ABDUL MOBEEN LAKHO, J.---Respondents/accused Shah Muhammad alias Shahan, Abdul Majeed and Manzoor Ali were tried by learned Special Judge (CNS), Khairpur in Crime No.03 of 2005, registered at Police Station ANF Sukkur, for offences under sections 6, 9(C), 8-B, 12, 13, 19 and 37 CNS Act, 1997 and by judgment dated 05.10.2006, the respondents/accused were acquitted of the charge. Hence, instant Criminal Acquittal Appeal is filed by the appellant/ANF.
2. Brief facts of the case are that on 03.06.2005, complainant Sub-Inspector Sher Ali Sheerazi received information through special informer that Abdul Majeed Chandio and Manzoor Chandio are doing business of narcotic substance at former new Insaf Truck Driver Hotel presently named as New Shangrilla Hotel situated on National Highway near Ranipur and they are involved in supplying Charas in their vehicles at various places and that at the relevant time a huge quantity of charas was available at their den. On receiving such information, he along with, ASI Aftab Ahmed, ASI Humayoon Ahmed, PC Abdul Waheed, PC Abdul Rasheed, PC Sajid Ali, PC Ashique Ali, Ihsanullah and driver Muhammad Ali Shah so also A.N.F staff of Hyderabad including Inspector Naeemuddin, ASI Fareed Abassi, ASI Jawad Altaf, PC Abdul Hameed and driver Yaqoob along with informer proceeded towards pointed place and reached there at about 8.30 am where they saw two persons sitting in two separate vehicles. The informer pointed out that they were Abdul Majeed and Manzoor Chandio. They were also identified by ASI Aftab Ahmed. As soon as the Anti-Narcotic force reached at the hotel the said two persons leaving the vehicles ran away towards back side of the Hotel and made their escape good. A person standing beside white Toyota Corolla Car bearing No. F-6549, was caught who was holding key in his hand. ASI Aftab Ahmed and ASI Humayoon Ahmed were cited as witnesses of search. The apprehended person disclosed his name as Shah Muhammad alias Shahan. On his personal search two cheques each of Rs.5000/- each, cash Rs.450/- as well as two telephone bills in respect telephone No. 630363 were secured from his pocket. He further disclosed that he was holding key of Car No. F-6549 which belonged to Abdul Majeed Chandio and claimed to be servant of said Abdul Majeed Chandio. ASI Aftab Ahmed had also seen Abdul Majeed Chandio running away from the said Car. In presence of witnesses search of said Car was conducted and two cheque books in respect of Account No. 4778-5 MCB Gambat branch and Account No. 2365.5 MCB Gambat branch were recovered from dash board of the Car. On search of dickey 248 packets of charas each weighing one kilogram in Aluminum foil Packing covered with cloth were recovered. The other Car bearing No.W-2490 standing there was searched and two electric bills in the name of Abdul Majeed and Manzoor and NIC bearing No. 440-90-160259 in the name of Manzoor Chandio were secured. On opening the dickey 300 packets of charas with Aluminum foil pecking bearing Grain Caf mark were found whereas the charas was bearing No.555. ASI Aftab Ahmed disclosed that he had seen Manzoor Chandio running away from the said Car. 10 grams from each slab was separated and sealed separately for chemical examination. Accused Shah Muhammad was formally arrested and such memomo of arrest was prepared in presence of above witnesses.
Accused Shah Muhammad further disclosed that a room over and above the shops adjacent to the hotel was being used by Abdul Majeed as office and led the A.N.F party to the said office room from where five bags of polythine each containing 40 packets of charas in aluminum foil packing bearing mark of Grain caf were found.
Each slab was found to be one kilogram. The total weight of charas was 200 Kilograms. From each slab 10 grams were separated for chemical examination and was sealed in the khaki paper envelope. A7 nun rifle bearing No.5924, NIC Card of Abdul Majeed Chandio, Pass Book of Account 1563-6- Habib Bank branch and Account No. 4778 MCB Gambat and photographs of Abdul Majeed Chandio were also recovered. All these articles were seized by A.N.F. and such memo of recovery was prepared in presence of witnesses. Accused Shah Muhammad and property were brought to Sukkur where this case was registered at Police Station A.N.F Sukkur.
