' Being aggrieved by and dissatisfied with the judgment dated 10-11-1986, passed by Special Judge (Customs and Taxation) Karachi, in Case No,140 of 1986 (State v. Muhammad Ashraf Rana and others), acquitting respondents Muhammad Rafi Munir and Khawaja Naseem Hussain, by allowing their applications under section 265-K, Cr.P.C. The State has filed this appeal under section 185-F of the Customs Act, 1969. During the pendency of the appeal respondent Khawaja Naseem Hussain died and consequently the appeal against him has abated.
2. On 29-5-1986, the Pakistan Coast Guards acting on credible information about the smuggling of narcotics out of Pakistan raided an abandoned area near Deh Daulatpur, Taluka Shah Bunder, District Thatta, and found a heap of contraband Charas at that spot. On seeing the raiding party two persons sitting in a car and one person sitting in a jeep slipped away. The raiding party followed the tracks and after covering a distance of about 1/2 mile noticed three bullock carts. Two of the persons who were driving the bullock carts were apprehended. The bullock carts were loaded with contraband Charas and were seized. The raiding party then proceeded towards seashore where heap of contraband Charas was noticed. Two persons, namely, Ali Asghar and Umar were apprehended there. The raiding party continued to march towards seashore where some more persons were seen, who tried to escape, but four out of them, namely Muhammad Ashraf Rana, Nicolas papa, Ahmed Ravi and Zakaria were caught. Accordingly a case being Crime No, 3212 of 1986 was registered by the Pakistan Coast Guards on 29-5-1986 at 10 p.m. The investigation revealed that smuggling of narcotics was being carried out on international level by the accused in connivance and with the support of above respondents. While the case was under investigation an incomplete charge-sheet was submitted against the accused in which the above respondent was shown as absconder. On 13-9-1986 a final report was submitted in the Court of Special Judge (Customs and Taxation) Karachi. Muhammad Rafi Munir respondent No,1, apprehending his arrest left the country. The case did not proceed. Muhammad Rafi Munir, respondent No,1 who was fugitive from justice then made an application for his acquittal under section 265-K, Cr.P.C. In absentia. Khawaja Naseem Hussain, respondent No,2 (since dead) also moved a similar application. Both these applications were heard by learned Special Judge who by a consolidated order dated 10-11-1986, allowed the prayers of both the respondents by acquitting them under section 265-K, Cr.P.C. It is in these circumstances that the present appeal has been filed.
3. I have heard Mr. Qazi Faez Issa, learned counsel for State and Mr. Sohail Muzaffar, learned counsel for respondent No,1. The latter has raised a preliminary objection about the competency of this appeal filed by Mr. Wajihuddin Ahmed, Advocate (now Mr. Justice Wajihuddin Ahmed). Section 185-F of the Customs Act, 1969, deals with the filing of appeal or revision to Special Appellate Court in the following words:- "Appeal to Special Appellate Court.--- (1) Any person, including the Federal Government aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898, (Act V of 1898), may subject to the provisions of Chapters XXXI and XXXII of the Code, within sixty days from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such appeal or revision, such Court shall exercise all the powers of a High Court under the said Code.
(2) Except as otherwise provided in subsection (1), the provisions of the Limitation Act, 1908 (IX of 1908), shall apply to an appeal or a revision preferred under subsection (1)."
