The State Through PG Sindh (Appellant) VS Mst. Kainat Tunio (Respondent)

@ AcTr+'l*d JI-o t \^*st J03

THE CO TO CO T A

Criminal Appeal No.D- 01 of 2019.

,( Criminal Appeal No.D- 04 of Z}tg.

Cr. Acquittal Appeal No.D- 17 of Z0lg,

Present:

Mr.]ustice Mohammad Karim Khan Agha _] Mr. ]ustice Zulfiqar AIi Sangi -I

Appellsnls; Roshan Ali and Mst.Bakhtawar through Mr.Habibullah G. Ghouri, Advocate in cr.

Appeals No.D-0L of 201,9 ancr oshaq phurpoto in Cl.Appeal No. D-04 of Z01g through nar.etnar Abbas Solangi Advocate

Complainant: The state through Mr.Ali Anwar Kandhro, Addt. P.G.

Respondent: Mst.Kainat through Mr.Habibullah G. Ghouri, Advocate in cr.Acquittar Appeal No.lT of 207g.

Date of hearing: 19.01 .2027.

Date of judgment: 26.07.2021

IUpGME]}{_I

Mohammad Karim Khan Aeha -.I:- By this common judgment, we intend to dispose of these three connected matters out of which appellants Roshan AIi, Mst.Bakhtawar and Oshaq Phulpoto by filing Cr. Appeals No.D-01 and 04 of 2a19 have assailed the impugnecl judgment dated z1;,Z.z0lg passed by learned Sessions Judge, Shikarpur in Sessions Case No.11 of 201g re:

state v-oshaq and others arising out of crime No.26 of 2077 of police Station Sultan Kot registered for offence untler Sections g(.) Control { of Narcotic Substances Act, 1997 (CNSA), whereby the appellants have been convir-ted and sentenced to suffer R,I for life and pay fine of Rs.500,00Af in case of default in Payment thereof, they shall suffer further S.I for six months more, however, benefit of Section 382 (b) Cr.p.C was extended to the appellants, while the State through Addl. P.G by filing Cr. Acquittal

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2 t,,Ll Appeal No'D-17 of 20lg has assa,ed same impugned judgment to the extent of acquittal 0f respondent/accused Mst.Kainat.

2.The prosecution case as unforded in the FIR is that:

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"complaint on beharf of the s,T:.,j tlrr roday I arong staff each and *_":TI namery pclzggl with porice Farooq Ahmed Pc/921 Khuda s;;; Hussain pc/246g Bux pc/lsO zaldr urrruin duly uniformed and armed with service weapons departed on government vehicle No.spD-027. drive, by driver'pcH;q;- Nawaz from P' s vide Roznamcha entry the -rnup rrlo. t z-1720/2:-alzo t z checking on the directions of for ,rr" senior officerr. ** reached at wahi via'Jacobab.ad shikarpu, on* soomra way main road; where we started snap checking of ,smail.uro rarge vehicles. ou.irrg checking, time 1810 hours, we checked a ntetr'ran car of white colour; were sitting on front seats of the two men car while two ladies, with open faces' were sitting on the rear seats of the car. we found two Patchkas/plastic sacks lying on white the ..u. ,*uts in between the two ladies' Meanwhile, we opened and checked the said patchkas and found packets packed in^ shopping uug* thereafter we opened and checked the packets anid found thu.ur. bue to the absence of private witnesses/Mashirs on the spot Pc sadam Hussain pc and Farooque Ahmed were appointed as Mashirs/witn.sre, urrd then the charas was taken under the custody. Apprehenaing ladies in car, we asked ttrem tt the sitting men and *ii names uia-*aaresses. That the men sitting on the front seats told thei. driver, oshaque Ali s/o Rustom ati nu-r, and addresses: l) ul, phulpoto 2) Roshan Ali s/o Muhammad saffar blc Kalal. Ladies t their names and address: 3) Bakhtawar sitting on the rear seats told Khaion */o Roshan Ali blc Kalal 4) Kainat d/o Abdul Fatah blc Tunio r/o Nazar Mohalla Larkana' subsequently, we counted the charas lhat th*. e were 75 shopping bags/Thalt.lI charas packed in slabs; it * ,o,ut weight of entire charas was 75 kilogram. ihereafter we urt.a them regarding the charati jn reply all of th*n, told that charas is of one Muhammad Arif.s/o .Abdul Qadir Khan Brohi ilo Balochistan whose mobile phone number is 0333-9 825557; euetta he gave the said charas for selling in Larkana. The apprehended p.iron, arrested for committing offence punishabrJ;7;;ib) were, therefore, that they were personaily frisked that of cNSA. After '.ro.n.y on* note of r 000/cash amoun, one original NIC with n** oshaque ?ld were secured from driver Oshaque AIi Ali, one .uorn.y note of 1000i- rupees was secured from Roshan Ali Kalal and ro oih*. thint *-.rpt necessary clothing were with him, from lady ,u*rty Kainat Tunio we secured one Nokia mobile phone of black colour, from lady Mst. Bakhtawar Kalal nothing was secured. Thereafter we searched the car; nothing else \^/as recovered from the car. All the recovered charas was sealed and stamped for chemical examination. The recovered castr amount and ulc of I stamped and such mashirnanra was prepared oshaque Ali were sealed and mashirs'The arrested. accused alongwith in presence of tlie case property were brought to the P.s. As the arrested accused men and women have committed offence punishable under section g(c) cNsA by carrying charas with them in Mehran car No.AUT -szi iherefore, an FIR is being lodged against them on behalf of the state.,,

