The State Vs Ashiq

Judsment She et

Prsnaw AR HrcH Counr. AsnorrlsAD BENcH

JUDICIAL DEPARTMENT

Criminal Anneal No.26 t-N2023

The State...(Appellant) versus

Ashiq... (Respondent)

Present: Malik Amjad Inayat, Assistant Advocate General for appellant.

Nemo for respondent being a motion- case.

Date of hearing :18.02.205.

JUDGMENT

AURANGzEB. J.- Throu gh the instant appeal, State has challenged the order and judgment of Additional Sessions Judge/Judge Special Court, Mansehra dated 13.02.2023 whereby respondent namely Ashiq son of Roshan has been acquitted from the charges levelled against him in case FIR No.644 dated 29.11.2021 registered under sections 9(d) / 9(c)/ll(b) of The Khyber Pakhtunkhwa

(DB)Hoh'ble Mr.Justice Muhanmad Faheem llali H on' ble Mr. J ust ice Aurang:e b

Control of Narcotic Substances Act, 2019, at Police Station Shinkiari Mansehra.

2.Precisely. the facts of the present case are that after registration of the case, a full- fledged investigation was carried out and then challan against the respondent was put in Court where charge was framed and served upon him to which he pleaded not guilty and claimed trial. In support of its case, prosecution produced as many as seven witnesses, however, after hearing arguments of both the parties, the learned trial court acquitted the respondent ofthe charges levelled against him vide impugned order and judgment dated 13.02.2023. The State has now challenged the aforesaid order/judgment dated 13.02.2023 before this Court through the instant appeal.

3.Arguments of leamed Assistant Advocate General heard in detail and record perused.

(DB)Hon'ble Mr.Justice Muhammad Faheem Wali Hon' b le Mr..Justic e Auang:e b

4.It is the case ofprosecution as alleged by the complainant namely Asim Bukhari SHO (PW-3) in the Crime Report (Ex.PW-6/1) backed by Murasila (Ex.PW-3/2) drafted on the spot that on 29.11.2021 he alongwith other police personnel including Yasir IHC (PW-7) and constable Tanvir No.132 (PW-4), raided the house of acquitted respondent who was absconding ln cases registered vide FIR No.432 dated 03.08.2021 under sections 9(dy15 of The Control of Narcotic Substances Act and FIR No.433 dated 03.08.2021 under seations 9(d)/11(a) of The Control of Narcotic Substances Act and during the raid, acquitted respondent was found present in his house.

Search was conducted by the police during which one white colour shopping bag was recovered from storeroom. On checking, two packets Gardah Nama Charas, one packet of heroin and one packet of Ice were recovered.

The recovered contraband was weighed on the spot through electronic scale; one packet of

(DB)Hon'hle Mt.Justice Muhammacl Faheem llali H on' bl e l,[r.Jttsti ce Aurangze b

Charas came to be 1130 grams, other packet came out to be 1055 grams (total weighing 2185 grams); 5/5 grams was separated from each packet and sealed into parcels No. I and 2 lor chemical analysis. while remaining Charas weighing 2175 grams was sealed into parcel No.3 as case property; heroin came out to be 433 grams while Ice came out to be 233 grams;

l/1 gram was separated from each packet of heroin and Ice and were sealed into parcels No.4 and 6 for FSL analysis, while remaining thereof were sealed into parcels No.5 and 7 as case property. Accordingly the acquitted respondent was arrested. The Seizing Officer (PW-3) took into possession all the parcels through recovery memo (Ex.PW-5/l) ln presence of the marginal witnesses and thereafter he drafted Murasila (Ex.PW-3/3 ) and sent the same to Police Station through Tanveer No.132 (PW-4) for registration of case, hence. the instant case.

(DB)Hon'ble Mr.Justice Muhammad Faheem Lltali Hon' b le Mr. Juslic e Aurangze b

5.In order to bring home charge against the acquitted respondent, the prosecution has produced as many as seven witnesses including eyewitnesses i.e. the Seizing Officer (complainant) namely Asim Bukhari who appeared as PW-3 and marginal witness to the recovery memo (Ex.PW-3/1) namely Yasir IHC who appeared as PW-7 as well as carrier of Murasila to Police Station namely Tanvir No.l32 who appeared AS PW-04, however. when we gone through their Court statements the same transpire that the they are not trustworthy and confidence inspiring as the same are not consistent rather material contradictions exist therein on material points of the prosecution case. The Seizing Officer (PW-3) as well as marginal witness to the recovery memo namely Yasir IHC (PW-7) in their exam inat ions-in-ch ie f have categorically stated that samples of heroin and Ice were sealed into parcels No.4 and 5 and remaining thereof was sealed into parcel No.6

(DB)Hon'ble Mr.Justice Muhammad Faheem llali Hon' ble Mr. Justice Aurangze b

and 7, while on the other hand, recovery memo (Ex.PW-3/1) reads that sample of heroin was sealed into parcel No.4, while sample of Ice was sealed into parcel No.6. The former (PW-

3)also stated that colour of recovered heroin was cream off white, while the latter (PW-7) stated that color of the same was off-white.

