IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Appeal No. D- 51 of 2005.
Mr. Justice Sadiq Hussain Bhatti.
Mr. Justice Abdul Maalik Gaddi.
Abdullah Bhutto. ………….Appellant.
The State. ...…..…Respondent.
Mr. Asif Ali Abdul Razzak Soomro, Advocate for appellant.
Mr. Imtiaz Ali Jalbani, A.P.G.
Date of hearing: 12.11.2014.
Date of Judgment: 12.11.2014.
J u d g m e n t
Abdul Maalik Gaddi, J-. Through this criminal appeal, judgment dated 07.6.2005 passed by learned Special Judge (CNS), Shikarpur, in Special Narcotic Case No.470/2000 re; St. Vs. Abdullah & others has been challenged by the appellant, whereby the appellant has been convicted and sentenced to suffer R.I for seven years and to pay fine of Rs.100,000/- and in case of default of payment of fine it was ordered that he shall undergo S.I for six months more. He was also extended concession of Section 382-B Cr.P.C.
2. Brief facts of the prosecution case as gathered from the record are that in the month of August, 1999, Mr. Riaz Ahmed Phulpoto, the then District & Sessions Judge, Shikarpur, came to known about misappropriation of charas lying in the record room of City Magistrate, Shikarpur. He vide his letter No.8980, dated 06.8.1999, directed Mr. Aijaz Ali Khaskhelli City Magistrate Shikarpur and Syed Shakeel Hyder, 2nd Civil Judge, Shikarpur, to verify the property of the pending and the decided cases lying in the record of the City Magistrate, Shikarpur and submit report. Both the officers verified the record and submitted report on 03.9.1999, stating therein that 3424 kilograms of charas was deposited in the record room by Inspector Jehan Khan Mahar in Crime No.20/1994, registered at Excise P.S Shikarpur, out of which, 1345 kilograms were misappropriated. According to their report charas was received by Mr. Muhammad Nawaz Memon ex-clerk at the time of its deposit, while present appellant was Incharge of the record, when it was found misappropriated. They also reported that substance available in record was just like soap. He called explanation of the clerks and reported the matter to the High Court and then the F.I.R of present case was registered on 20.10.1999, at 1735 hours, being Crime No.193/1999. Meanwhile, accused Muhammad Nawaz, Ghulam Hussain and Nisar Ahmed came before the Sessions Judge and confessed their involvement and misappropriation; he reduced their statements in writing. During the course of investigation police joined the six accused alongwith co-accused Ghulam Hussain (since dead) and submitted the challan showing accused Muhammad Nawaz as absconding for offence under Sections 380, 381, 406, 408, 409 P.P.C and 9 (c) and 15 of Control of Narcotic Substances Act, 1997. As per record it appears that while hearing bail application learned 2nd Additional Sessions Judge, Shikarpur, directed concerned police to bifurcate the case in three parts and submit challan in respective Courts. Resultantly, the case for offence under Section 380 and 381 P.P.C was challaned in the Court of IV-Civil Judge and Judicial Magistrate, Shikarpur; while for offence under Section 406, 408 and 409 P.P.C in the Court of Special Judge, Anticorruption, Larkana, and for offence under Section 9 (c) read with Section 15 Control of Narcotic Substances Act, 1997, in the Court of Special Judge (CNS) Shikarpur. Resultantly, three separate challans were submitted in respective Courts.
3. Learned trial Court framed formal charge against the appellant at Ex.11, for offences punishable under Section 9 (c), read with Section 14 of Control of Narcotic Substances Act, 1997, to which he pleaded not guilty and claimed trial. In order to establish its case the prosecution examined Inspector Anwar Ali Gopang at Ex.18, SIP Sarfraz Mahar at Ex.19, who produced F.I.R at Ex.19-A; Memo of scene of offence and sealing of record room as Ex.19-B. Excise Constable Imtiaz Ali Malano at Ex.20. Muhammad Sachal Chano at Ex.21. Mr. Aijaz Ali Khaskhelli City Magistrate at Ex.22, who produced letter of his appointment for verification of record as Ex.22/A, Mashirnama at Ex.22/B, F.I.R in crime No.20/1994 at Ex.22/C, copy of challan at Ex.22/D, Entry at Ex.22/E, Interim report at Ex.22/F, statements of accused Muhammad Nawaz, Ghulam Hussain, Nisar Ahmed recorded before Sessions Judge, Shikarpur, at Ex.22/G to 22/J, copy of order of High Court at Ex.22/K, letter of City Magistrate at Ex.22/L, F.I.R No.193/1999 at Ex.22/M, SIP Ghulam Shabir Talpur at Ex.23. Record shows that an application under Section 265-K Cr.P.C filed by accused vide Ex. 24, which was subsequently withdrawn. Then public prosecutor gave up rest of witnesses and closed side of prosecution vide statement at Ex.25, and produced report of chemical examiner at Ex.25/A.