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lof 3' on conclusion of usnal in'estigatio', accusecl \^rere sent up to stand trial' Accused Mst'Kainat appeared and claimed to be juvenile on the basis of school Leaving certificate as such her case was bifurcatecl from the rest of the accused vide order dated 15.3.201g. Formal charge was framed t against the rest of the accused to which they plead not guilty and claimed trial' Thereafter in the wake of report furnished by medical board, accused Mst'Kainat was founcl adurt being 20 years therefore, her case was amalgarnated with case of rest of accused and amended charge was framed against all the four accused to which they pleaded not guilty and claimed trial.

4' At trial the prosecution examined 3 pw's and exhibited numerous documents and other itenrs in order to prove its case. The statements of all the accused were recorded under section 342 cr.pc in which they claimed that they had been falsely implicated in the case. None of the accused gave evidence under oath or called any Dw in support of their defence case.

5' on conclusion of the trial, the learned trial court after hearing learned counsel for the parties and appraisal of evidence brought on record, convicted and sentenced the appellants b oshaque, Roshan AIi and Mst Bakhtawar vide the impugned judgment dated 2l.lz.z[Lg as mentioned above' while accused Mst.Kainat was acquitted, gi.ring rise to filing of these appeals against conviction and acquittal by the appellants and the state respectively.

6' The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 21'12'2018 passed by the triar court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

Turning firstly to the appear against convictions.

7 ' Learned counsel for the appellants have contenderl that the car does { not belong to the appellants, that they have been falsely implicated by the police on account of enrnity who had let the real culprit off; that the evidence of the Io could not be relied upon as he was also the complainant and therefore would not carry out a fair investigation; that no independent mashir was associated with the arrest and alleged recovery; that .o,

tbL recovel'y was made from any of the apperants as the vel'ricle; that even otherwise they were not in the porice had robbed apperant Mst' Bakhtawar and had foisted the narcotics on the appeilants; that even the appellants were in if the vehicle (which wa.q deniecl) they had no conscious knowledge ,d. of the narcotics; that the porice believable as the narcotics story was not would have been hidden in a secret cavity of the car and not hiclden between the two female accusecr; that there were major contradictions in the evidence of the pw's which rendered that co-accused Mst'Kainat it unreriabre; had been acquitted on the same set of evidence and as such the appellants were entitled to the same tueatment and that for any of the above reasons basecl on the benefit of the tioubt the apperants acquitted of the charge' be In support of their contentions placed reriance on Ameer the apperants Hamza alias Hamza v.

