Criminal Acquittal Appeal No. 19 of
2008
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Khadim Hussain Tunio
Date of Hearing: 19.09.2017
Date of
announcement of judgment: 27.09.2017
Appellant: The
State/ANF through Mr. Habib Ahmed Special Prosecutor.
Respondent: Mohammad
Moosa not appeared.
NAIMATULLAH PHULPOTO, J: Respondent/accused was tried by learned Special
Judge-II (CNS) Karachi, in Special Case No.310 /2004 (old Special Case
No.94/2002) for offences under Sections 6/9 (c) of the Control of Narcotic
Substances Act, 1997 registered at P.S. ANF-Clifton, Karachi, by Judgment dated
14.09.2007, Respondent/accused was acquitted by extending him benefit of doubt.
State/ANF filed instant Criminal Acquittal Appeal No.19 of 2008 against the
acquittal recorded by the trial Court.
2. Brief
facts leading to the filing of the appeal against acquittal are that 01.03.2002, during patrolling police party of ANF Clifton
started snap checking near Shah Zob Hotel, old Sabzi Mandi. ANF Police found
two persons coming on Vespa Motorcycle, who were stopped. The driver disclosed
his name as Rauf Ali Nadeem while other culprit disclosed his name as Moosa
Khan. Personal search of accused Rauf Ali Nadeem was conducted,
one slab of charras wrapped with belt was recovered. From the personal search
of accused Moosa, two slabs of charras weighing 2 K.Gs were recovered from fold
of his trouser and a cash of Rs.100/-. On search of Vespa Motorcycle, having Registration
No.LEH-8886, two packets of fake currency notes were also recovered. Police
took out samples of 10 grams from each slab for chemical examination and
remaining case property was sealed separately. Mashirnama of arrest and
recovery was prepared in presence of mashirs. Accused and case property were
brought at PS ANF Clifton Karachi, where FIR bearing No.9 of 2002 for offence
u/s 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-II (CNS) Karachi, under
the aforesaid sections at Ex-4. Accused Rauf Ali Nadeem pleaded guilty, whereas
present appellant pleaded not guilty and claimed to be tried. Accused Rauf Ali
Nadeem was convicted on his pleading guilty vide judgment dated 02.08.2003 by
the learned Trial Court.
4. At
the trial, prosecution examined two prosecution witnesses. Thereafter,
prosecution side was closed at Ex-15.
5. Statement
of the accused was recorded under Section 342 Cr.P.C. as Ex.17 in which accused
has denied the prosecution allegations and stated that he has been falsely
implicated by the ANF police. Accused neither examined himself on Oath in
disproof of prosecution allegations nor produced any evidence in defence.
6. On
the conclusion of the trial, learned Special Judge-II (CNS) Karachi, after
hearing the learned counsel for the parties, on the assessment of entire
evidence acquitted the accused by judgment dated 14.09.2007, mainly for the
following reasons:-
“14. P.W-1 who has one of
the mashir of recovery in Ex.P/1 has produced the case property as Article-A and according to the note of learned Predecessor at the
time of its production in the Court it was unsealed when produced. PW1 when
cross examined has admitted that he has produced the unsealed case property as
Article-A in the Court. So also that white cloth thelli was also produced in
the Court on which one broken piece of two signs of
sealing material were appearing. PW1 has admitted that the aforesaid thelli was
not pure white but different words on it in different color were printed on
both the sides of said thelli. PW1 has however admitted that charras Patti
produced so are contained in khaki envelope which too was torned and badly
damaged. He failed to show any reason as to why the same was not properly
sealed and what was the reason of khaki envelope
produced in torned and damaged condition. PW1 has reaffirmed that
two khaki envelope in torned and damage condition was lying in Court.
PW2 the Complainant who has recovered the alleged case property in this case
was admittedly remained Malkhana Incharge for about one year after registration
of this case and seals and keys of Malkhana remained with him, but has not been able to clarify the above stated situation of
case property when produced in the Court. Mashirnama Ex.P/1 is token of such seizer, weighing, sealing and arrest of
accused and all the process stated to be done at place of wardat and showing
that property was sealed. Entire logic of sealing is that the sample drawn from
the case property, after sealing to be sent for chemical examination and to
affirm that the same is part of narcotic and remaining is sealed at the spot to
produce the same before the Court in the same condition in which was allegedly
recovered. The unsealed case property is produced by the prosecution in the
Court without any explanation and production of such unsealed charras as case
property and a separate thelli and two torned khaki envelope containing charras
patties and the condition while producing case property as on record does not
substantiate the version of PW1 and PW2 before the Court as regard to the such seizer
and sealing nor the contents of mashirnama substantiated and therefore, it can
safe to come to the conclusion that mashirnama is not substantiated by PW1 and
PW2. The intention of legislation regarding sealing of case property is to
establish that a particular case property was recovered and after performing
necessary formalities (such as weighing, sealing, sampling) it was saved by
sealing it to produce it in the Court with the same identification for the
purpose to substantiate the alleged recovery but sanctity is absolutely missing
in this case. No explanation whatsoever in this regard is given by the
prosecution.
