 21 of 2003, during which accused Mohammad Essa disclosed that he is drug dealer. His friend Mohammad Ali Sootwala (present accused)is his partner in the business who resides at Ocean Chapel Clifton and further disclosed that they smuggle narcotics abroad and in the city. It was further disclosed that accused Mohammad Ali Sootwala used his car bearing No. AAQ-339. On such disclosure, complainant along with ASI Shakeel Ahmed, HC Mohammad Hassan and other ANF staff proceeded from PS at 1710 hours and reached at Ocean Chapel at 1730 hours and saw that one car bearing No. AAQ-339 was stopped by one person, who disclosed his name as Mohammad Ali who was apprehended by ANF officials and from search of the car one white cloth bag was recovered under the driver seat, it contained heroin powder and one KK under the seat adjacent to driver seat along with two magazine, one transfer letter from the Dash Board and on personal search of accused cash of Rs.500/- wasalso secured. Recovered heroin was weighed in presence of mashirs which became 1500 grams, out of which 100 grams were separately sealed as sample for chemical examination and remainder was sealed on the spot. Accused Mohammad Ali Sootwala was arrested in FIR Nos. 21 and 22 of 2003. Such memo of arrest and recovery was prepared at the spot in presence of mashirs.After completing the investigation charge sheet was submitted before the learned Special Judge (CNS) Karachi.

 

3.       Charge was framed against the accused u/s 9(c) of the Control of Narcotic Substances Act, 1997, to which both the accused pleaded not guilty and claimed trial.

 

4.       In order to prove its case, prosecution examined two witnesses. Thereafter, prosecution side was closed.

 

5.       Statement of accused was recorded u/s 342 Cr.P.C at Ex.13. Accused denied the prosecution allegations. Accuseddid not examine himself on oath but produced defence witnesses. Accused Mohammad Ali Sootawala was asked the question “Do you want to say anything” to which he replied that he was innocent and falsely implicated in this case. He further stated that he is running real estate business. On 12.07.2003 at evening ASI Shakeel of ANF came to his shop with his visiting card and asked him to go with him to PS ANF Clifton as SI Jehangir Khan has called him. He went to ANF Clifton where SI Jehangir Khan inquired about his business, house and family members. SI told him that he is dealing in narcotics and was an associate of Munir Ahmed Rajput and Essa Khan. SI detained him there for three hours. Thereafter asked him to come next day. On the next day, he went to ANF PS where Inspector Jehangir Khan threatened him to involve in false case or to pay Rs. 5 lacs. Thereafter, he did not go to ANF Police station and resultantly ANF officials raided his house. He was taken into custody in presence of Teacher of his child namely Samson. He further raised plea that nothing was recovered from his house.Thereafter, ANF officials brought his car from parking to P.S after getting key from Chowkidar.

 

6.       Learned trial court after hearing learned counsel for the parties and assessment of evidence came to the conclusion that prosecution has failed to prove its case beyond reasonable doubt. Resultantly, recorded acquittal in favour of Respondent/accused. Hence, this appeal against acquittal is filed.

 

7.       Mr. Shafiq Ahmed Special Prosecutor ANF argued that prosecution had proved recovery of heroin powder from car of Respondent/ accused Mohammad Ali Sootwala.It is also contended that all the prosecution witnesses have fully implicated the Respondent/accused in the commission of offence. Learned Special Prosecutor argued that trial court has not assigned sound reasons for acquittal of respondent/accused and trial Court had not appreciated evidence according to the settled principles of law. Learned Special Prosecutor ANF lastly, argued that prosecution had established its’ case against Respondent/accused and submitted that Respondent/accused may be convicted for the offences with which he was charged.

 

8.       Respondent No.1 Mohammad Ali Sootwalais present in person states that the case against him was false and nothing was recovered from him. He further stated that he was falsely involved in the present case as he had not paid gratification to Inspector Jehangir. He prayed for dismissal of the instant Criminal Acquittal Appeal. Respondent No.2 was reported to have expired but SHO P.S ANF failed to submit confirmation report about his death.