The state (2015 p,cr,L.J 7402)' Ikramullah and others v. The srate (2015 scMR 7002),Abdul Ghani and others v' The state (2079 scMR 608), zahoorAhmad and another The state (7997 scMR E4g), v. Riaz Mian v. The state MuIa Jan v. The state (2074scMR (z,r4scMR r16s), g62),Noorur Huq v. The state SCMR l4S1), Hussain {7gg2 Shah and others , Court 732),rariq parvez v. rhe;,;;,;;; ffi:-fiJ::HI'^1T,ff t The state (2001 scMR 41), wApDA v. Khanmullah erc. 368)' Abdul Khaliq shah (pLJ 2001 sc v. The stare ('BLR z01g sindrr Shahzada v. The State rg,) and

(2010 SCMR 841).

8' on the other hand learned Addl. prosecutor Generar has fury supported the impugned judgment and contended that the pw,s evidence are a]l reliable, in their trustworthy and confidence inspiring and fury implicate the appellants in the offence; that the narcotics wrere recovered from the car once it was stopped at a check poinf that the appellants were arrested on the spo! that the narcotics were weighed and searecl on the spof that there are no major contradictions in the evidence of the pw,s to make it unreliable; that the chemical report was positive and as such the { prosecution has proved its case beyoncl a reasonabre doubt against the appellants and their appeals should be dismissed and the convictio* and sentences may be maintained. In support of his contentions reliance on shazia Bibi he pracecl v state (z,z'scMR 460) a,d Mustaq The State (2020 SCMR 474) Ahmed v

/ol 9 ' We have hearcl the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the learned counsel for the appellants, the impugned judgment with their able assistance and have considered the relevant law including that cited at the A bar

10' At the outset we find that the authorities cited by the appellants are of little, if arty t assistance to them based on the particular facts and crrcumstances of this case

71" After our reassessment of the evidence on record we find that the prosecution has proved beyond a reasonable doubt the charges against the appellants for which they have been convicted and sentenced and hereby uphold their convictions and sentences for the following reasons;

(a)The FIR was registered with promptitude giving no time for concoction and the s.161 Cr.pc stateLents of the police pw's were recordecl promptly which were not significantry improved upo. by any pw at the time of giving evidence.

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(b)rhat the arrest ancl recovery was made on the spot and the appellants were caught red handed with ihe narcotics by the police whose eviclence fully corroborates each other in ail material respects u, **il as the prosecution case. It is well settled by now that the e'idence of a police witness is as reliable as any other witness prorrid*d that no enmity exists between them and the accused and in this case only a general unsubstantiated enmity has been alleged Lgaiist the police which is not worthy of any reliance and as such we find that the police pw's had no reason to implicate the appellants in a false case. Despite lengthy cross examination none of the pw's evidence was shaken and we find the evidence of the police pw,s to be reliable, trust worthy and confidence inspiring and thus we believe the porice eviclence whiih is corroborative in all material respects. Reliance in this I respect is placed on the case Mushtaq Ahmed (supra) where it was held in material part as under at para 5;

"Prosecution case is h.inged Lrylon the statentents o.f Anmir Masoorl, TSI (pW-Z) nnd Abid Hussain, 336-C (PW-3); being officinls of the Repuhlic, tlrcy do not seern to harue iln fixe to grind ngainst the petitioner, interceptecl nt public place drring routine search, Contrabnnd,'t h

6 toB considernble in quantity, cnnnot be possibly foisted to fabricate a fake charge, thnt too, rttithout nny npparent reason; while furnishing euidence, both the witnesses remained througlnut consistent and confidence inspiring and as such t can be relied upon ruithout a demLtr."

(c)That there are no major contradictions in the evidence of the PW's and it is well settled by now that minor contradictions which do not effect the materiality of the evidence can be ignored. In this respect reliance is placed on Zakir Khan V State (1995 scMR 1793).

