THE HIGH COURT OF SINDH, KARACHI

Criminal Acquittal Appeal No. 146 of 2011

 

Present

                                                                                Mr. Justice Naimatullah Phulpoto

                                                                                Mr. Justice Khadim Hussain Tunio

 

 

Date of Hearing:                                            26.09.2017

 

Date of announcement of judgment:                        02.10.2017     

 

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

 

Respondent:                                                   Qadir s/o Miskeen not appeared.

 

 

J U D G M E N T

 

NAIMATULLAH PHULPOTO, J:  Respondent/accused was tried by learned Special Judge-I (CNS) Karachi, in Special Case No.50/2006  for offences under Sections 6/9 (c) of the Control of Narcotic Substances Act, 1997 registered at P.S. ANF-II, Karachi, by Judgment dated 18.09.2010, Respondent/accused was acquitted by extending him benefit of doubt. State/ANF filed instant Criminal Acquittal Appeal No.146 of 2011 against the acquittal recorded by the trial Court.

 

2.         Brief facts leading to the filing of the appeal against acquittal are that on 19.05.2006, Sub-Inspector Khalid-uddin Khan of P.S ANF-II, Mohammad Ali Society, Karachi along with his subordinate staff left P.S vide Entry No.13 at about 1700 hours for patrolling towards Korangi. During patrolling they received information that Mohammad Miskeen along with his son Qadir openly running business of narcotic and his adda was situated in Bilal Colony, Mohammad Ali Goth. They reached the pointed place at 1830 hours, on seeing them, one person ran away by scaling over the wall of the H.No.BCCA/015, ANF officials chased him, but he succeeded to escape away. PC Mohammad Nasir and HC Mohammad Aslam acted as mashirs and they searched the house. They secured seven nylons thellas from the room of the house. On checking 6 Kattas containing Kuppies while one Katta containing charras in the shape of roads, slabs and one packet charras garda and puries of garda charras were found. Four Kattas were containing 54/54 Kuppies each whereas two Kattas containing 55/55 Kupies, one bottle was drawn as sample from each Katta. Samples were taken from all the 6 Kattas, remaining recovered kuppies were packed in same Kattas and sealed. All recovered Charras in rods, pieces and slabs were packed in the same Kattas and sealed for chemical examination. Samples weighing 10 grams was separated from the garda charras and sealed for chemical analyzer, remaining charras garda was packed in the cloth bag and sealed. Mashirnama was prepared at the spot in presence of mashirs. Case property was brought at police station where FIR bearing Crime No. 23/2006 under section 6/9(c) of the Control of Narcotic Substances Act, 1997 was registered against the accused on behalf of state.

 

3.         Charge was framed against accused by the learned Special Judge-I (CNS) Karachi, under the aforesaid sections at Ex-2. Accused Qadir and co-accused Mohammad Miskeen pleaded not guilty and claimed to be tried.

 

4.         At the trial, prosecution examined three prosecution witnesses. Thereafter, prosecution side was closed at Ex-08.

 

5.         Statements of the accused were recorded under Section 342 Cr.P.C. as Ex.9 & 10 respectively, in which accused have denied the prosecution allegations and stated that they have been falsely implicated by the ANF police. Accused neither examined themselves on Oath in disproof of prosecution allegations nor produced any evidence in their defence.

 

6.         On the conclusion of the trial, learned Special Judge-I (CNS) Karachi, after hearing the learned counsel for the parties, on the assessment of entire evidence acquitted the accused by judgment dated 18.09.2010, mainly for the following reasons:- 

 