3. After usual investigation challan was submitted showing accused Shah Muhammad in custody while accused Abdul Majeed and Manzoor Ali as absconders. Thereafter both the absconding accused surrendered themselves before the trial court where they were admitted to interim bail on 12.07.2005 an they joined the trial.
4. Charge was framed against the accused by the trial court at Ex.2. Accused pleaded not guilty and claimed to be tried. The prosecution examined 02 witnesses i.e. complainant SIP Sher Ali Sheerazi at Ex.6 and ASI Aftab Ahmed. Thereafter prosecution side was closed.
5. Statements of the accused were recorded under section 342, Cr.P.C. at Exs.9 to 11, in which they claimed false implication in this case. Accused Abdul Majeed further stated that co-accused Shah Muhammad is his munchi while accused Manzoor Ali is his brother. They have been falsely implicated in this case at the instance of one Sakhi Qabool Muhammad with whom he had enmity over landed property. Neither the cars nor the hotel from where allegedly the narcotics were recovered belonged to him. Accused declined to examine themselves on oath in disproof of prosecution allegations. Accused have also not led evidence in defence.
6. Learned trial court after hearing the learned counsel for the parties and assessment of entire evidence acquitted the accused for the following reasons:- "In the cases of Narcotics on the one hand society is under threat of use of drugs harmful to the human health and on the other hand the accused involved in the cases are under the threat of capital punishment. Evidence in such circumstances has to be very carefully examined and where reasonable doubt is created, in my humble view the benefit of same should be given to the accused. In this matter the Anti Narcotic Force had advance information about commission of offence and reached at the place of occurrence at about 8.30 a.m. where Shahan was arrested whereas Abdul Majeed and Manzoor are alleged to have made their escape good. It is absolutely impossible that in presence of 14 trained and armed officers of Narcotic force two persons will make their escape good in the open fields, where, there was no place for them to hide and dodge the force. Apart from that the accused has produced copy of diary of a civil suit pending in the court of Civil Judge and Judicial Magistrate Gambat where the accused had appeared for swearing affidavit. Even if this diary would not have been produced yet the presence of accused Abdul Majeed and Manzoor at the place of occurrence is extremely unbelievable. As far as connection of accused Abdul Majeeed or any other accused with the premises or the Car is concerned the prose cution witnesses were suggested that accused had nothing to do either with the premises or with the Cars, although this suggestion was denied by the prosecution witnesses but the accused have proved that the Hotel belonged to Khair Muhammad and case was filed against him in the court of 1st.
Civil Judge Gambat, the plaint of which was rejected by order dated 10.2.2005. The prosecution had summoned the witnesses from Revenue, Wapda and Telephone department to prove connection of accused with the premises but subsequently avoided to examine them thus they have failed to prove the connection of accused with the premises. It is presumed that had these witnesses appeared in the evidence they would not have supported the case of prosecution. The conduct of prosecution also seems to be not in accordance with law nor care was taken to obtain warrant of search for the vehicles as well as for the premises. Narcotic force had reached at the place of occurrence at about 8.30 a.m. when the court was open at a distance of about 2/3 furlongs and before embarking on the search of vehicles and the premises they could have easily obtained search warrants from the Court. The violation of mandatory provision of law has vitiated the trial. Although in the case of Taj Walli and others v. State SBLR 2005 Sindh Page 230 it was observed that noncompliance of the section 21 of the C.N.S Act will not by itself vitiate the trial but the same was viewed seriously as the offences involved capital punishment. It is why the relevant authorities were directed to comply with the provisions of law through D. G A.N.F inspite-of that the A.N.F did not bother to comply with the provisions of law. After this Judgment of the Honourable High Court there is no excuse for the agencies to violate the provisions of section 21 of CNS Act except in exceptional cases when it is not possible to obtain the warrant. In the present case there was ample time for the agency to obtain the required but warrant from the nearest Court but no effort was made to follow the law.
Thus the trial of the accused can be declared to have vitiated on account of violation of the section 21 of CNS Act. Apart from this it is noted that the samples were sent to local laboratory for chemical examination on 14.6.2005 whereas the case was registered on 3.6.2005. This delay of 11 days in dispatching the property is absolutely not explained. Admittedly the laboratory is situated at the distance of only half an hour:, driving distance. The safe custody of samples during all this period is therefore also seriously viewed. In this respect reliance is place on the case of Javed Akhter v. State PLJ 1997 Cr. C. Lahore Page 1310. As per prosecution evidence a raid was conducted at about 8.30 am but the FIR was registered at 1800 hours after 10 hours, although Some explanation is given for delay that 700 samples were separated which took time therefore the FIR was registered with late. This explanation seems to be explanation for the sake of explanation. If we see this explanation from another angle i.e. the police had prepared 700 samples in 10 hours which me means 600 minutes. Meaning thereby that one sample was separated and sealed in the time of less than one minute. It is impossible therefore the delay seems to be on some other account and preparation of samples in this manner is also extremely doubtful.
