' SYED MAHMOOD ALAM RIZVI, J.--- This criminal acquittal appeal has been filed to assail the order of learned Special Judge, (C.N.S.), Karachi in Special Case No,418 of 2004 (Old Special. Case No,995 of 2001) (The State v. Mansoorun Nabi and others) arising out of Crime No,6 of 2000 under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereafter aferred to as "the Act, 1997") lodged at Police Station Customs, Karachi, whereby the learned Court acquitted all the five accused persons vide judgment, dated 26-11-2004.
2. Brief facts of the case necessary for the disposal of this criminal acquittal appeal are that on 18- 10-2000 one container containing Spices, Rice and Safari Suits under two bills of export destine for Mombassa, Kenya was being exported by Messrs DE-Syndicate Trading Company, Karachi to Messrs Ways and Means Investment, Narobi Kenya which was duly examined and further sniffed by the special dogs and after sniffing process the complainant returned back to Directorate D.E.C./Headquarter. In the mid of the night the complainant received information that some suspicious activity had been observed around the above-mentioned container, as a result, the raiding party secured the said container from Badruddin Yard and brought the same to the D.E.C./Headquarter N.M.B. Wharf under escort in the presence of Mashirs and guard who was posted at the yard. In the morning the exporters, clearing agents and shippers (accused persons) were called and all reached at the office of complainant who produced all the export documents and in presence of respondents and the witnesses the container was accordingly examined.
Nothing was recovered from the first, consignment but from the second consignment which contained cotton garments (Safari suits), 126 polythene bags stuffed with white heroin powder weighing 27 kilograms were recovered and the same was seized along with stuffed goods and export documents as well as the container. The Mashirnama was prepared in the presence of the respondents at the spot and notice under section 171 of the Customs Act, 1969 was accordingly served upon them and samples of heroin were obtained and sealed. Durihg the preliminary investigation it was revealed that one Ali Khan alias Majid of N.-W.F.P. Was the mastermind of the entire operation of the smuggling of heroin, as a result, the F.I.R. Was registered and after investigation challan was submitted and the accused were sent for trial.
3. The case proceeded before the trial Court, six prosecution witnesses were examined and the statements of accused were recorded under section 342, Cr.P.C. The accused claimed to be innocent and neither of them have deposed on oath or produced any evidence in their defence, whereafter, the learned trial Court held that the case was doubtful and the prosecution had failed to prove the case against the respondents, hence all were acquitted.
4. Learned counsel for the appellant has contended that trial Court has misread the evidence on record and as such has come to the wrong conclusion. He has further contended that complainant and the Mashirs had fully supported the case of prosecution and the factum of recovery of 27 kilograms of heroin powder from the consignment of second shipment had been proved but the learned trial Court disbelieved the evidence of the prosecution. He has contended that learned trial Court has failed to appreciate that consignment was already examined on 18-10-2000 and after examination some persons were available near the container which was lying in Badruddin Yard and thereafter, the same was properly escorted and shifted to D.E.C./Headquarter and had remained under the supervision of guard and it was opened in presence of the respondents/ accused, that the chemical report was positive and the respondents/ accused did not deny the export of goods or the examination of the consignment in question and recovery of 27 kilograms heroin powder in presence of Mashirs. The trial Court had also not appreciated the fact that alleged heroin recovered from the consignment was being exported in the container by the respondents in connivance with each other, hence, the respondents were liable to be punished under section 9(c) of the Act, and impugned judgment should be set aside.
5. Conversely, learned counsel for respondent Muhammad Yahya ikaria, who was shipping agent, seriously disputed the above arguments advanced by learned counsel for appellant and contended that no iota of evidence is available against his client. The respondents/accused Muhammad Yahya Zikaria, Muhammad Ali and Syed Mukaram Ali are shipping and clearing agents, that they had nothing to do with consignment as no witness stated in Court that at the time of packing or manufacturing any clearing agent or shipping agent was present nor any witness deposed in Court that they had bought the contraband from anywhere and supplied the same to main accused and in fact the clearing agent with bona fides, produced export documents and the container before the Examining. Officer and for sniffing process and nothing objectionable was found in the container. Learned counsel for appellant could not controvert the above position as admittedly none of the witnesses stated anything against the above three accused i,e, clearing agent and shipping agent.
6. The respondent No,1 Syed Mansoorun Nabi died on 28-11-2007 hence proceedings against him were abated.
7. Learned counsel for the respondents Nos.2 to 4 has contended that it is a case of mala fides and no case is made out against his client and a false case has been registered against the exporter.