Besides that, Seizing Officer (PW-3) has stated that color of recovered Ice was crystal type/ sugar, whereas PW-4 namely Tanvir No.132 has stated that it was of white color. These contradictions not only create reasonable doubt in the prosecution case but also relays to two- fold impressions fullb that either PW-7 was not present on the spot at the time of occurrence or secondlv that the contraband shown as aase property of the instant case is not the one which is alleged to have been recovered on the spot. Be that as it may, the prosecution has not been able to successfully prove that factum of recovery of contrabandd beyond shadow of reasonable doubt. In the

(DB)Hon'ble Mr.Justice Muhammad Faheem Wali Hon' b le Mr. Justice Aurang'-e b

case of "Mst.Asia Bibi"t the Supreme Court acquitted the accused by observing that many inconsistencies/discrepancies were found in the statements of the two women who were introduced as orosecuti on witnesses inasmuch as variations were made by them from their earlier statements recorded under S.161, Cr.P.C. Further there were also discrepancies between the examination-in-chief of the complainant and the complaint lodged by him.

Such material contradicti ns and inconsistent statements of the witnesses and com lainant cast further doubts on the coherence of the evidence pertaining to the questions as to who informed the complainant about the occulrence; who was present at the time of disclosure regarding the allegation made against the accused. Certain contradictions were also present in the examination-in-chief and cross-examination of a police officer/ prosecution witness regarding the place and I Mst.Asia Bibi v. The State (PLD 2019 SC 64)

(DB)Hon'ble Mr.Justice Muhammad Faheem llali H on' ble Mt.Jus lice Aurahg.e b

time of arrest of accused. Prosecution had categorically failed to prove its case beyond reasonable doubt.

6.It is also the case ofprosecution that the Seizing Officer was Asim Bukhari (PW-3) so his name abbreviation could be A.B, however, admiuedly he has affixed the monogram of B.T on the parcels, which aspect of the case also casts a reasonable doubt of his presence on the spot as it is the mandate of the relevant rules that the Seizing Officer shall affix the seal/monogram carrying the abbreviation of his own name. In a case2, Supreme Court of Pakistan while acquitting the accused has observed that the most important factor in that connection, which compounded all those doubts and raised a big question mark upon the veracity of the prosecution's case against the appellant, was that after allegedly recovering the contraband substance from the boot of the motorcar driven by the appellant the parcels of Akhtar lqbal vs. The state (2015 scMR 291)

(DB)Ilon'ble Mr.J slice Muhammqd Faheem Wali H on' ble Mr. Justice Aurang:e b

the recovered substance were sealed with a monosram read lns as SJ and it had been disclosed bv Mati-ur-Re hman @.W.2) before the learned trial Court that the said monosram belonged to one Sameen Jan Inspector who was not even posted at the relevant Police Station at the time of the alle ed recov from the aopellant and as a matter of fact at the said time the said Inspector was serving at a Police Station in Quetta. Mati-ur-Rehman .w.2 had not been able to advance any explanation whatsoever as to why the recovery officer namely Assistant Dire ctor Rehmat had not put his own mono s ram on the seals of the oarcels d as to whv he had used the

monogram of some other officer who was not even posted at the relevant Police Station at the relevant time.

7.It was also noted that nothing was recovered from direct possession of the acquitted respondent as admitted by the star prosecution witnesses in their Court (DB) Hon'hle l,lr.Justice Muhammad Faheem l[/all on' ble Mr. Justice Aurang:e b

statements. No private person was associated by the Seizing Officer (PW-3) with the alleged recoveries despite having an opportunity. It is also an admitted fact on record that no search warrant was obtained before the raid on the house of acquitted respondent. Similarly, prosecution has failed to bring on file any revenue record in respect of ownership of the house. Moreover, no sale proceeds was recovered from possession of the acquitted respondent. It is also an undisputed fact that in the said house wife and children of accused were also residing. These aspects of the case also create doubt in the prosecution case.