 

9.       After hearing learned counsel for the parties, we have carefully gone through the entire evidence and impugned judgment dated 3rd June 2010, particularly reasons recorded by trial court for acquittal. It appears that trial court has acquitted the Respondent/accused for the following reasons:

 

“17. In this case the allegation against the accused Muhammad Ali Sootwala is that during interrogation in FIR No. 21 of 2003 and FIR No.22 of 2003 already arrested accused Muhammad Essa during interrogation disclosed that the present accused Muhammad Ali Sootwala is his partner in narcotic business. On such disclosure the Complainant SI Jahangir Khan apprehended the accused Muhammad Ali Sootwala on 14.07.2003 from a car bearing Registration No. AAQ-339 at parking area of Ocean Chapel, Clifton, Karachi and secured 1500 Grams of Heroin powder from his possession alongwith weapons and that 100 Grams of Heroin powder taken out as sample and sealed in khaki envelope.

 

18.     PW1 the Mashir of recovery and arrest and eye witness of the case HC Muhammad Hasan has deposed in Cross-examination that he did not know if house of the accused was also searched and PW2 the Complainant and Investigating Officer of the case SI Jahangir Khan has deposed in Cross-examination that on 14.7.2003 he was also working as SHO, but in Cross-examination he has stated that after seeing the record only he can say who was the SHO at main Clifton police station. On 14.07.2003 and he cannot say if he was not himself SHO of Police Station ANF Clifton on 14.07.2003 and also cannot say when he started working SHO Clifton without seeing the record. PW1 Hasan deposed that he does not know if the house of accused Mohd Ali Sootwala was also searched and PW2 Inspector Jahangir deposed that he was not the SHO at that time, therefore, the evidence of prosecution witnesses are not reliable and creates doubt about their truthiness and Ex P1 Mashirnama was prepared by PC Hayat Niazi but he was neither cited as witness nor examined as the preparation of Mashirnama on the spot has not been proved.

 

19.     Complainant/I.O SI Jehangir Khan in his Examination-in-Chief appear to have supported the FIR, but in his cross-examination he has admitted that in the Mashirnama color of Heroin is not mentioned and whether or not it was tested with kit or not is not mentioned? Although he has stated that the Heroin was tested with chemical using a tube, and that chemical is used a particular color appears with which they conclude that it is Heroin, and same happened in this case, and that light green color when appears, they come to the conclusion it is Heroin.

 

20.     In this case both the prosecution witnesses PW1 HC Muhammad Hasan and PW2 SI Jehangir Khan has deposed that 1500 grams of Heroin powder had allegedly been secured from accused and one hundred grams Heroin powder had been taken out as sample and deposited with the chemical examiner on 15.07.2003 and produced chemical examination report dated 30.12.2007 as Exh.P/4, which shows that 96.700 Grams gross weight and 92.800 grams net weight received by the chemical examiner as such a doubt has been created with regard the recovery made and sent to chemical examiner. Reliance is placed on SBLR 2008 Sindh 561 (Ali Murad V/s. The State) wherein the gross weight of the sample was 25 grams and net weight was 13 grams as per Expert Report whereas according to the witnesses they separated 20 grams narcotic from the recovered case property was sample and it was observed that the sample received by Chemical Analyzer was not the same which was sent to him for examination and report therefore, the chemical analyzer’s report looses its importance and it was held that prosecution has failed to prove that property allegedly secured from the possession of appellant was the alleged contraband and failed to prove the case against appellant beyond any reasonable doubt and allowed the appeal.