(d)It is settled by now that there is no restriction on the complainant being the IO provided that no animosity or enmity is alleged against him by the accused and. none has been alleged specifically against the IO in this case. In this respect reliance is placed onZaf.ar V State (2008 scMR 1254)

(") Most significantly the narcotics were recovered from the car which was being driven by appellant Oshaque which was a small Mehtan car where the narcotics were on the back seat between appellant L Mst Bakhtawar and respondent Mst,Kainat and as such there is no doubt that all the appellants had actual knowledge of the narcotics which were being transported. The car was being driven by appellant Oshaque and appellant Roshan Ali was with him in the front passenger seat and quite naturally his wife Mst Bakhtawar was sitting in the back seat with the narcotics which were between her and co- accused/respondent Mst.Kainat. Appellant Roshan Ali and his wife Mst Bakhtawar in their 5,342 Cr.PC statements even admit that they wel'e traveling in the car when the complainant stopped them. The car was recovered along with the narcotics. In this respect in the similar case of Nadir Khan V State (1998 SCMR 1899) it was held as under,

"We haue gone through the. eaidence ofl record and .find that the petitioners had the charge of uehicle for a lcng journey stnrting iro* pr5fu64ttnr r and tenninttttng at Knrncli. T'het1 had the driuirtg licenses also. As being person incharge of the uelicle for such n long iourney, they must be saddled ruith the necessnry knoruledge with. regard to tlrc ztehicle and its contents. The probabilities or tlte presttmptions ilre nll dependents on the cirutmstances of each ctrse and in the present case tlrc circumstnnces frrlly establish tlrcir knoruledge snd flT.lareness of the contents and their,

explanation shotuirtg the ignorance actually strengthens that - condurin rather than ttteakening it,,. -

(f)In this regard reliance t praced on Hussain shah others v- The srare (pLD 11qro and 2020 si rszl which facts and circumstarices is sim,ar to the of this case where it is simply ,,fJ not _ I r, n o t a wa r e or the n ,rf *:?,IXl Xl,,fJ ;r,: ";;";;* a rc,;i ;;

(g)Furthernrore, under section 29 cNsA once the recovery been proven as in this case has the onus shifts to the accused his innocence in that at least to show narcotics' The appellants he had no tro*r*ag* of the have not been able to do In the case or pr"nuoob-ur-Ruh;;;^y so in this case. was herd as under in this srate (2010 MLD 481) it respect at p4g5 para 14

"under the proaisions of sectiort zg of the once. recollrll of contrabands ,uL, c.I/,s." Acf ,the priuate car ruhici rias by - ;_i fro* a then in contror of the tzuo appellants, the burden to "exprain the possessioin ruhet,rcr actual or constructiae ,r,,r, o,n the appefiants to discharge but neither they haSe lect -in in drtnce nor haae appeared dl,rfyo1-any'ro"iarnn ;i n; prosecution eaidence under section 340(2),'cr.'p.i. tt the charge laid upon them has remained unrebutted,,. ", ) (h) That it wourd be extremery difficurt to foist such a large amount of charas being mentioned in- Mustaq in totar T5 KG,s as srate v Abdari 4!1*a,s case (supra) and The Shah lioot scMRrsill-

(i)That there was no deray in sending the chemical report for anarysis which turned out to be positive with all required protocols being followed.

0)That the recovered narcotics were kept in safe custody from the time of their ,".orr".y to the time when they were taken for chemical anarysis and no suggestion of tampering with the same has even been made' The narcotics *uL seared on the spot, remained sealed in the markana for which a been producecr before being markana entry has chemicar examiner by pw ;;;;;;rted to the seal and who was examined 3 r-rE r"ffi Ahmed under as to safe .Lrn ay and the I narcotics reached the chemicar examiner in a seared condition as per the chemicar report- In this respect is placed on the recent supreme 1eli11ce Court case of Zahid and Riaz Ari v state dated (unreporred) in Jail Appeal 0g-03-2020 lrro.1 72 0I 201,8. Although this case concernect rup* since it concerned the safe custody of certain sr,vabs being sent to the chemical examiner we consider its fiidings applicable to the safe custody io be equa,y of .,arJotics being sent to

