The STATE/ANTI NARCOTIC FORCE Versus IMRAN AHMED
KHADIM HUSSAIN TUNIO, J.--- Through captioned criminal acquittal appeal, the State/ANF has impugned judgment dated 07.03.2015 passed by the learned Special Judge-II (CNS), Karachi in Special Case No. 354 of 2013 (Re: The State v. Imran Ahmed Siddiqui and another) arising out of Crime No. 19/ 2013 registered at Police Station ANF-Clifton Karachi under section 6-9(C) read with sections 14/15 of CNS Act, 1997, whereby respondents / accused were acquitted of the charge while being extended benefit of doubt.
2. It is alleged that on 15.04.2013, complainant Sub-Inspector Ali Gul of Police Station ANF Clifton Karachi along with other ANF staff recovered 38 kilograms of heroin powder concealed within eight wooden tables lying in container No. HASU-4104843 at PICT Port Kemari, Bridge Area and as per shipping documents produced by clearing agent Firdous Ahmed of Messrs Uzair Agencies, Karachi the said consignment's clearing service was provided to the respondent Imran Ahmed who in connivance with Mohammad Asad had attempted to smuggle the same. The recovered contraband, shipping documents and broken seal were all brought at Police Station ANF Clifton Karachi where FIR under section 9(c) CNS Act on behalf of the State was lodged.
3. After completing the required formalities, formal charge was framed against the respondents/accused, wherein they denied prosecution allegations made against them and claimed to be tried. In order to prove the charge against the respondents/accused, prosecution examined in all 9 witnesses namely PW-1 Sub-Inspector Ali Gul, PW-2. PC Zeeshan Abbas Zaidi, PW-3 Firdous Ahmed, PW-4 Asif Latif Shaikh, PW-5 Minhaj Ahmed Shaikh, PW-6 Muhammad Sharif, PW-7 Jan Khan, PW-8 Imran Khan and PW-9 Investigating Officer Inspector Muhammad Muzzamil Ahmed who produced numerous documents through their evidence, duly exhibited. Statement of respondents/ accused were recorded under section 342, Cr.P.C. in which they have denied the allegations made against them in toto and pleaded their false implication. However, they have not examined themselves on oath under section 342(2), Cr.P.C., though DW-1 Nishat Rasool Khan was examined by the defence disprove the charge against them.
4. After hearing the learned counsel for the respective parties, learned trial Court acquitted the respondents/accused by extending them benefit of doubt, hence this acquittal appeal.
5. Learned Special Prosecutor ANF vehemently argued that the impugned judgment passed by the learned trial Court is not sustainable in the eyes of law; that the learned trial court while passing the impugned judgment has failed to appreciate the evidence adduced by the prosecution; that the heroin powder so recovered from the wooden tables which were concealed in the same by the respondents/ accused to export the same through container from Karachi to Belgium is proved through prosecution witnesses; that the prosecution witnesses supported the case of complainant and there is no contradiction in their evidence, however, the learned trial court while committing misreading and non-reading of the evidence has passed the judgment impugned; that the learned trial court has given undue weight to the minor discrepancies that arose in the evidence of the prosecution witnesses; that the learned trial Court has also not appreciated that a huge quantity of heroin powder had been recovered. He, therefore, prays that the impugned judgment may be set-aside and the respondents/accused may be convicted in accordance with law.
6. Conversely, learned counsel for the respondents/accused has supported the impugned judgment while arguing that the investigating officer has admitted in his evidence that there was no direct evidence against the respondents/accused; that the allegation against the respondents/accused is that the documents regarding export of the wooden tables were produced by the respondents/accused during the course of the investigation; that the respondent/ accused have disclosed the name of the absconding accused. Learned counsel for the respondents/accused, in support of his contentions, has cited case law reported as 1996 SCMR 1553 (Abdul Khaliq v. The State), 1999 PCr.LJ 830 (Muhammad Shafiq v. The State), 2002 SCMR 261 (Khadim Hussain v. Manzoor Hussain Shah and 3 others), 2002 SCMR 713 (Munawwar Shah v. Liaquat Hussain and others), 2008 MLD 1333 (Mir Muhammad v. The State), 2010 PCr.LJ 825 (Haji Inayat and another v. The State), 2019 SCMR 1227 (The State v. Imran Nazir and another) and 2020 SCMR 1049 (Noor Muhammad v. The State and another).
7. We have heard the learned Special Prosecutor ANF as well as learned counsel for the respondents/ accused and examined the material available on record.