He has further contended that admittedly on 18-10-2000 the impugned container was checked by the dog sniffing cell and nothing was recovered at that time and the said report endorsed by the D.E.C./Headquarter on the reverse of the shipping bill through DEC No,7796 and 7797 vide dated 18- 10-2000, respectively, and thereafter, examination of the consignments was conducted and the report of examination agency was endorsed by the Processing Officer and the Supervising Officer on the reverse of the shipping bills and the same document has been exhibited by the trial Court as Exhs.P.18 and P.19 and as per report. The subject shipment containing Safari Suits has been allowed for export on 18-10-2000 while other consignment containing spices and rice as per shipping bill Exh.P.19 was objected by Customs Officer on the same day, and it was kept pending for clearance which is also supported by Exhs.P.18 and P.19. He further contended that after loading the subject consignment into the impugned container the same was entered into the Badruddin Yard on 10-10-2000 through Exh.P.20 and the impugned container was under the supervision of Supervising Officer of Badruddin Yard from 10-10-2000 to 18-10-2000, which has been corroborated by the P.W.2 namely Ahmed Khan, Supervising Officer of Badruddin Yard. He further contended that in the F.I.R. It is claimed that container was brought from the Badruddin Yard and kept by the D.E.C./Headquarter for 12 hours and in presence of respondents/accused persons the same was opened, but strangely, in the Mashirnama no presence of any of the respondents/ accused persons has been shown which clearly reflects that prosecution case is bogus. He also contended that even in the F.I.R. It is mentioned that after preliminary investigation one Ali Khan alias Majid of N.-W.F.P. Was mastermind of the above offence and has been placed in column No,2 of the challan.
8. He further contended that the prosecution alleged that after clearance and examining of the impugned container some persons in the night between 17th/18th had placed the contraband in the container and such persons were seen, hence on the above information a raid was conducted and container was seized but none of the witnesses in Court supported the above allegation as admittedly the container was in possession of customs officials and guards were posted and no witness deposed that they had seen any person near the impugned container, as such, the whole case of prosecution has become doubtful. On the other hand, none of the customs officials was made as accused which shows that whole investigation is partial, biased, false and bogus as at the time of physical examination and sniffing process no contraband was found and the prosecution case was rightly declared doubtful by the learned trial Court. It is further contended that prosecution has also failed to prove that impugned container was under original seal when it was said to have been opened in the office of D.E.C./Headquarter.
9. To convict a person on capital charge, evidence should be of a very high quality and good standard as unfortunately is not available in this case. Standard and assessing evidence in appeal and acquittal are quite different from those laid down in appeal against conviction. There is a marked difference between appraisal of evidence in an appeal of convict and in the appeal of acquittal. In the appeal against conviction the manner procedure of appraisal of evidence is laid down strictly and in an appeal against acquittal, the same rigid method of appraisement has not to be applied, as there is already findings of acquittal given by the learned trial Court after proper analysis of record. In the acquittal appeal interference is made only when it appears that there has been gross misreading of evidence which amounts to miscarriage of justice. The ordinary scope of appeal against acquittal of respondents is considerable norms and limited as held in Muhammad Usman and 2 others v. The State 1992 SCMR 498 and State v. Muhammad Sharif and others 1995 SCM R 635.
10. In the above case, the very foundation of the prosecution case has not been proved as none of the witnesses stated in Court that he had seen anybody in the Badruddin Yard near the container on the aforementioned night, hence the presumption that the accused persons inducted the contraband in the container at the above mentioned yard has not been proved and further it is an admitted fact that in the Mashirnama the presence of any respondents/accused has not transpired, while in the F.I.R. The facts are otherwise, as the names of the respondents/accused have been mentioned and they were shown present at the time of opening of the containers and the contraband was recovered in their presence. Learned trial Court rightly rejected the evidence of the officials as they have not corroborated their own case and non-inducting of the customs officials in the above case clearly shows that investigations were partial and biased. It is also proved from the evidence of the prosecution witnesses that at least for 12 hours the said container was in possession of the complainant/agency after shifting it from Badruddin Yard and no justification has been made by the complainant that why container was shifted from Badruddin Yard and not examined in the said yard. It was rightly held by the learned trial Judge that prosecution has failed to prove its case and has rightly acquitted the respondents by extending the benefit of doubt.
11. The outcome of the above discussion is that acquittal of respondents does not suffer from any illegality so as to call for our interference in the impugned judgment. Learned trial Court has advanced valid and cogent reasons in passing findings of the acquittal of the respondents and we see no reason to disturb the same and the learned trial Court was justified in acquitting the respondents by extending them benefit of doubt. The impugned judgment is perfectly correct being on proper appreciation of evidence and call for no interference.
12. The appeal is dismissed and the impugned judgment is maintained accordingly.