4. A bare perusal of the above section shows that the Federal Government alone is competent to file appeals against acquittals and this power is not available to the Provincial Government under section 417 of the Code of Criminal Procedure, 1898. The case reported as State v. Abdul Qayyum and 3 others PLD 1980 Kar. 465 is self-explanatory. The title of this appeal, however, makes it clear that it was filed by the Federal Government. Mr. Wajihuddin Ahmed, who was working as Advocate- General, Sindh, has not filed this app,a1 on behalf of Government of Sindh, but he has challenged the impugned judgment as an advocate of the Federal Government. This question was examined in the case of The State v. M. Ashraf reported in 1986 P Cr. L J 137, wherein it was observed:-- "It may be mentioned that under the Rules of Business of the Federal Government the Law Division looks after legal proceedings and litigation concerning the Federal Government. The Law Division was, therefore, competent to nominate Mr. Abbasi to file an appeal on behalf of the Federal Government. It is also to be noticed that unlike the Pakistan Criminal Law Amendment Act, 1958, section 185-F does not specify the person through whom alone the Federal Government can exercise its right of appeal. Thus, it can nominate any member of the Bar for this purpose. For this reason the two unreported cases cited by the learned counsel for the respondent are distinguishable. The unreported cases are State v. Zar Badshah Criminal Appeal No,654 of 1982 and State v. Munawar-ud-Din, etc. Criminal Appeal No,473 of 1978. In these cases appeals were filed on behalf of the Federal Government by a person other than a Public Prosecutor whereas under section 10(2) of the Pakistan Criminal Law Amendment Act, 1958, the right of the appeal could he exercised by the Government only through a Public Prosecutor.
' On this ground alone a learned Single Judge dismissed the appeals. However, that may be, as section 185-F (ibid), does not create any such restriction the appeal against the respondent could be filed by any Advocate appointed by the Federal Government for the purpose."
The appeal was thus filed properly through a proper person.
5. I now address myself to the contentions raised on behalf of parties on merits. Mr. Qazi Faez Issa, learned counsel for the appellant, who has argued with great ability, has contended that respondent Muhammad Rafi Munir who was a fugitive from justice was not entitled to a hearing in absentia. He has placed reliance upon the cases reported as Chan Shah v. The Crown PLD 1956 FC 43, Gul Hasan and another v. The State PLD 1969 SC 89 and Ilayat Bakhsh and others v. The State PLD 1981 SC 265, in support of his contention. In the last cited authority the Supreme Court observed in clear terms that:-- "The principles laid down in the cases of Chan Shah and Gul Hassan do not in any way merit review. Rather, some of them need to be reiterated and reaffirmed: The Court would not act in aid of a person who is fugitive from justice; the inherent power cannot be invoked in his favor because it is essential condition of the administration of justice that the person concerned should submit to the due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, would accord opportunity to him through some adjournments in the expectation that he might be induced to surrender; this all being in accord with the basic principles governing administration of criminal justice, it is the duty of the person representing the accused, to secure so far as it is within his power, the appearance of the accused before the Court on the first day of the hearing and, thereafter, if so advised, to seek an order for bail or suspension of sentence, if it is an appeal by the convict. Apart from the foregoing principles laid down in the case of Chan Shah, these aspects were further elaborated in Gul Hassan's case; if a person is fugitive from justice and is in the state of ascendance, an appeal cannot be filed on his behalf on the basis of a power of attorney executed by him before his ascendance and the same would apply to a power of attorney executed during ascendance; that a fugitive in effect, in view of the principles laid down in the case of Chan Shah, is also a contemnor and further that he is not entitled to hearing; that even if it is a case of confirmation of death sentence under section 374, Cr.P.C. If the convict decamps, he thereby forfeits the right of audience and the High Court would, in such a situation, be competent to consider the case of confirmation of his death sentence and confirm the same even.In his absence, the confirmation of course will have to be on merits of the case; and this Court would not hesitate even after grant of leave to appeal on the application of such a person, to rescind the leave. It may be clarified here that in the case of Gul Hassan leave to appeal having been obtained on the basis of an incompetent petition for leave to appeal, it was thought adviseable to adopt the course of rescinding the leave granting order; applying the principles which are now being reiterated and reaffirmed, it would not be necessary in all the cases to adopt the same procedure, as the Court would be competent when such an occasion arises, to dismiss the appeal itself."
6. The reliance placed by learned Special Judge on an unreported judgment of this Court in Criminal Miscellaneous No,944 of 1981, which was distinguishable was erroneous in view of the above well-known judgments of the Supreme Court. The application made on behalf of respondent Muhammad Rafi IE Munir under section 265-K, Cr.P.C. Was thus liable to be dismissed on this score alone.
7. Section 265-K, Cr.P.C., whereunder an application for acquittal was made provides as follows:-- "Nothing in this chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence."