8. Prosecution's allegations against the respondents are that they, through container No. HASU-4104843 at PICT Port Kemari, Bridge Area intended to smuggle 38 kilograms of heroin by hiding them under wooden tables to Belgium, but the said contraband was recovered after a raid. After prudently scanning the evidence of the prosecution witnesses, we have come to the conclusion that prosecution has miserably failed to establish its case against the respondents beyond reasonable shadow of doubt. A perusal of impugned judgment shows that the learned trial Court has recorded the acquittal in favour of the respondents with significant and sound reasoning. The respondents, in order to prove their innocence disclosed the name of absconding accused Saleem Javed who was involved in the business of furniture and had named him as the culprit responsible for the recovery of the contrband. The respondents were implicated on the basis of no direct evidence besides clearance services rendered to them, however the prosecution witnesses at the same time deposed that commercial exporters, loaders and clearing agents had no role with the manufacture of furniture. Moreover, no direct evidence was brought forth by the prosecution to establish the guilt of the respondents especially when they were not arrested from the place of the incident. The investigating officer failed to investigate Saleem Javed or try and apprehend him. PW-4 Asif Latif also deposed in favour of the respondents by stating that the respondents were not wholesalers or manufacturers, as such had no concern with the tables in the container. Moreover, it is also an admitted fact that the investigation officer recorded 161, Cr.P.C. statements of PW-7 Jan Khan and PW-8 Imran Khan after a delay of one year, which makes the evidentiary value of the same worthless. In this respect, reliance is placed on the case of Noor Muhammad v. The State and another (2020 SCMR 1049). The investigation officer, PW-9 Inspector Muhammad Muzzamil while deposing that the respondents have a clear criminal record also admitted that "It is correct to suggest that I have no direct or indirect evidence against the accused persons regarding purchasing, manufacturing or concealing narcotic contraband." The learned trial Court, after having examined and evaluated the evidence, has acquitted the respondents mainly on the grounds and reasons as follows:-
"67. The question arises whether the commercial exporters/accused persons were involved directly or indirectly in smuggling of 38 Kgs of heroin powder which were allegedly recovered from the container No.HASU-4104843. Admittedly, in the normal course of their business commercial exporters were filed customs documents and information provided by the exporter in the instant case while the absconding accused Saleem Javed provided the said wooden tables from which narcotic substance were recovered belonging to the said absconding accused Saleem Javed. However they cannot be presumed to be privy to any illegal act, which the commercial exporters have coined or had intended in their mind for that purpose. No direct or indirect evidence about their involvement with regard the alleged recovered narcotic substance. Particular/ when the I/O PW-9 Inspector Muhammad Muzammil Ahmed has clearly admitted in his cross-examination that no direct or indirect evidence against them though prima facie the accused persons are no beneficiary of the narcotic substance business. PW-4 Asif Abdul Latif has admitted in his cross-examination that accused were no wholesaler or manufacturers and also admitted that commercial exporters having no role with the manufacture of furniture."
9. No illegality or irregularity appears to have been committed by the learned trial Court while passing the impugned judgment which may warrant any interference by this Court. Learned Special Prosecutor ANF also failed to point out any specific material illegality or irregularity committed by the trial Court. The acquittal of respondents is as per law and the same cannot be interfered by this Court unless some cogent, reliable and trustworthy evidence is furnished by the prosecution which would tilt the scales of justice against the respondents, but unfortunately the prosecution could not come with the same. When an accused is acquitted from the charge by a Court of competent jurisdiction, then it is well established principle of law that double presumption of innocent is attached with the judgment of acquittal, therefore, such judgment cannot be interfered with unless it is proved to be arbitrary, shocking, capricious, fanciful and against the settled principles of criminal administration of justice. In this respect, reliance is placed on the case of The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others (2021 SCMR 873) and Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315). The Hon'ble Apex Court, in the case of The State v. Imran Nazir and another (2019 SCMR 1227) was also pleased to observe that:--
"A huge quantity of contraband notwithstanding we have not been able to take exception to the view taken by the learned High Court inasmuch as in the presence of two individuals in the cabin it was incumbent upon the witnesses to unambiguously point out the person on the vehicle in order to establish conscious possession of the seized stuff and in the face of wavering positions taken by the prosecution itself, respondents cannot be denied the benefit of doubt, a golden thread in our criminal jurisprudence. We do not feel inclined to interference with the impugned judgment."
10. The scope of appeal against acquittal is considerably narrow and limited and the criterion laid down for appeal against acquittal, is entirely different than the criterion of hearing an appeal against conviction. Different parameters are applied for interference in an appeal against acquittal and appeal against conviction. On the examination of the judgment of acquittal as whole, credence should be accorded to the findings of the subordinate Court whereby the respondents had been exonerated from the charge of commission of the crime. Moreover, as observed by the Hon'ble Apex Court in the case of Imran Nazir (supra), benefit of doubt is a golden principle and for giving benefit of doubt to an accused, even a single circumstance creating reasonable doubt is sufficient and the presence of such doubt entitles the accused to the benefit of such doubt.
11. For what has been discussed above, we find that the prosecution has failed to point out any illegalities or irregularities in the impugned judgment as to warrant interference by this Court based on the law regarding appeal against acquittal, as such instant Criminal acquittal Appeal No. 197 of 2015 is dismissed.
JK/S-23/Sindh Appeal dismissed.