Criminal Acquittal Appeal No. 335 of
2012
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Abdul Maalik Gaddi
Date of Hearing: 14.11.2017
Date of
announcement of judgment: 17.11.2017
Appellant: The
State/ANF through Ms. Shahida Jatoi
Special Prosecutor ANF.
Respondent No.1 & 2: Sikandar
Ali Qureshi and Tahir Iqbal
through Mr. Jamal Ahmed Mufti Advocate along with Respondent No.1.
NAIMATULLAH PHULPOTO, J- Respondents/accused Sikandar
Ali Qureshi and Tahir Iqbal
were tried by learned Special Judge, Special Court-II (Control of Narcotics
Substances) Karachi in Special Case No. 25/2004. After full-dressed trial, by
judgment dated 28.05.2012, Respondents/accused were extended benefit of doubt
and acquitted. Case against absconding accused Mukesh
and Mian Gul was kept on
dormant file.
The
State/ANF through its’ Assistant Director (Law) challenged the acquittal
recorded in favour of Respondents/accused before this Court.
2. Brief
facts of the prosecution case as reflected from the impugned judgment are that
on 25.07.2001, Inspector Ghulam Abbas of P.S ANF Clifton, Karachi received a
letter from Assets Branch of ANF Karachi that Sikandar
Ali Qureshi, Sub-Registrar Defence T-Division-II,
Karachi during his posting a plot bearing No.24, Street-1, Phase-IV, Gizri Karachi which belonged to smuggler/drug baron Haji
Ibrahim Afridi who was involved in Crime Nos.2, 3,
& 4 of 1998 of PS ANF and Crime No.09/2000 of PS ANF-II Karachi registered
in the name of Mian Gul,
brother of accused Haji Ibrahim Afridi. It is further
alleged in FIR that after confirmation of ownership of said property from the
concerned Authorities a notice under Section 6(5) of ANF Act, 1997 was issued
on 11.07.1997 with request not to transfer, disposed
of or change the ownership of the property without permission of ANF and
concerned Court. Said Sub-Registrar of T-Divison-II, Gizri Karachi gave permission of selling the said property,
which thereafter was sold to one Mukesh son of Ram
Chand. Complainant lodged FIR bearing Crime No.23/2001 under Sections 41/42 of
CNS Act, 1997 read with Section 6(6) of the ANF Act, 1997. During investigation
it revealed that Mian Gul
gave General Power of Attorney to one Syed Tanveer at
the instance of owner of Thawar Estate Agency namely Tahir Iqbal in which said Syed Tanveer
working as an employee. After completion of investigation, Challan was
submitted before the concerned Court against accused Sikandar
Ali Qureshi while accused Tahir
Iqbal, Mukesh and Mian Gul were shown as absconders. Subsequently, accused Tahir Iqbal was arrested on 20.10.2001 and faced trial.
3. Trial
Court framed charge against Respondents/accused u/s 6(6) ANF Act read with
sections 41, 42 of CNS Act at Ex.5. Accused pleaded not guilty and claimed to
be tried.
4. At
trial, prosecution examined five witnesses. Thereafter, prosecution side was
closed vide statement at Ex.12.
5. Statements
of the accused were recorded under Section 342 Cr.P.C. as Ex.18 to 19
respectively, in which accused denied the prosecution allegations and stated
that they have been falsely implicated in the case. Accused neither examined themselves
on Oath in disproof of prosecution allegations nor produced any evidence in
defence.
6. Learned
Trial Court, after hearing the learned counsel for the parties and assessment
of the evidence, recorded acquittal in favour of Respondents/accused by
judgment dated 28.05.2012, mainly for the following reasons:-
“25. PW3 Muzaffar
Hussain the then Sub-Registrar II/A Defence, Karachi in his cross-examination
has admitted that in their office inward registered was maintained and at the
relevant time the said Inspector ANF Ghulam Abbas showed to him the letter
(Exh.8/A) but he did not made its entry in the inward register of the office of
Sub-Registrar concerned, Karachi.
26. However, admittedly I/O
Inspector Ghulam Abbas not informed about the freezing of said property to the
Court within three days in the meaning as provided under section 37 CNS Act,
1997. I would like to re-produce section 37(3) of the CNS Act, 1997.
37(3) The
said officer shall trace, identify and freeze the assets during the investigation or trial for
the purpose of forfeiture by the Special Court;
Provided that the Director-General or as the case may be, the officer
freezing any asset shall within three days, inform the Special Court about such
freezing and Special Court shall, after notice to the person whose assets have
been frozen, by an order in writing, confirm, rescind or very such freezing.
27. However, the property in
question has already been released from the list of properties by the then
learned Special Judge (Customs and Taxation) Karachi vide order dated
24.03.2001, Exh.10/A and held that Mian Gul is neither the brother of Anwar Khan Khattak nor he is holding the property on his behalf.
28. Further according to the
Registration Act, 1908 if the document is submitted for registration,
fulfilling all the requirements of the registration law and procedure
particularly the requirements in sections 33 and 35 of the Registration Act
1908 then the Sub-Registrar/registration officer is bound to register the
documents. In this regard learned counsel for the accused has relied upon a
case laws reported in 1989 SCMR 570 (Abdul Baqi Mehar vs. Inspector General of Registration) and 2011 MLD
421 (Ghulam Mustafa Abbasi v/s The State through ACE and another).
29. However, from perusal of
Exh.9/A the attested copy of Banned Register produced by the then Junior Clerk Manzoor Ahmed (PW2) shows that the entry made of above said
property on 28.02.2001 while the property in case had been duly registered much
prior to the said entry, which shows that at the time of registration of the
said property, it was not in the banned register of the office of the Sub-Registrar,
Karachi.