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llo the chemical examiner which held as under at para 5 in material part;

"The chemical exuminer's report produced by the lady doctor states that the seals of specimens sent for chemical ,} examination utere receiaed intact and it was the chemical examiner ruho had broken opefi the seals, therefore, the contention of the petitioners' learned counsel regarding the safe transmission of the specimens is discounted both by this fact as well as by the fact that no question was put regarding tampertng of the said seals."

(k)We are also of the view that based on the evidence on record the safe custody and its unbroken chain of custody from time of recovery to placement in the malkana to it being delivered to the chemical labatory for analysis has met the requirements of the recent supreme court case in Criminal Appeal No.LB4 of 2020 Mst Sakina Ramzan V State (unreported) dated

(1)That all relevant police entries were duly exhibited.

(*) That although no independent mashir was associated with the arrest and recovery of the appellants it has come in evidence that no private person was available to become an independent mashir I at the time of arrest and recovery. Even otherwise S.L03 CI.P.C is excluded for offences falling under the Control of Nlarcotic Substances Act 1997 by virtue of Section 25 of that Act. In this respect reliance is placed on the case of Muhammad Hanif V The State (2003 scMR 1237).

(n)That in dealing with narcotics cases the courts are supposed to adopt a dynamic approach and not acquit the accused on technicalities. In this respect reliance is placed on Ghualm Qadir V The State (PLD 2006 SC 61) which held as under at para I P.66.

"We frre not agreeable ruith the contention of tlrc learned counsel because fact remains that "Poppy Flowers" Tlere found lying on the roof of tlrc aehicle therefore, tlrc technicality, ruhich is being pointed out ' by the lenrned counsel, would not be sufficient to acquit lim, ln addition to it in such-like cases I Courts are supposed to dispose of the matter with dynamic approAch; instead of acquitting the drug paddlers on technicalities, as it has been held in (1993 SCMR 785) and (PLD 1996 SC 305"). (bold added)

(o)No doubt it is for the prosecution to prove its case against the accused beyond a reasonable doubt but *"

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have also considered the defence case which we - disbelieve. This is because the appellants have simply raised the bald allegations that they have been falsely implicated in the case yet they have not suggested any specific enmity with any PW who as such had no

reason to falsely implicate them in the case

'1.2. Thus, for the reasons mentioned above, we find that the prosecution has proved its case beyond a reasonable doubt against the appellants and the impugned judgment is upheld and all their appeals against conviction are dismissed.

Turning to the State's appeal against acquittal in respect of respondent Mst.Kainat.

13.Learned Addl.PG submitted that the reasons given in the impugned judgment for acquitting the respondent Mst.Kainat were perverse/ arbitrary, whimsical and were completely against the evidence on record which had lead to a miscarriage of justice and as such her acquittal be set aside and she be convicted and sentenced for the offence charged.

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1,4. Learned counsel for respondent Mst.Kainat submitted that the grounds for over turning an appeal against acquittal were very narrow which carried a double presumption of innocence and that the trial court had rightly acquitted the respondent based on the evidence on record by extending her the benefit of the doubt and as such the state's appeal against acquittal be dismissed and the respondent's acquittal in the impugned judgment be upheld.

