2017 P Cr. L J 1426
[Balochistan]
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ
The STATE through Regional Director/Force Commander, Anti -Narcotic Force
Balochistan ---Appellant
Versus
MUHAMMAD BAKHSHAL and another ---Respondents
Criminal Acquittal Appeal No. 94 of 2012, decided on 26th April, 2017.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence ---Appeal against acquittal ---
Prosecution case was that 102 packets of charas were recovered from the vehicle, wherein,
accused/respondents were seated ---Prosecution produced witnesses including complainant,
recovery witness and Investigating Officer in order to prove its case ---Complainant reiterated the
contents of Murasila on the basis of which FIR was registered ---Recovery witness stated that he
witnessed the preparation of parcels and other formalities on the spot besides identification of
articles produced in the Trial Court ---Said witness acknowledged his signatures on rec overy
memos ---Investigating Officer stated about the investigation conducted by him ---Said witnesses
were cross -examined at length but remained firm on material points ---Main accused/driver was
rightly convicted and sentenced as he was custodian of the vehicle and responsible for article
concealed/lying in the vehicle, however, case of present respondents was on different footings ---
Said accused/respondents raised plea at initial stage in respect of their taking lift in the said
vehicle which could not be r ebutted through reliable and confidence inspiring evidence ---
Prosecution witnesses did not utter even a single word showing that the said accused/respondents
were equally responsible for contraband kept and concealed in the secret cavities of the vehicle --
-Circumstances established that accused/respondents were not involved in the offence ---Appeal
against acquittal was dismissed accordingly.
(b) Criminal trial ---
----Benefit of doubt ---Scope ---Prosecution was duty bound to prove its case beyond the shadow
of reasonable doubt ---Benefit of doubt, if any would be extended in favour of accused.
(c) Criminal Procedure Code (V of 1898) ---
----S. 417--- Appeal against acquittal--- Presumption--- Double presumption of innocence was
attached with every acquittal ---Such order, unless the same was arbitrary, capricious, fanciful
and against the record could not be interfered.
Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.
(d) Criminal Procedure Code (V of 1898) ---
----S. 417(2- A)---Appeal against acquitta l---Assessment of evidence ---Scope ---Standards of
assessing evidence in appeal against acquittal were different from the standards of assessing
evidence in appeal against conviction--- Courts were always slow in exercising jurisdiction in
case of appeal ag ainst acquittal, unless, it was found that gross injustice had been done ---In the
present case, acquittal order was neither perverse nor shocking or contrary to the evidence
available on record ---Appeal against acquittal was dismissed accordingly.
PLD 20 15 Pesh. 143 rel.
Shams -ud-Din Achakzai, Special Prosecutor, ANF for Appellant.
Nadir Ali Chalgiri and Rahim Ullah Hajizai for Respondents.
Date of hearing: 3rd April, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Instant appeal is directed against the jud gment
dated 05th April, 2012 passed by the learned Special Judge (CNS), Quetta whereby the private
respondents were acquitted of the charge under section 9(c) of Control of Narcotic Substances
Act, 1997.
2. Brief facts of the case are that in pursuance of Murasila sent by the complainant Tanveer -
ul-Hanif, the FIR No. 70/2011 was registered with the police of Anti Narcotics Force Quetta on
26th June, 2011 wherein he alleged that on fateful day he received a spy information in respect
of trafficking huge quantity of Narcotic to 'Noshki' via 'Dringhar' in a single cabin pickup
bearing registration No.WAD -086. On the basis of aforesaid information, a raiding party was
formed, which started surveillance. At about 2:30 pm they found the afore numbered pickup
comin g from Dringhar side, signalled to stop, person sitting on the driver's seat told his name as
Saffar Khan, front seater as Muhammad Bakhshal and rear seater as Noor Muhammad. It was
alleged that on the pointation of accused persons recovery of 102 packets of charas was effected,
concealed in the floor of the said vehicle. It was further stated that from all of the aforementioned
packets, 500 gms of 'charas' was separated and sealed for chemical analysis while the remaining
substance was sealed in three sepa rate parcels. Hence the arrest of accused persons, taking into
possession of vehicle along with the substance, and registration of instant case against them. On
completion of investigation 'challan' of the case was submitted and trial commenced.
3. On 3rd August, 2011 the charge was read over and explained to the accused to which
they did not plead guilty and claimed trial. The prosecution, in order to prove its case produced
three witnesses. On examination under section 342, Cr.P.C., the accused persons di sputed the
case of prosecution and pleaded their innocence by submitting that they are innocent committed
no offence whatsoever, they have falsely been involved in a case of trafficking Narcotics and
prayed for their acquittal, they recorded their statemen ts under section 340(2), Cr.P.C. on oath
with the averments that the vehicle in question was handed over to the accused Saffar Khan
(convicted and sentenced by the trial court) by one Khair Mohammad at Panjpai for shifting the
same to Quetta whereas the respondents after taking lift from him were on their way,
apprehended by ANF officials and involved in the instant case falsely, however they did not
produce any witness in their defence.
4. The trial court after hearing the parties and evaluating evidence d id not find the
respondents guilty, as such acquitted them of the charge, whereas the Driver/Saffar Khan was
convicted and sentenced vide judgment dated 5th April, 2012, hence instant acquittal appeal.
5. It may not be irrelevant to mention here that Saffa r Khan (convict) had assailed the
Judgment before this court by way of filing appeal which was dismissed on 31st October, 2013.
