2019 PLP 106 (YLRN)

ABDUL MAALIK GADDI, J.

This Criminal Acquittal Appeal has been filed by the State / Anti-Narcotics Force through its Deputy Director (Law) against the judgment dated 01.02.2010, passed by the learned Special Judge (CNS) / IIIrd Additional Sessions Judge, Hyderabad, in Special Case No.43 of 2004, relating to Crime No.08 of 2003, registered at Police Station ANF, Hyderabad, under sections 12, 13 and 19 Control of Narcotic Substances Act, 1997, whereby the learned trial Court after full-dressed trial acquitted the respondent by giving him benefit of doubt.

2. Precisely, the facts of the prosecution case are that on 11.11.2003, Inspector Javed Iqbal of Police Station ANF Hyderabad, lodged FIR against the accused, stating therein that it has been learnt through reliable sources that Jahanzeb son of Zahir Shah and Zahir Shah son of Azam Shah, both by caste Pathan, residents of Katchi Abadi Jamshoro, District Dadu, who have been declared absconders in Crime No. 04 of 1996 and Crime No.10 of 1999 of Police Station ANF Hyderabad, under Section 9(c) CNS Act, 1997, have acquired property from the income derived from narcotics and they have no evidence/proof of any income from lawful sources. They are also involved in many cases of narcotics. According to initial information they do not have any other business except sale of narcotics. As per information collected so far, they have some properties in their possession i.e. (i) Rs.17,00,023/- in Bank Account No.1492 in Allied Bank Limited Journalist Colony, Hyderabad in the name of Alamzeb son of Zahir Shah (ii) Rs.675/- in Bank Account No.3228 in Allied Bank Limited, Journalist Colony, Hyderabad in the name of Aurangzeb Khan son of Zahir Shah and (iii) Rs.4289/- in Habib Bank Account No.60267-9 in SITE Branch, Hyderabad, in the name of accused Jahanzeb Khan. The accused have by acquiring and keeping possession of the property from the income of narcotics committed the offence under sections 12, 13 and 19 of CNS Act, 1997. Hence, this case is registered against Jahanzeb son of Zahir Shah son of Azam Shah, by caste Pathan, resident of Katchi Abadi, Jamshoro, Taluka and District Dadu.

3. After lodgment of FIR against the accused and on completion of investigation, the accused Jehanzeb was finally charge sheeted.

4. It appears from the record that the learned trial Court framed charge against accused at Ex-8, to which he pleaded not guilty and claimed to be tried vide plea at Ex-8/A.

5. At the trial, the prosecution examined P.W-1 Complainant Javed Iqbal at Ex-10, who produced FIR as Ex-10/A, mashirnama of seizing the record as Ex-10/B, original copies of documents and photocopies of documents as Ex-10/B-1 to Ex-10/B-21, mashirnama along with documents as Ex-10/C-1 to 10/C-3, order dated 17.12.2003 as Ex-10-D. P.W-2 Abdul Razzak was examined at Ex-11. P.W-3 Javed Hussain Mughal was examined at Ex-12. P.W-4 Rahim Bux was examined at Ex-13. Thereafter, the learned Special Prosecutor ANF vide statement as Ex-14 closed its side.

6. Statement of accused / respondent under Section 342, Cr.P.C. was recorded at Ex-15, wherein he denied all the allegations levelled by the prosecution against him and has deposed that he is innocent and has been falsely implicated by the ANF officials due to mala fide intention.

7. Learned trial Court after hearing the parties and assessing of the evidence acquitted the accused / respondent from the charge, hence, this appeal filed by the State/ANF.

8. Mr. Muhammad Ayoub Kassar, learned Special Prosecutor for appellant/ANF has contended that the proceedings of this case are to be regulated through Special Enactment CNS, 1997 and in this regard he referred Section 68 of the said Act, which is reproduced as under:- "

68. Presumption to the assets acquired through dealing in narcotics.

Where there is reasonable ground to believe that the assets of a person or any part thereof were acquired before or at the time of, or after the commission of an offence under this Act and there was no other likely source of acquiring such assets or part thereof, it shall be presumed unless the contrary is proved, that such assets or part thereof where acquired, generate or obtained through cultivation, manufacture, production, sale purchase, dealing or trafficking or narcotic drugs, psychotropic substances or controlled substances." Learned Special Prosecutor ANF further contended that there were reasonable grounds to belief that the assets of the accused are acquired and generated through trafficking or narcotics drugs and controlled substances. He further submitted that the Investigating Officer Javed Iqbal has collected the property and income accounts in the name of accused from various departments which he produced in his evidence. He added that presumption is sufficient to call upon the accused person to join investigation or to face the trial in order to prove their innocence and to deny the allegation levelled by the prosecution, therefore, onus to disprove the allegation lies upon the accused. He further contended that Section 67 provides the reporting of suspicion financial transaction, which is reproduced as under: "

67. Reporting of auspicious financial transaction.

(1) Not-withstanding anything contained in any law for the time being in force, all banks and financial institutions shall pay special attention to all unusual patterns of transactions, which have no apparent economic or lawful purpose and upon suspicion that such transaction could constitute or be related to illicit narcotic activities, the manager or director of such financial institution shall report the suspicion transaction to the District General." In this regard, the learned Special Prosecutor ANF also added that the prosecution through P.W Javed Iqbal has produced financial record of the bank there was huge transaction in the account of the accused person which were run beyond the means of accused, therefore, Investigating Officer on the basis of presumption and on the basis of suspicious financial transaction has been able to charge sheet the accused. Learned Special Prosecutor further submitted that since the prosecution has been able to prove that the assets generated by the accused are outcome of the controlled narcotic substance, therefore, that assets are liable to be freezed and forfeited as laid down under Sections 37 and 38 of Control of Narcotic Substances Act, 1997. He further contended that Section 12 provides Prohibition of acquisition and possession of assets derived from narcotics offences, therefore, material available before this court constitute offence committed by the accused. He further contended that accused has not properly provided the information to the income tax department and has not indicated the account in Allied Bank Journalist Colony Hyderabad for the yearly assessment form deposited with income tax department, therefore concealment of his account in the Allied Bank Limited which is in millions of rupees can be presumed that such income is generated through trafficking of narcotic substances, hence, according to him the accused is liable to be convicted under the relevant laws.