As far as case of Shanan alias Shah Muhammad is concerned the prosecution has not collected any evidence connecting the accused Shahan with the possession of Narcotic substance alleged to have been recovered form two Cars and from office room. He has simply stated to have been found standing near the Car with key of one of the car in his hand to establish charge against him it was incumbent upon the prosecution to prove that he was owner or possessor of such narcotic substance. The whole prosecution case is the set on the line that the narcotic substance recovered from the Cars and the office premises belonged to Abdul Majeed and Manzoor therefore the implication of accused Shahan alias Shah Muhammad is based on no evidence. As per prosecution case Shahan declared himself to be servant of Abdul Majeed and did not claim any connection with the alleged narcotic substance thus there is no evidence connecting accused Shahan with the contraband stuff.
The I.O. did not verify the ownership of Car. Infact a report in daily diary dated 3.6.2005 was lodged at P.S. Faizganj by one Muhammad Sajjan claiming that I.O. of this case Mr. Sher Ali Sherazi had hired the said two cars from Muhammad Sajjan but the same were not returned on due date. This report was incorporated in the diary at about 0610 hours a little before the alleged incident. Copy of the diary has been produced by the accused with their statements. This further renders the involvement of the cars in transportation of contraband stuff doubtful. The counter of the Cars had applied for restoration off Cars which application is pending decision, now since the case has become ripe therefore the final order for disposal of the cars will be passed after the expiry of the appeal period.
From the above discussion 1 have come to the conclusion that the prosecution story of recovering contraband stuff from the Cars and the office room connecting the accused with same is not confidence inspiring and highly doubtful. Points Nos.1 to 4 are therefore answered as not proved."
7. We have heard Mr. Mohsin Ali, learned Special Prosecutor ANF for the appellant.
8. Learned Special Prosecutor ANF for the appellant argued that the Prosecution has established its case against the appellant/accused a huge quantity of narcotics have been recovered from their possession which cannot be foisted. He has further contended that the trial court did not appreciate the evidence according to settled principles of law and acquitted the accused without any legal justification.
9. We have carefully perused the evidence recorded by the trial court.
10. Learned trial Court has rightly observed that prosecution case was doubtful for the reasons that two persons made good scape from the place from where respondent / accused was arrested. ANF officials were trained but we are unable to understand that as to how two persons ran away before their eyes. Prosecution had also failed to prove the safe custody of the narcotic substance and safe transmission to the Chemical Examiner. Trial Court rightly pointed out infirmities in the case of prosecution, judgment passed by the trial Court is neither arbitrary nor capricious. When an accused person is acquitted from the charge by a Court of competent jurisdiction, double presumption of innocence is attached to its order with which this Court is always slow to interfere.
Reliance is placed on the case of The State and others v. Abdul Khaliq and others (PLD 2011 Supreme Court 554), in which following guiding principles have been laid down for deciding an acquittal appeal in a criminal case: "16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every matrial piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against acquittal is not the same, as against cases involving a conviction. In this behalf; it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are: Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul-Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ 926), Mohammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Farhat Azeem v. Asmat Ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175), Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v.
Muhammad Ramzan and another (1995 SCMR 855), The State. v. Abdul Ghaffar (1996 SCMR 678) and Mst.
Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).
From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to Me cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in, gross violation of law, suffering from the errors of grave misreading or non-reading-of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings, are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad ljaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals."
11. In the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), Hon'ble Supreme Court has as under: "2. According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses' presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however, given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence us being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed.
12. There were several circumstances in the case, which created doubt in the case of prosecution. Trial Court has rightly disbelieved the prosecution evidence. Scope of acquittal appeal is considerably narrow and presumption of double innocence is attached to the order of acquittal.
13. This Criminal Acquittal Appeal is without merit and the same is dismissed. Thee are the reasons of our short Net announced on 04.09.2019