6. Learned counsel for the appellant argued that the judgment impugned in respect of
acquittal of the respondents is contrary to law and facts because the acquitted respondents never
denied their presence in the vehicle nor disputed the recovery of contraband in question
therefrom which tantamounts to admission but the aforesaid important aspect of the case escaped
notice of the tr ial court which caused miscarriage of justice. He maintained that since the
prosecution had established the recovery of narcotics in presence of respondents by discharging
its primary duty provided under section 29 of the CNS Act, 1997 and the respondents were
legally bound to have proved their innocence but they failed. He criticized the judgment
impugned on the ground that on same set of evidence one of the accused was convicted and
sentenced while the respondents were acquitted of the charge, as such the judgment impugned
qua the acquittal of the respondents is liable to be set aside.
On the other hand the learned counsel for the respondents strongly opposed the appeal by
submitting that the judgment impugned passed by the learned trial court is based on proper
appreciation of evidence, does not suffer from any inherent defect or legal infirmity, as such is
not liable to be interfered with by this court. He added that the learned counsel for the appellant
failed to point out any specific illegality, irreg ularity, non- reading, misreading or misapplication
of law in the judgment impugned therefore appeal filed by the appellant is liable to be dismissed.
7. We have heard the learned counsel for the parties and gone through the record with their
assistance whi ch reflects that instant case was registered with the history of having found the
accused persons in conscious possession and control of huge quantity of narcotic when they were
on their way in a pickup near Dringhar. The prosecution, in order to prove its case produced
three witnesses PW.1 Tanvir -ul-Hanif, Assistant Director ANF, he appeared and reiterated the
contents of Murasila Ex. P/1- A on the basis whereof the FIR Ex. P/3- A was registered besides
alleged disclosure Ex. P/1- B made by the accused person s "jointly". PW.2, Javaid Khan, an
important witness of the arrest of accused persons search of the vehicle and recovery therefrom,
he witnessed the preparation of parcels and other formalities on the spot besides identification of
articles produced in the court, he acknowledged his signatures on memos Ex. P/2- C and Ex. P/2-
D and identified parcels of 'charas' as articles P/1 to P/108. PW.3 Amjad Ali, he is the
Investigating Officer of this case, during course whereof he recorded the statements of witnesses ,
visited the place of recovery and prepared site sketch Ex. P/3- A sent samples to FSL and
received report Ex.P/3 -L, on completion of investigation submitted 'challan' Ex. P/3 -M
whereupon acknowledged his signatures. The above named witnesses were cross ex amined at
length but remained firm on material points in respect of receiving spy information, formation of
raiding party, surveillance of Quetta, 'Noshki' Road arrival of accused persons including the
respondents in a pickup and on search recovery of huge quantity of narcotics concealed in the
secret cavities made in the floor of the vehicle. The main accused/driver was rightly convicted
and sentenced because he was the driver and custodian of the vehicle and responsible for articles
concealed/lying therei n however case of the present respondents is on different footings. From
the very initial stage they raised plea in respect of their taking lift which could not be rebutted
through reliable and confidence inspiring evidence nor PWs named above have been able to utter
a single word showing that the respondents were equally responsible for contraband kept and
concealed in the secret cavities of the vehicle therefore the learned trial court after attending
legal as well as factual circumstances of the case rig htly extended the benefit of doubt in their
favour. So far as the presumption of possession in respect of illicit articles as defined under
section 29 of the CNS Act, 1997 is concerned it does not absolve the prosecution of its primary
duty to prove its ca se beyond doubt, defence plea has to be adjudged by the court for its
probability and legal value depending on the circumstances of the case.
8. Admittedly the prosecution is always duty -bound to prove its case against the accused
beyond the shadow of reas onable doubt and benefit of doubt, if any, should be extended in
favour of accused. It is a golden principle of administration of justice that double presumption of
innocence is attached with every acquittal. In this context reliance can be placed on a jud gment
titled as Haji Paio Khan v. Sher Biaz and others reported in 2009 SCMR page 803. Relevant
observations therefrom are reproduced herein below; -
"It needs no reiteration that when an accused person is acquitted from the charge by a
Court of competent J urisdiction then, double presumption of innocence is attached to its
order, with which the superior Courts do not interfere unless the impugned order is
arbitrary, capricious, fanciful and against the record".
Standards of assessing evidence in appeal agai nst acquittal are different from those laid
down for appeal against conviction, while dealing such appeals courts are always slow in
exercising jurisdiction un -less it is found that gross injustice had been done, while the judgment
impugned is neither perverse nor shocking or contrary to the evidence available on record,
therefore, is not open to any exception in this respect, reliance is placed on PLD 2015 Peshawar
143 relevant observations therefrom reads as under; -
"Moreso, this is appeal against acquitt al and standards of assessing evidence in appeal
against acquittal are quite different from those laid down for appeal against conviction.
Marked difference exists between appraisal of evidence in appeal against conviction and
in appeal against acquittal. Appraisal of evidence, in appeal against conviction is done
strictly and in appeal against acquittal such rigid method of appraisal is not to be applied
as there is already findings of acquittal given by the trial court after proper analysis of
evidence on record. Scope of appeal against acquittal of accused is considerably narrow
and limited. Unless the judgment of acquittal is perverse, completely illegal and on
perusal of evidence, no other decision could be given except that accused is guilty or
there h as been complete mis -reading of evidence leading to miscarriage of justice. High
Court is always slow in exercise of jurisdiction under section 417, Cr.P.C. unless it finds
that gross injustice had been done in administration of criminal justice.
Judgment impugned passed by the learned trial court is unexceptional and is based on
proper appreciation of evidence is not liable to be interfered with hence is maintained
consequently, appeal filed by the appellant is hereby dismissed.
JK/69/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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