9. Learned Counsel for the respondent / accused submitted that the prosecution miserably failed to discharge his lawful duty and has failed to prove the allegation against the accused; that it is prime duty of the prosecution first to prove the case, then the accused has to discharge his duty to disprove the allegation when the prosecution is failed to discharge his duty, therefore, onus of disproving the allegation cannot be shifted upon the accused; that there is only solitary evidence of P.W. Javed Iqbal, whose evidence is inconsistent, untrustworthy, it is unbelievable as well as cannot be relied upon to call upon the accused for conviction; that the respondent / accused is not previously convicted in any narcotic case to prove that the properties have been generated by him from narcotic trafficking money; that in this matter Inspector ANF Javed Iqbal is the complainant, who himself has investigated the matter, therefore, his investigation cannot be safely relied upon to record the conviction against the accused, hence, the judgment passed by the learned trial Court is based upon sound reasons, which may not be interfered.

10. We have heard the learned Counsel for the parties and perused the documents and evidence available on the record. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of the offence is not sufficient to convict the accused and the accused continues with presumption of innocent until found otherwise at the end of the trial. It is settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view this basic touchstone of criminal administration of justice, we have examined the ocular evidence as well as circumstantial evidence along with the impugned judgment and come to the conclusion that the prosecution has failed to prove its case against the respondent/ accused for the reasons that in this matter in all four prosecution witnesses have been examined but none of them has stated even a single word that the present respondent / accused has ever been convicted in any narcotic case in the past. During the course of arguments, we have specifically asked a question from the learned Special Prosecutor ANF as to whether he has any record with him showing the conviction of accused in any narcotic case in the past, he has no answer with him. Even otherwise, we have gone through the entire record and having gone through the record we did not find that the present respondent has ever been convicted in any narcotic case in past. No concrete evidence is available on record that the respondent / accused had purchased the properties in question in his name from the money of sale / purchase of narcotic drugs.

11. On perusal of record, it reveals that in this case complainant of the case is Inspector Javed Iqbal of Police Station ANF Hyderabad and challan sheet shows that the said complainant himself is also the Investigating Officer of the case, who investigated the case. In such situation, in our view, no doubt that no specific bar exists under the law against the complainant, who is also Investigating Officer of the case, but being the complainant himself Investigating Officer of the case, it cannot be expected that he will collect any material which goes against the prosecution or gives any benefit to the accused. Evidence of such officer in the circumstances appears to be a weak piece of evidence and for sustaining the conviction, it would require independent corroboration which is lacking in this case. In this regard, we are supported by the case of Nazir Ahmed v. The State reported in PLD 2009 Karachi 191 and Muhammad Khalid v. The State reported in 1998 PCr.LJ 808.

12. In this case, the prosecution has examined 04 witnesses and perusal of their evidence it reveals that except the Investigating Officer Javed Iqbal none of the prosecution witnesses has deposed that accused has possessed, acquired, converted or transferred the assets derived, generated or obtained directly or indirectly either in his own name or in the name of his associates, relatives or any other person. The rest of the P.Ws. referred above appear to have only produced the record.

13. We have also gone through the evidence along with impugned judgment with the above assistance of Special Prosecutor ANF and find number of contradictions and lacunas in the case of prosecution and the learned trial Court while acquitting the respondent / accused in last paragraph of Point No.1 of the impugned judgment has elaborately concluded / recorded the reasons of acquittal. For the sake of convenience, it would be proper to reproduce the said para of the impugned judgment, which reads as under:- "The P.W. Javed Iqbal in his evidence had deposed that accused were involved in 21 cases of narcotics substance but the prosecution is failed to bring the evidence on record and in how many accused was convicted, in all cases either he has been acquitted or the cases has been withdrawn from the accused. There is also dispute over the father name of present accused who was convicted in one case. The quantity of the narcotic substance referred in the case even if presumed true as laid in under section 68 of Narcotic Substance Act, 1997 even then that quantity would be valued prosecution pleaded. On the contrary the accused have produced documents which shows plots situated at Hyderabad and Jamshoro were in Katchi Abadi, later on had been leased in favour of the accused by the department as such property is legalized by the government therefore prosecution cannot be question that has been derived from the income, out of control of narcotic substance. The prosecution has produced number of documents available on record but no one from other department except Javed Iqbal and mashirs and examined to prove that presumption taken by the investigating officer put the accused for the charge which it is facing. Under the circumstances I abundantly clear that the involvement of the accused in the present case is false and there is no evidence what-soever at all against him and he is entitled to acquittal and the properties sought to be forfeited, referred above and the amount in bank accounts of brother of the accused and him are liable to be released, the point is replied in doubtful."

14. We have considered the entire evidence and documents on record and the reasoning given by the learned trial Court for acquitting the accused. In our humble view, the learned trial Court has carefully scrutinized the entire evidence and documents on record and arrived at the correct conclusion. We, therefore, clearly of the opinion that the reasoning given by the learned trial Court for acquitting the respondent/accused is wholly justified and sustainable and the same is in accordance with the settled principles of law, as such, on consideration of the totality of the circumstances, this appeal vide our short order dated 26.09.2018 was dismissed and these are the reasons of the said short order. SA/S-43/Sindh Appeal dismissed.