8.It is settled law that for giving benefit to an accused, it is not essential that there should be many circumstances creating doubts, even a slng le doubt is suffrcient to extend its benefit to an accused oerson as it is the cardinal lncl le of criminal administration of ustice that let hundred suiltv oersons be ouitted but one innocent n erso n should not be convicted and thus by applying the aforesaid yardstick,

(DB)Hon'ble Mr.Justice Muhammad Faheem ll/ali Hon' ble Mr.Justic e Aurang:e b

- l1-

the learned trial court has rightly extended the benefit of doubts in favour of the acquitted respondent. In a recent case3 the Supreme Court has held that it is a well settled principle of law that for the accused to be afforded the risht of the benefit of the doubt. it is not necessarv that there should be many circumstances creatin g uncertaintv and if there is only one doubt. the benefit olthe same must o o to the oetitioner The Supreme Court of Pakistan in another casea, has held that single circumstance creating reasonable doubt in a p rudent mind about the zuilt of accused makes him entitled to its benefits not as a matter of grace and c oncession but as a matter of rieht.

The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of I Saghir Ahmad vs The State and others (2023 SCMR 241) a Bashir Muhammad Khan v. The State (2022 SCMR 986)

(DB)Hon'ble Mr.Justice Muhammad Faheem Wali Hon ble l1r.Justice Aurang:eb

doubt. Similarly, in a case5 the Supreme Court has reiterated the same rational by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. In another case6 the Supreme Court has held that it is settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in Khalid Mehmood alias Khaloo v. The State (2022 scMR I148) Kashif Ali alias Kalu v. The State and another (2022 SCMR 1515)

(DB)Hon'ble Mr.Justice Muhammad Fqhee Wdli Hon ble Mr.Justice Aurang:eb

favour of the accused. Reliance in this behalf can be made upon the following cases:-

i)Ta rt o Pervez v. The State (1995

SCMR T345

iD Ghulam Oadir and 2 others v, The State (200 8 SCMR 1221).

iii)Muhammad Akram v. The State 009 scMR 230

iv)Muhammad Zaman v, The State (20r4SCMR7!2)and

v)Muhammad Mansha v The State" 2018 scMR 772

9.It is also settled since long that before the trial, an accused is presumed to be innocent unless proven guilty and once an accused succeeds to eam an acquittal order then double pr n is attached to his innocence and as such while hearing an appeal against acquittal, the appellate Court cannot disturb, or reverse or set-aside such an acquittal order unless the same is found to be perverse, shocking, anificial and over and above suffering from jurisdictional defect or non-reading of evidence or misreading of evidence. The above yardstick if applied to the present case, we found that the impugned acquittal order is neither perverse nor

(DB)Hon'ble Mr.Justice Muhdmmad Faheem Wali Hon'ble Mr.Justice Aurangzeb

artificial nor suffering from misreading or non- reading of evidence. It is also settled law that while hearing of appeal, if on re-appraisal of evidence, a contrary view is spelling-out even this is not sufficient for interference in the acquittal order unless it is established that none ofthe ground ofacquittal finds support from the record and evidence available on file. In a case7, the Supreme Court of Pakistan has held that there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well-settled that A ellate Court would not interfere with acouittal merelv because on rea raisal of the evidence it comes to the conclusion different from that of the Court acq uittins the accused. provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional Jehangir v. Aminullah & others (2010 SCMR 491)

(DB)Hon'ble Mr.Justice Muhammdd Faheem Wqli Hon b|e l''lr.Justicc 4urang:eb

cases on overwhelming proof resulting ln conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage ofjustice and for no other purpose. The view taken by this Court in Ghulam Sikandar v.

Mamaraz Khan PLD 1985 SC 1.1 is well-known that in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and

consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit ofevery reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well- accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. This

(DB)Hon'ble Mr.Juslice Muhammarl l'-aheem llali H on' ble Mr.Justice Aurangze b

will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. In another case8 the Supreme Court has held that whenever an accused person is acquitted of a criminal charge then he enjoys double presumption of innocence; one before the trial of the case and second after his acquittal. Similarly, ln a casee the Supreme Court of Pakistan has held that an acquittal appeal stands on a different footing than an appeal against the conviction. In acquittal appeals, the superior Courts generally do not interfere with unless they find that miscarriage ofjustice has taken place. The factum that there can be a conkary view on re-appraisal of the evidence by the Couft hearing the acquittal appeal simpliciter would not be sufficient to justiff interference with the acquittal judgment.

Barkat Ali v. Shaukat Ali & others (2004 SCMR 249) e The State v. Bashir and others (PLD 1997 Supreme Court 408)

(DB)Hon'ble Mr.Justice Muhammad Faheem Wali H on' ble Mr.Justice Aurangze b

v

10.For the reasons recorded above, no illegality or inegularity could be either pointed out or found in the impugned judgment/order dated 13.02.2023, therefore, the same is maintained and upheld, while instant criminal appeal being meritless is dismissed in limine.

ANNoUNCED 18.02.202s.

(Jamil)

JU 6

(yb lva

JUDGE

(DB)Hon'hle Mr.Juslice Muhqmmad Faheem llqli Hon' ble Mr. &ulice Aurangze b