15.We agree with learned counsel for respondent Mst Kainat that it is settled law that judgment of acquittal should not be interjected unless findings are perverse, arbitrary, foolish, artificial, speculative and f ridiculous as held by the Supreme Court in the case of The State v. Abdul Khaliq and others (PLD 2011- Supreme Court 554). Moreover, the scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of the innocence is significantly added to the cardinal rule of crirninal jurisprudence as the accused shall be presumed to be innocent until proved guilty. In other words, the Presumption of

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innocence is doubled as held by the Supreme Court in the above referred judgment. The relevant para is reproduced hereunder:- "16, We haae heard this case at a considerable length stretching on quite a number of dates, and uith the nble assistance af the lenrned c-ounsel for the parties, haue thoroughly scanned euery material piece of eaidence aaailable 'on the record; fin exercise primarily necessitated utith reference to the conuiction appeal, and also to ascertain if the conclusions of the Courts belozs are against the euidence on the record and/or in aiolation of the law, In any ,orit, before embarking upon scrutiny of the uarious pleas of lay nnd fict raised fro* both the sides, it may be mentioned that both the learned counsel agreed that the uiteria ,f interference in the judgment 'ina-otuing against acquittal is not the s&lnq as against cflses aionaiction. In tlis behnlf, it shall be releaant to mention that the fottoriing precedents prouide n fair, settled nnd consistent uieut of the atperior Coltr'ts about the rules uthich should be follozued in such cases; the dicta are,.

From the ratio of alt the aboae profiouncements 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 txfltrorV and lTmited, because in an acquittat the presumption of innocence is significantly added to the cardinal rule of uiminal i_utisprudence, that fln flccused shall be presumed to be innocent is doubled. The courts shall be aerA slow in interfering with such an aequittal judgment, unless it is shown to be Pefi)etsq passed in gtoss 'uiitation of law, suffering from the eruors of Sraae misreading ot non-reading of the eaitlence; such judgments should not be lightly interfered ind heauy burden lies on the prosecution-to rebut the prrrr*ption of innoience which the acatsed has earned and attained on account oi lrit acquittal. lt has been categorically held in a plethora of iidgments that interferenee in a iudgment_of acquittal is - 'rflre and it r piotecution must show that there are glaring elors of law and faci committed by the Cottrt in arriuing at the decision, which would result into graae miscaruiage of justice; the acquittal judgment "roirlurion is perfunctory or uhotly artilicial 9r- a shocking has belen drawn. Moreoaer, in number of dictums of this court, it has been categoricatty laid down that such iudgment should not be interjected until the findings are Pen)ersq arbitrary, foolish, artificial, ipeculatiue and ridiculous (Emphasis supplied). "The Court of appeal should not interfere simply for the reason that on the re-appraisal of the euidence a different conclusion could possibly be'arriaed at, the factual conclusions should not be upset, 'except *lrrn patpably Peruetse, suffering from se-rious and material u. Mrlhantmad Shnrif (1995 factual infiruniti'es. lt is aaerred in The State.

SCMR 6SE) and Muhammad ljaz Ahmad u. Raja Fahim Afznl and 2 others (1.ggg SCMR i.ZBl) that the Siryrerne Court being the final foruru ruouldbe 'chary I and hesitnnt to interfere in the findings of tle Court,s belott', lt is, therifore, expedient and imperatiue tlmt - the nboue ctiteria and the

guidetines should be follortted in deciding these appeals." fuold and itnlics added)

1,6. Having gone through the impugned judgment it aPPears that at respondent Mst. Kainat has been acquitted for the reasons mentioned

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Para 21 of the impugned judgment which we set out below for ease of reference "21. As per prosecution stor!, two bags containing 7s kilograms of charas were lying an rear seat in betzaeen two lady acrurud ,L Mst.Bakhtawar and Mst.Kainat and it has been establisiled during trial that all the persons sitting in the car u)ere haaing knowledg"e about the placement of contraband charas in the ,i,or. Accused Oshaque being driaer and custodian of the cnr cannot be absolaed frr* responsibility tuhereas accused Roshan Ati and his zttife Mst,Bakhiautar being mature persons u)ere knowing about placement oi charas in the car and they Tt)ere in a position to aaoirl bonrding in the iar if they were not inaolued in the transportation of charas, Howeue+ accused ltist.Kainat by appearnfice looked luaenile and is not of such aged person, who Tt)ns initially treated as juaenite offender and later-7n on the basis of report of Medical Board she was treated as adult accused and tried iointly with other Accused, appears to be neighbor of accused Roshan Ali and Mst.Bakhtawar as she is neither relatud to them nor she is their caste fellow. She had no other choice but to sit in the same car raith other accused with whom she had come. Her inaolaement in transportation of charas could not be established by the prosecution. Her relationship with other accused has also nit been established", (bold added)