4. As per record it appears that while dealing with the case administratively, the then learned Sessions Judge got conducted departmental inquiry and held that accused Muhammad Nawaz and Abdullah being Incharges of the record room were directly responsible for misappropriation while other officials were aware about the misappropriation but kept silence purposely, therefore, Messrs Muhammad Nawaz Memon and Abdullah Bhutto were removed from service while increments for one year were withheld for remaining officials. Since the matter was also dealt by Sessions Judge administratively as such statement of Mr. Riaz Ahmed Phulpoto, the then Sessions Judge, Shikarpur, was also recorded as Ex.32, as Court witness.
5. Statement of the appellant was recorded by the trial Court under Section 342 Cr.P.C at Ex.26. Appellant claimed his false implication in the case and denied the prosecution allegations by stating that he is innocent and the case against him has been bifurcated and submitted in three parts, out of which, he has been acquitted by the Court of Civil Judge regarding the theft of charas, other in Anticorruption Court for misappropriation of the charas, in which he has also been acquitted. During course of his statement he has produced the certified true copies of the judgments passed by the 4th Civil Judge, as well as Court of learned Special Judge, Anticorruption Larkana, at Ex.26-A and 26-B. Appellant declined to examine himself on oath and also declined to lead any evidence in disproof of prosecution allegations.
6. After hearing the learned counsel for the parties, learned Special Judge (CNS), Shikarpur, come to the conclusion that the case has been proved against the appellant; he convicted and sentenced the appellant, as stated above. However, the charge of facilitating/ abetting the offence with appellant against accused Akbar, Zamir, Punhal, Raheem Bux and Nasir was not proved and they were acquitted, whereas the case of Mohammad Nawaz was kept on dormant file and proceedings against accused Ghulam Hussain have been abated on account of his death.
7. Mr. Asif Ali Abdul Razzak Soomro, learned counsel for the appellant contended that case against the appellant is false. Nothing was recovered from his possession. Per learned counsel the F.I.R of this case was registered at Police station New Foujdari, Shikarpur, as Crime No.193/1999, under Sections 380, 381, 406, 408, 409 P.P.C and 9 (c) read with Section 15 of Control of Narcotic Substances Act, 1997, and three bifurcated challans were filed by the police in common F.I.R against the present appellant in three different Courts, i.e. Challan under Section 380 and 381 P.P.C was submitted in the Court of IV-Civil Judge, Shikarpur; challan under Section 406, 408 and 409 P.P.C was submitted in the Court of Special Judge, Anticorruption Larkana, while challan under Section 9 (c) read with Section 15 of the Control of Narcotic Substances Act, 1997, was submitted in the Court of Special Judge (CNS), Shikarpur. Learned IV-Civil Judge, Shikarpur, vide his judgment dated 13.12.2013, acquitted the appellant of the charge of theft that no convincing evidence was brought on record to connect the appellant in the crime. Likewise, learned Special Judge, Anticorruption Larkana, vide his judgment dated 22.5.2004, acquitted the present appellant of the charge of misappropriation, therefore, under these circumstances learned counsel for the appellant was of the view that the appellant is victim of not double but trouble jeopardy. The trial against him in this case is in violation of Section 403 Cr.P.C as well as under Article 13 (a) of the Constitution of Islamic Republic of Pakistan, 1973, which shows that no person shall be prosecuted or punished for the same offence more than once. In support of his arguments he has relied upon case of Muhammad Jahangir Badar Vs. Chairman NAB and others (2004 SCMR 1632), and Muhammad Ashraf and others Vs. The State (1995 SCMR 626). Per learned counsel there is absolutely no direct evidence available against the appellant for connecting him in this offence. Besides, according to him no charge of misappropriation or theft have been proved; no evidence on record to show to whom the present appellant sold the charas and through whom it was trafficking, but the learned trial Court while passing impugned judgment did not consider all these aspects of the case, and convicted the appellant in haste manner, therefore, the impugned judgment is liable to be set-aside.