8. The words 'at any stage of the case' are clear. An acquittal under this section can be recorded even before charge is framed or any witness is examined. The amount of evidence which would enable a Court to record finding of this nature is so entirely dependent on circumstances of each case that no rule or direction is likely to be of any use. Certain guide-lines are, however, laid down in cases reported as Malik Muhammad Ibrahim v. The State and 4 others 1985 P Cr. L J 929 and State v. Mir Nahi Bux Khan Khoso and others 1986 P Cr. L J 1130. However, in the latter citation it was observed that recording of evidence before passing an order of acquittal under section 265-K, Cr.P.C. Although not a requirement of law, yet section 265-K, Cr.P.C. Cannot be pressed into service to stifle or throttle the case of the prosecution. Reliance may also be placed upon the cases reported as Raja Haq Nawaz v. Muhammad Afzal and others PLD 1967 SC 354, Alimuddin and another v. The State 1985 P Cr. L J 2711, The State v. Sardar Muhammad Zaman Saleem Khan Durrani 1986 P Cr. L J 1488 and Israr Ahmad v. The State 1987 P Cr. L J 943.
9. There is circumstantial evidence on record connecting Muhammad Rafi Munir with this crime who according to the case of the prosecution is one of the gang leaders involved in attempting to smuggle out 8,600 Kg. Of contraband Charas. According to the nature of the case it was not possible to disclose the names of all the culprits in F.I.R. The Qanun-e-Shahadat, 1984, does not insist upon a greater degree of certainty when the evidence is entirely circumstantial. It must be remembered that circumstantial evidence is more cogent, than the evidence of eye-witnesses. It is not difficult to produce false evidence of eye- witnesses. It is on the other hand extremely difficult to produce circumstantial evidence of a convincing character. In this connection reference may be had to the case of Shah Nawaz v. The State reported in 1968 P Cr. L J 1226, wherein following observations were made by Abdul Ghani Khan Khatak, J. (as he then was):-- "It is clearly established law that crimes which are committed at chosen time in secrecy cannot be proved by direct and positive evidence and the Court must act upon such indication as the facts and circumstances of the case present. The cumulative force of the facts though individually of no little significance, is that they cannot be reasonably explained in a manner other than the guilt of the appellant."
10. The judicial discretion of a Court is not to be guided solely by the concession or objection made by counsel for State. Such an approach is clearly erroneous and the Court should not surrender its judgment to that of a counsel appearing for the State.
11. There is satisfactory evidence on record connecting respondent No,1, with this crime. The houses owned by respondent No,2 (since dead) and his wife were allegedly used for harboring smugglers of international repute. The respondent No,1 was allegedly contacting on a particular Telephone No,3251967 prior to the present operation, which was confirmed by Gateway Telephone Exchange. It is also the case of the prosecution that Telephone No,18703192 in United Kingdom was contacted by Muhammad Ashraf Rana (Chief Organiser) from the residence No,530357 of respondent Muhammad Rafi Muneer, which has been confirmed as a distribution point of narcotics by Drugs Intelligence H.M. Customs and Excise Investigation Division London.
12. Besides the above circumstantial evidence, there is evidence of P.Ws. Martha Panayi Chira and Dawood Gangat connecting respondent No,1 with this crime. The extent to which these witnesses should he believed cannot be determined without affording an opportunity to the prosecution to adduce evidence. Again the evidence cannot be appreciated through a computerized formula or by mathematical calculation. At any rate the worth of evidence and the weight attached to each of the witnesses cannot be decided without examining such witnesses. The acquittal of respondent No,1 recorded by learned Special Judge was premature. The circumstances indicated above though individually are of little significance, but they have accumulative force.
13. Having regard to the above factual and legal position, I would accept the appeal, set aside the order of acquittal recorded against respondent Muhammad Rafi Munir by Special Judge (Customs and Taxation) Karachi on 10-11-1986. The case is remanded to the Special Judge (Customs and Taxation) Karachi, for proceeding against respondent No,1, along with co-accused, who shall also take necessary steps for the arrest of Muhammad Raft Munir.
14. It is needless to point out that the observations made above are tentative in nature and should not influence the mind of trial Court in any manner.