15. Furthermore, mashirnama
of recovery, seizure and arrest is material and positive piece of evidence and
requires it preparation at the spot. In the instant case memo is said to be
prepared at the spot i.e. Sabzi Mandi which is admittedly a busy place and
admittedly there are many shops, bus stop and patrol pump as well as known
hotel Shahzob Hotel situated there. According to PW1 while they were on
patrolling duty and reached at old Sabzi Mandi they were informed by the
informer about the narcotics which was to be shifted on Vespa Scooter so when
they reached near Shahzob Hotel they waited there and at about 8.00 pm they saw
Motorcycle coming from the front side. The aforesaid Vespa was intercepted and
search was taken and two accused persons were arrested and recovery was made
and the case property was weighed and samples were drawn from the case property
and sealed separately and then mashirnama was prepared. In cross-examination
PW1 has stated that it took 1.5 hours in completion of all above process at
place of wardat. This PW is one of the mashir and has also produced mashirnama
Ex.P/1 which is showing its preparation time 2000 hours i.e. 8.00 pm which
leave to the presumption that apprehension of the accused persons and
interception of Vespa Scooter was made one hour before i.e. 1900 hours which
time does not substantiate the time as contained in body of the mashirnama. So
also with testimony of PW1 who has stated that about 8.00 pm they saw the
relevant Vespa and intercepted it. PW2 the Complainant Ghulam Abbas has taken
the same version in deposition and he too has state tht at about 8.00 pm the
relevant motorcycle along with accused persons was intercepted and thereafter
the recovery was made. Ghulam Abbas has prepared the memo and has stated that
all the process viz apprehension of the accused persons, search, seizer,
weighing drawing samples and their sealing and sealing of recovery, all the
process took 1.5 hours in its completion, but has denied that the time 2000
hours mentioned on memo Ex.P/1 is the time of preparation of memo. The time
2000 hours on memo Ex.P/1 is the time of wardat that entire process mentioned
herein above then what was the time of preparation of memo, the same has not
been explained by the prosecution nor any Roznamcha entry of the PWs arrival is
produced to testify their truth with the time of Roznamcha entry in thana nor
departure entry is produced neither any number of any Station Diary is given
and admittedly in memo or 161 Cr.P.C statement or in FIR the PWs have given any
such entry number or any type of extract of Roznamcha to substantiate the
prosecution version that they left Police Station for patrolling and reached
Sabzi Mandi within their legal procedure of patrolling. Prosecution witnesses
have also not produced any authorization from the superior to intercept in this
case and their merely words of the complainant that they intimated their
superior after receiving spy information. Place of wardat is a busy market
place and admittedly people were there and huge traffic was on the way and
there was also bus stop as well as patrol pump and hotels, but admittedly none
from the patrol pump or hotel or bus stop was made mashir to justify the afore
said recovery at the place of wardat or the recovery itself.
16. The above discussion of
unsealed case property and afore said situation creates doubt and it has been
held in PLD 2003 Karachi 606 that where a single circumstance creates doubt in
a prudent mind its benefit is to be gone to the accused not as a matter of
grace, but as a matter of right. It is settled principle of law that benefit of
doubt always goes to the accused. The Point No.1 is therefore, answered as ‘NOT
PROVE’.”
7. Mr. Habib Ahmed, learned Special
Prosecutor for 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 heard the learned Special Prosecutor for ANF and
perused the record. We have come to the conclusion that prosecution has failed
to prove its case against Respondent/accused for the reasons that case property
was not produced before the Trial Court in the sealed condition. A number of
infirmities were noticed by the Trial Court, which have been highlighted in the
judgment dated 14.09.2007 as referred in the preceding paragraphs. Ingredients
of offence with which the Respondent/accused was charged are not satisfied from
the evidence, which has been brought on record. 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. 19 of 2008 is without merits and the same
is dismissed.
JUDGE
JUDGE