8. Conversely, learned A.P.G. has supported the impugned judgment by arguing that the appellant was custodian of “Malkhana”, who after misappropriation of charas sold out the same to the persons involved in drug trafficking in order to gain the money.
9. We have considered the arguments as advanced by the learned counsel for the parties and perused the record.
10. In the present case the F.I.R placed on record at Ex.19-A, bearing crime No.193/1999 of P.S New Foujdari, Shikarpur, registered under Sections 380, 381, 406, 408 and 409 P.P.C; and Section 9 (c), R/W Section 15 of Control of Narcotic Substances Act, 1997, only indicates that contraband charas was allegedly kept in “Malkhana”, of which the appellant was Incharge and the property was misappropriated and substituted by a substance like soap, however, it is silent on the point of recovery of any narcotic substances from the possession or on pointation of the appellant. Admittedly, when the narcotics were not recovered at-all from the possession of appellant, then the same could not have been sent for chemical examination or analysis. It would not be out of place to thrash out the provisions of Section 9 of the Control of Narcotic Substances Act, 1997, which reads as under:
“9. Punishment for contravention of sections 6, 7 and 8. Whoever contravenes the provisions of sections 6, 7 and 8 shall be punishable with -----
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug, psychotropic substance or controller substance exceeds the limits specified in clause (b):
11. From plain reading of the above mentioned Section it is clear that it is a punitive clause that comes into play only when contravention of Sections 6, 7 and 8 of the Control of Narcotic Substances Act, 1997, is made by anyone. Thus, a person who is found in possession of narcotic substances or indulge in import or export of narcotic substances or is found involved in trafficking or financing the trafficking of substances prohibited under this Act could have reprimanded or dictates of Section 9 of the Act. In the instant case non recovery of narcotic substances from the possession or on the pointation of the appellant counter act the provisions of Section 6 of the Control of Narcotic Substances Act, 1997. It is not the case of the prosecution that appellant was found importing or exporting the contraband narcotic, so the provisions of Section 7 of the Control of Narcotic Substances Act, 1997, are not contravened in any manner. Even otherwise the prosecution has not been able to adduce any credible evidence regarding involvement of the appellant in trafficking of the narcotic substances. As per version advanced by the prosecution in F.I.R the appellant was Incharge of the Court “Malkhana”, wherefrom he allegedly committed misappropriation and larceny of the contraband charas for monetary gains. We have been informed that on the basis of instant F.I.R the appellant has been tried individually by two Courts of law, i.e. Court of Special Judge, Anticorruption Larkana, on the charges of misappropriation of the case property, stolen from the “Malhana” of the Sessions Court in Special Case No. 146/2000, re; St. Vs. Abdullah Bhutto and others, registered under Sections 406, 408, 409 P.P.C, bearing F.I.R No.193/1999 of P.S New Foujdari, Shikarpur; and Court of IV-Civil Judge and Judicial Magistrate, Shikarpur, in criminal case No.120/2001 re; St. Vs. Abdullah Bhutto and others, registered under Sections 380, 381 P.P.C, arisen out of the same crime on the charges of theft. But the record shows that the appellant has been acquitted of the charges of misappropriation and theft by both the learned trial Courts, vide Judgment dated 22.5.2004, and Judgment dated 13.12.2003, respectively. The appeal regarding acquittal of the appellant by both these trial Courts has not been preferred and as such both the judgments have attained finality. Learned A.P.G. appearing on behalf of the State has also acknowledged it. However, it is argued by learned A.P.G, that the appellant committed theft and misappropriated contraband charas from the “Malkhana” and then allegedly kept the same in his possession and thereafter committed the offence of trafficking as such Section 9 (c) of Control of Narcotic Substances Act, 1997 would be applicable. In our view, 9 (c) can only be put into operation when a person is arrested with the narcotic in his possession. In this case no recovery has been made and the only charge against the appellant is that he alongwith other accused may have misappropriate the narcotic. It may be mentioned here that, other accused, who faced the trial have been acquitted.