 

21.     Accused Muhammad Ali Sootwala examined three defence witnesses, who have supported the version of accused being arrested from his house on 14.07.2003. He was kept in illegal confinement for two days and remand had been taken on 16.07.2003 after two days, and for which Investigating Officer had been issued Show Cause Notice. Further the first FIR bearing number 21 of 2003 in which the prosecution has allegedly secured 3200 grams from accused Munir Ahmed Rajput and all the three above named accused were arrested, was decided vide Judgment dated 04.11.2006  and all the three above named accused were acquitted and the certified copy of the said judgment was produce by accused Muhammad Ali sootwala during final arguments, in which structure has been passed against the Investigating Officer and direction had been given for departmental action.

 

22.     So far as accused Muhammad Essa is concerned, the defence has pleaded enmity with SI Jehangir Khan, which has been established in judgment of FIR No. 21 of 2003 and 22 of 2003 and so also in this case which has been discussed in detail in judgment of FIR No. 221/2003, further no recovery has been made from accused Muhammad Essa in this case.

 

23.     In view of said reasons discussed above doubts have been created in the prosecution case and it has been held in 1995 SCMR Page=1345 that for granting benefit of doubt to an accused it is not necessary that there should be many circumstances to create doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as amatter of right. The accused Muhammad Ali Sootwala s/o Abdul Aziz and Muhammad Essa @ Shah Muhammad @ Shah Khan s/o Haji Faqeer Muhammad are acquitted under section 265-H(1) Cr.PC. Both the above named accused are on bail, their bail bonds are cancelled and sureties are discharged.”

 

10.     Scrutiny of the judgment reflects that learned trial Judge mainly acquitted the accused for the reasons that evidence of P.W-1 HC Mohammad Hassan and P.W-2 SI Jahangir was not reliable as they had given evasive replies in the cross-examination. Trial Court has also mentioned that complainant/IO supported the case of prosecution in his examination-in-chief but in the cross-examination replied that color of the heroin was not mentioned in the mashirnama but later stated that it was light green color. In Para 20 of the judgment, ambiguity in the weight of heroin powder was also noted by the trial Court. Defence plea was also found plausible by the Trial Court. In Para 21 of the judgment, Trial Court has mentioned that accused Mohammad Ali examined three defence witnesses, who supported version of the accused that he was arrested from his house on 14.07.2003. He was illegally confined for two days and his remand was obtained on 16.07.2003 and I.O was issued show cause notice. Trial Court found that there were a number of infirmities/circumstances in the case of prosecution, which created doubt and by extending benefit of doubt, acquitted the accused. Mr. Shafiq Ahmed Special Prosecutor ANF could not satisfy the Court that judgment of the Trial Court was perverse or arbitrary. Therefore, we are of the view that finding of the acquittal recorded by the trial Court can only be upset if the same are found perverse, arbitrary, foolish or based on misreading or non-appraisal of the evidence. In the present case, acquittal recorded by the trial Court is based upon sound reasons.

 

11.     In the case of State versus Government Sindh through Advocate General Sindh, Karachi versus Sobharo (1993 SCMR 585) Honourable Supreme Court has laid down the principle that 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 only gross misreading of evidence, resulting in miscarriage of justice. 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.”

 

12.     Moreover, the scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of the innocence is significantly added to the cordinal rule of criminal jurisprudence as the accused shall be presumed to be innocent until proved guilty. In other words, the presumption of innocence is doubled as held by the Honourable Supreme Court of Pakistan in the case of The State v. Abdul Khalique and others, PLD 2011 SC 554. The relevant para is reproduced hereunder:-

 

“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.     We have come to the conclusion that trial court has examined the evidence deeply and has assigned sound reasons while recording acquittal. Trial court has rightly come to conclusion that prosecution miserably failed to prove its case against Respondent/accused and extended benefit of doubt, while relying upon the case of 1995 SCMR 1345.

 

14.     For what has been discussed above, we are of the considered view that impugned judgment dated 3rd June 2010is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Honourable Supreme Court of Pakistan. 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.       

 

 

 

JUDGE

 

                                      JUDGE

 

 

..