30. However even not a single
solitary evidence has been examined by the prosecution through as per Mashirnamas Exh.8/G and 8/H Inspector Khaliduddin, PC
Shahid Raza and PC Muhammad Ibrahim of ANF are shown
as Mashirs but they have failed to examine being witnesses. even otherwise
alleged letter Exh.8/A has not been proved under the law as provided under Qanoon-e-Shahadat Order 1984 as
the author of the said letter Exh.8/A Inspector Assets Muhammad Ahmed Tatari has not been examined by the prosecution and no
endorsement from the Sub-Registrar office or any office where it was not proved
that the said letter has been delivered to the office of Sub-Registrar
concerned in respect of Banned Register. Moreover, the FIR is delayed by about three
years for which no plausible explanation is given. In view of all above I am
clear in my mind that the prosecution has not been able to prove this case
against the accused persons beyond reasonable doubt. My finding on Point No.1
above therefore is in ‘Negative’.
Point No.2
31. In view of my finding on
the foregoing Point No.1 the prosecution has not been able establish its case
against the accused persons under section 6(6) of ANF Act, 1997 read with
Sections 41/42 of CNS Act, 1997. Consequently accused (i) Sikandar
Ali Qureshi son of Abdul Aziz and (ii) Tahir Iqbal son of Abdul Razzak
are acquitted under section 265-H(1) Cr.P.C. Both the accused are present on
bail their bail bonds are cancelled and sureties are discharged.
32. Absconding accused Mukesh son of Ram Chand and Mian Gul son of Jumma Khan already
declared proclaimed offender vide order dated 07.09.2007 Exh.4. Issue life NBWs
against them through I/O of the case and their case be
kept on dormant file till their arrest.”
7. In our considered view, trial Court rightly acquitted
accused for the reasons that there was delay of about 3 years in lodging of the
FIR for which no plausible explanation has been furnished by the prosecution.
P.Cs Shahid Raza and Mohammad Ibrahim of ANF acted as
mashirs were not examined by the prosecution. Inspector Mohammad Ahmed Tatari has also not been examined. Trial Court has assigned
sound reasons while recording acquittal in favour of the Respondents/accused. It
is well settled principle of law that an appeal against the acquittal has
distinctive features and the approach to deal with the appeal against
conviction is distinguishable from appeal against acquittal, because
presumption of double innocence is attached in the latter case. Order of
acquittal can only be interfered, when it is found on the face of it as
capricious, perverse and arbitrary in nature, which are lacking in this case.
Moreover, it appears that Trial court passed judgment on 28.05.2012 and appeal
was filed on 26.11.2012. Special Prosecutor ANF has failed to explain delay in
filing the instant Appeal. This Court in a case reported as The State/Anti-Narcotics Force through
Deputy Director (Law), Karachi VS Muhammad Adeel
Hussain and another (2010 YLR 1322) has held as under:
“In the case of The
State through A.G. Sindh v. Ameer Bux
1981 SCMR 410 the Honourbale Supreme Court has
observed as follows:---
"It
must also be stated that it has been the consistent view of this Court, as
expressed in Nazar v. The State 1968 SCMR 71, Jalal
Khan v. Lakhmir 1968 SCMR 1345, Muhammad Khan v.
Sultan 1969 SCMR 82; Piran Ditta
v. State 1970 SCMR 282 and Nur Muhammad v. The State
1972 SCMR 331, that in petitions against acquittal delay cannot be condoned
unless it is shown that the petitioner was precluded from filing his petition
in time due to some act of the acquitted respondents; or by some, circumstances
of a compelling nature; beyond the petitioner's control. The reason for taking
the strict view is that in most jurisdictions an acquittal, once recorded by a
competent Court is final, and the matter cannot be re-opened at the instance of
any party including the State. However under our law, an acquittal can be
challenged in certain circumstances, but if it is not challenged within the
period allowed by law, it becomes final. In these circumstances it is only just
and proper that a petition against acquittal must not be entertained if it is
filed' beyond time, unless it be shown that the petitioner was prevented from
moving the same by an act of the acquitted accused; or by some circumstances of
a compelling nature beyond the control of the petitioner."
In the case of
Government of the Punjab v. Muhammad Saleem PLD 1995
SC 396 Honourable Supreme Court has observed as follows:--
"In the
present case, the High Court gave good reasons for declining to condone the
delay. It held that the ground taken by the appellants in their application
under section 5 of the Limitation Act that they could not file the appeal
within time as they had entered into correspondence with litigating departments
and the Solicitor was quite vague and reliance was also placed in a judgment of
this Court reported in 1990 SCMR 1059 wherein it was held that "It is
well-settled principle of law that under section 5 of the Limitation Act, delay
of each day is to be explained" and further that, the Government cannot be
treated differently than a private litigant on the question of limitation under
Section 5 of the Limitation Act."
In the case of
WAPDA v. M. A Rahid 2001 SCMR 722 the Honourable Supreme Court has
observed as follows:
"The
contention of the petitioner that the delay in filing the above petition
resulted on account of late sanction received from the Head Office for filing
of the above petition is hardly a ground for condoning the delay."
In view of
the observations of Honourable Supreme Court of Pakistan in the above cited
case, we are of the view that appellant has not been able to make out a case
for condoning the delay in filing of the appeal and therefore we find no merit
in this application which is dismissed and consequently, also dismiss this
Criminal Acquittal Appeal as time barred and application for exemption from
filing certified copies is also disposed of.”
8. For what has been discussed above, we
have come to the conclusion that neither, there is misreading, nor non-reading
of material evidence or misconstruction of facts and law. We find no merit in this Appeal. Consequently, this
Criminal Acquittal Appeal is dismissed.
JUDGE
JUDGE