17.We find that exactly the same evidence, reasoning and findings as discussed in Paragraph 11 of this judgment apply equally to respondent l Kainat which lead us to dismiss the appeals of the other appellants (Oshaque, Roshan Ali and Mst Bakhtawar). Exactly the same evidence is on the record of the trial court which lead to the conviction of the aforesaid appellants as lead to the acquittal at trial of the respondent Mst. Kainat. Once the learned trial judge believed the PW's as he did then he had no option but to also convict respondent Mst. Kainat. She was fraveling in the same car as the appellants when it was stopped by the police and the recovery of the narcotics was made hidden between her and appellant Mst. Bakhtawar both of whom were sitting next to each other in the back seat of the car with the narcotics between them. Mst Kainat was also arresteiC on the spot along with the other appellants when the narcotics were recovered next to her in the car, she had no specific enmity with the police for them to

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falsely implicate her, she did not raise her defence that she was picked up from another van and falsely implicated in this case durilg cross examination which was only used as another afterthought cluring her 5.342 Cr.PC statement.

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t''i, 18. Even para 2"1, of the impugned judgment which lead to her acquittal and was reproduced earlier in this judgment states as under in material parf

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"As per prosecution stor!, two bags containing 75 kilograms ,f charas were lying on rear seat in between two lady accused Mst.Bakhtawar and Mst.Rainat and it has been established during trial that all the persons sitting in the car were haaing knowledge about the placement of contraband charas in the car"

19.Thus, having in effect found the respondent Mst.Kainat guilty in the above excerpt of the impugned judgment the learned trial judge then goes on to acquit her primarily on the basis of her young age and immaturity, having no choice but to get in the car and her lack of blood relationship with the other appellants. We find such finding to be utterly perverse, arbitrary and completely contrary to the evidence on record. This is because the respondent Mst.Kainat was 20 years of age at the time of the offence and therefore was certainly old and mature enough to be responsible for her actions; that there is no evidence that she was forced to accompany the appellants in the car and that simply because she is not a blood relative to + the other appellants does not exonerate her. By the same token/reasoning appellant Oshaque w'ho is not related by blood to appellants Roshan Ali and Mst. Bakhtawar by applying the same logic/reasoning should also have been acquitted by the trial court. The trial court even finds that the respondent is a neighbour of the appellants and thus had a nexus with them and a reason to be in the car with them.

20.Thus, we find respondent Ms Kainat's acquittal by the trial court to be on account of glaring errors of law and fact committed by the Court in arriving at the decision, which would result in a grave miscarriage of justice and that the acquittal judgment is perfunctory, wholly artificial ancl a shocking conclusion has been drawn which is completely contrary to the I evidence on record and thus we allow the States appeal against acquittal in respect of respondent Mst. Kainat set aside her acquittal as held in the impugned judgment and convict her for the offense u/ s I (c) of the CNSA stated in the amended charge dated 23.05.2018 and sentence her to suffer R.I for life and pay fine of Rs.500,000/ =, in case of default in payment

t3 f ,15 al thereof, she shall suffer further S.I for six months, however, benefit of Section 382 (b) Cr,P.C be extended to her.

i 21,. Mst.Kainat is called absent. The SSP Larkana is directed to immediately arrest the respondent Mst, Kainat and hand her over to the women's prison at Larkana where she shall serve out her sentence. A copy of this ]udgment shall be sent to SSP Larkana for implementation and he shall file his compliance report within four weeks of the date of this judgment.

22.In summary, all the appeals against conviction are dismissed and the States appeal against acquittal of respondent Mst. Kainat is allowed.

23 The above aPPeals against conviction and acquittal stand disposed of in the above terms.

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