2014 P Cr (PLP)

KHALID MEHMOOD KHAN, J.

The State, appellant herein, through the instant appeal, has questioned the judgment dated 16-1-2012, passed by the learned Additional Sessions Judge-IV/Judge, Special Court, Swabi, whereby, she acquitted the accused-respondent namely Farooq.

2. Precisely, brief facts of the case are that on 21-10-2010 complainant Farooq Zaman Khan, SI along with other police officials were on mobile gasht. When they reached near the spot, they noticed that a young man was standing on the roadside in the suspected condition. They, after parking the vehicle near him, searched him and recovered three packets of charas, weighing 3000 grams from his possession and was accordingly taken into possession and, on cursory interrogation, he disclosed his name as Farooq and, as such, was charged for the commission of offence and a case was registered against him vide F.I.R. No.1484, dated 21-10-2010, under section 9 of the Control of Narcotic Substances Act, 1997 in Police Station Swabi.

3. On completion of investigation, the accused-respondent was challaned to the Court for trial. The copies of the relevant documents under section 265-C, Cr.P.C. were supplied to him. The charge was framed against him, to which, he pleaded not guilty and claimed trial. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the accused-respondent, produced as many as five witnesses.

4. On conclusion of the prosecution evidence, the accused-respondent was examined under section 342, Cr.P.C. He, in his statement, denied the charges and pleaded innocence. He, however, in support of his defence, didn't opt to lead any evidence in his defence.

5. The learned trial Court, after hearing the arguments of both the parties and on appraisal of evidence, acquitted the accused-respondent vide judgment dated 16-1-2012. Feeling dissatisfied with acquittal, the State-appellant has pulled the chain of this Court through the instant appeal.

6. The learned Deputy Advocate-General appearing on behalf of the State-appellant contended the accused-respondent while smuggling huge quantity of narcotics has been arrested red-handed on the spot; that all the witnesses were consistent in their version; that the recovery has been effected from the immediate possession of the respondent; that the FSL report is positive and fully supported the prosecution version; that sufficient evidence was available on the record for the conviction of the respondent; that the prosecution has succeeded to prove its case beyond reasonable doubt, that the learned trial Court hasn't acted in accordance with the well-recognized principles, laid down by the superior Courts of the country in this behalf and that the judgment of the learned trial Court is totally based on misreading and non-reading of evidence, which is liable to be struck down.

7. We have gone through the available record carefully and considered the submissions made by the learned counsel for the State-appellant.

8. When the learned Deputy Advocate-General after consuming sufficient time to convince us for the reversal of the impugned judgment and conviction of the accused-respondent has contended through his valuable arguments, we seemed that he might be succeeded in his efforts, therefore, we have very minutely gone through the entire record in light of the impugned judgment and after considering them, we noticed that in the whole episode, there are two star witnesses, one is complainant namely, Farooq Zaman SI (P.W.2) while the other is marginal witness namely, Fazal Taj (P.W.5). During their statements and especially in their cross-examination, they have totally contradicted to each other on material points i.e. drafting of murasila, recovery memo, card of arrest; consumption of time on the spot; information of the presence of the accused-respondent on the spot; returning back directly to police station; use of police mobile or vehicle of Tiger Squad at the relevant time and separation of 5 grams of charas, when at the relevant time, less than 1000 grams bott was not available. The moreso, when no plausible explanation of sending of contraband to FSL after the delay of about twelve days has been made, that too, when the accused-respondent was not the history sheeter nor was convicted in similar cases. Therefore, we have come to the safe conclusion that the prosecution has badly failed to bring home charge against the accused-respondent to connect him with the commission of offence. A perusal of the impugned judgment reveals that the learned Special Judge, after taking stock of the entire material on the record, arrived at the conclusion that the prosecution has not been able to establish its case against the accused beyond any reasonable shadow of doubt. So, in this background, we don't think the judgment recording acquittal can be held to be arbitrary or whimsical by any attribute, that too, when no useful purpose would be achieved if, by accepting the instant Criminal Appeal, the impugned judgment of the lower Court is set at naught and the case is remanded back for trial de novo, because the possibility of conviction of accused-respondent is remote and re-trial would result in futile exercise. The Hon'ble Supreme Court had repeatedly observed that one of the principles in appeal against acquittal is that acquittal carries double presumption of innocence. One at initial stage that till found guilty accused is innocent and second, the trial Court has confirmed the presumption of innocence by recording acquittal; Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928). The superior Courts otherwise do not interfere with the order of acquittal passed after proper appreciation of evidence even if a different view of the evidence could be possible, if taken to extreme; Fayyaz Akhtar v. State (1993 SCMR 828), unless the same was not supported by evidence on the record or was shown to have been caused gross miscarriage of justice or was perverse or the reasons given for acquittal were wholly artificial, shocking and ridiculous; Ghulam Sikandar v. Mamraz Khan (PLD 1985 SC 11). Needless to say that even a single doubt if found reasonable is sufficient to warrant acquittal of an accused. In this case numerous material doubts are available. We, therefore, don't feel persuaded to admit this appeal to regular hearing. It is, thus, dismissed in limine. HBT/108/P Appeal dismissed.