12. We have noted that, the primary charges against appellant were of misappropriation and theft, which the prosecution has failed to prove before the competent legal forums, which subsequently attained finality, therefore, in view of Article 19 of the Qanun-e-Shahadat Order, 1984, the case of prosecution cannot succeed on the same set of evidence, merely for the reason that the act of possessing and trafficking the contraband charas. Thus the different and subsequent offences committed in same transaction of events cannot be proved unless the first awful act has been proved. In the present case, when the two trial Courts trying the appellant on the charges of misappropriation and theft have not relied upon the testimony of the prosecution witnesses with regard to theft and misappropriation and have given verdict of acquittal, then the same set of evidence cannot be relied upon for awarding conviction upon the accused, merely for the reason that under Section 29 of the Control of Narcotic Substances Act, 1997, the accused has to prove his innocence. Section 29 of the Control of Narcotic Substances Act, 1997, has been interpreted by the Hon’ble Supreme Court of Pakistan in case of Muhammad Noor and others Vs. the State (2010 SCMR 927), in the following terms:
“It only says that once the prosecution established recovery beyond shadow of doubt it is then that the burden is shifted. Section 29 of the Control of Narcotic Substances Act, 1997, does not absolve the prosecution of its primary duty to prove its case beyond doubt.”
13. Thus, it is not required to be repeated that it is the primary obligation of the prosecution to prove its case beyond reasonable doubt and its burden is not shifted under the presumption contained in Section 29 of the Act, unless the prosecution has established recovery of the contraband narcotics beyond shadow of doubt. It is only then that the burden is shifted. Therefore, Section 29 of the Control of Narcotic Substances Act, 1997, does not absolve the prosecution of its primary duty to prove the case beyond doubt.
14. We have noted that, the appellant has already faced the trial of case of alleged misappropriation of case property and theft in two different Courts, viz. Special Judge, Anticorruption Larkana, and IV-Civil Judge and Judicial Magistrate, Shikarpur, on the same set of evidence and offences, and in both the cases the appellant has been acquitted, therefore, it appears that the trial against him in this case, is in violation of Section 403 Cr.P.C. For the sake of convenience it would be appropriate to reproduce the said Section, which reads as under:
“ 403. Persons once convicted or acquitted not to be tried for the same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the once made against him might have been made under section 36, or for which he might have been convicted under section 237.”
15. We have also gone through Article 13 (a) of the Constitution of Islamic Republic of Pakistan, 1973, which provides protection against double punishment (double jeopardy). For the sake of convenience it would be appropriate to reproduce Article 13 (a) of the Constitution of Islamic Republic of Pakistan, 1973; which reads as under:-
“13 (a) No person shall be prosecuted or punished for the same offence more than once; ”
16. As observed above, the appellant has already been acquitted by the two different Courts of the charges of theft and misappropriation in the same crime, therefore, the rule that no one shall be vexed twice for the same offence is fully applicable in the present scenario of the case.
17. We have also gone through Section 26 of the General Clauses Act, which reads as under:
“26. Provision as to offences punishable under two or more enactments. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for same offence.”
18. Admittedly, the present appellant was neither seen selling, offering for sale or transporting the charas nor any incriminating article has been recovered from his possession. Admittedly, there is no direct evidence against appellant connecting him with the commission of this offence, therefore, in our view Sections 9 (c) and 14 or 15 of the Control of Narcotic Substances Act, 1997, have been misapplied and the ingredients of these Sections did not stand attract to the facts of this case.
19. We have perused the evidence on record and considered the same. The entire case of prosecution hinges upon circumstantial evidence. It is well settled that in such matters each circumstance should be linked with the other. The fundamental principle of universal application in the cases depending on circumstantial evidence is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. In cases where more than one possible interpretation of the circumstantial evidence can be made, the interpretation favorable to the accused must be adopted unless there is some strong reason not to adopt such interpretation; therefore, the Court has to examine the probabilities in the light of circumstances of each. Lack of direct evidence, connecting the accused with the commission of offence gives rise to reasonable doubt resulting in acquittal of accused, being blue-eyed child of law.
20. The upshot of the above discussion is that there being no satisfactory basis for upholding the conviction and sentence of the appellant. The appeal is allowed; conviction and sentence of the appellant is set-aside, and he is acquitted of the charge. He is present on bail, his bail bond stands cancelled and surety is discharged.
21. Above are the reasons for our short Order dated 12.11.2014.