“On careful examination of evidence it reflects that the prosecution has produced doubtful evidence regarding the identification of accused Qadir, according to complainant/musheer P.C Suraj the accused Qadir was identified by the HC Mohammad Aslam, when he was jumping over the wall. The HC Mohammad Aslam has not stated such facts in his examination, even he has not explained that how he was acquainted to the accused Qadir prior to this occurrence. Serious improvement /contradiction and exaggeration have been noticed in the testimony of pws, PC Nasir has been explained in cross examination that accused Qadir jumped over the wall through wood stairs case, where as no such fact has been mentioned in his statement u/s 161 Cr.P.C, neither any of the PWs has said so, even memo of recovery does speak so. According to P.W P.C Nasir that they along with spy enter in to the house and seen the accused Qadir while jumping over the wall, where as the HC Mohammad Aslam has not testified that on seeing police mobile accused jumped the wall, accordingly the house in question had compound wall, their was no contention that their mobile went inside the house. None of the pw has disclosed the feature of the escapee accused in the memo of recovery, FIR and statement u/s 161 Cr.P.C nor they prepared separated Hula form of the escapee accused. The prosecution has no other corroborated evidence against the accused Qadir, in such circumstances the identification of accused Qadir is doubtful and cannot be relied upon. Reliance is place on 1985 SCMR 1834, 1993 SCMR 585 in this case all the PWs are official and no private witness has been cited as witness, though the place of occurrence is populated area and time of occurrence was bright day time. There was no doubt that official witnesses are good and competent witnesses as like other citizen, but in case of this nature where the fate of an accused depends upon the sole testimony of officials. The court must scrutinize their evidence with utmost care and attention. In this case the house was raided in pursuant of secrete information. It was day time occurrence, but so search warrant was obtained nor any explanation furnished for non obtaining of search warrant, according to the PWs at the time of occurrence they were on patrolling duty, but no Roznamcha entry of their departure has ever been produced to prove that they were actually on patrolling at the relevant time of occurrence. According to the I.O the recovery was effected on 19/05/2006, but the samples were sent on 26/05/2006 after delay of 72 hours, he has not given any explanation for this delay beside this several contradictions and discrepancies have been found in the evidence of PWs on important aspect of case. In view of the above circumstances, I am of the opinion that prosecution has failed to brought on convincingly tangible evidence regarding the involvement of accused to connect with the commission of offence, point is answered accordingly.

 

POINT NO.2:

What has been discussed above I am of the opinion that the prosecution has failed to prove the involvement beyond any reasonable doubt of the both accused Miskeen and Qadir to connect with the commission of offence, I therefore acquit the both accused Miskeen s/o Agha Khan and Qadir s/o Miskeen, both accused are present on bail, their bail bond stand cancelled and surety discharged and not required any more in this case.”

 

7.         Mr. Habib Ahmed, learned Special Prosecutor ANF, argued that prosecution has proved its case against the accused. Sufficient evidence was brought on record by the prosecution to connect the accused in the commission of the offence. Lastly, it is contended that prosecution proved its case but trial Court without assigning sound reasons acquitted accused. It is prayed that acquittal may be converted to conviction.

 

8.         We have gone through the evidence with the assistance of Mr. Habib Ahmed, Special Prosecutor ANF. From the perusal of the evidence, it appears that Respondent was identified by one Head Constable at the time of raid at the house. Said Head Constable could not satisfy the Trial Court as to how he identified the Respondent/accused. Mere word of Head Constable that he identified accused could not be relied upon. Trial Court for the valid and sound evidence has disbelieved his evidence. Apart from that there was nothing on record that ANF officials had not made efforts to catch hold the accused at the time when he jumped over the wall and ran away. In the evidence produced before the Trial Court, it has also not come on record that house in question was in exclusive possession of Respondent. Trial Court rightly disbelieved the evidence of the prosecution witnesses and recorded acquittal in favour of the accused. Judgment of the Trial Court is neither perverse nor arbitrary. So far the appeal against acquittal is concerned after acquittal Respondent/accused has acquired double presumption of innocence, this Court would interfere only if the judgment was arbitrarily, capricious or against the record. But in this case there were number of infirmities and impugned judgment of acquittal in our considered view did not suffer from any misreading and non-reading of the evidence. As regard to the consideration warranting the interference in the appeal against acquittal and an appeal against conviction principle has been laid down by the Hon’ble Supreme Court in various judgments. In the case of State/ 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.”

           

9.         For what has been discussed above, we are of the considered view that impugned judgment is 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, Criminal Acquittal Appeal No. 146 of 2011 is without merits and the same is dismissed.                                                             

 

 

JUDGE

 

                                               

JUDGE