KARACHI, June 20: The Supreme Court set aside on Monday acquittal of a former president of the Federation of Pakistan Chambers of Commerce and Industry in a narco case and directed the trial magistrate to complete his trial along with that of two co-accused within 60 days. The case against Raja Abdul Rehman was registered in March 1991 when, according to the prosecution, a huge quantity of charas was recovered in a raid on his plot (Compound No L.C. 45, Sector 29, Landhi Industrial Area). The raid was conducted by excise police and officials, and two people, both named Khan Mohammad and alleged to be his employees, were found packing charas in cardboard boxes. Out of a total of 160 boxes, 20 slabs of charas weighing one kilogram each were recovered. All three were booked under the Prohibition (Enforcement of Hadd) Order, 1979.

The challan was submitted before the first judicial magistrate (Karachi East) in April 1991. An application under Section 249-A of the Criminal Procedure Code was moved by the FPCCI ex-chief in August 1993 for his acquittal as, according to him, there was no evidence to connect him with the commission of the alleged offence. He said he had nothing to do with the plot or the people found packing charas there.

The application was rejected and the accused moved another application in February 1994, which too was dismissed with an observation that the evidence already produced warranted a trial. He sought transfer of the case and moved a third acquittal plea in 1994 before the new trial magistrate, who allowed it. A prosecution appeal against the acquittal was dismissed by the Sindh High Court in 1995. The state challenged the SHC order before the Supreme Court, which granted leave to appeal in October 1997 ‘to consider whether the acquittal was proper on an application under Section 249-A, CrPC, at a stage when the entire prosecution evidence in the case had been completed and the case was fixed for the statement of the accused, especially when there were other accused against whom the trial was continuing’.

The appeal was finally heard by an SC bench, comprising Justices Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad. Additional Advocate-General Dr Qazi Khalid Ali appeared for the appellant state and Advocate Chaudhry Aitzaz Ahsan for the respondent accused. The proceedings were held at the principal seat and setting aside the acquittal, the bench ordered that the trial court would resume the proceedings from where they were left off in 1994.

AAG Khalid Ali submitted that the main question requiring determination was whether the Supreme Court would take upon itself the task of appraisal, analysis, and scrutiny of the prosecution evidence for deciding whether it was satisfactory, sufficient and of such quality as warranted conviction or acquittal. The court would not only undertake the above exercise but would also endeavour to satisfy itself whether the trial judicial magistrate, in appraising or analyzing the evidence, had travelled beyond the scope of authority vested in him while deciding the acquittal application.

Advocate Aitzaz Ahsan argued that the court could not travel beyond the scope of the leave granting order. The only question before the court was whether acquittal could be allowed at a stage when the entire prosecution evidence had been recorded and the case was fixed for the statement of the accused and there were two other accused who had not sought acquittal under Section 249-A. Several questions of law formulated by the appellant, he said, could not be raised or considered in view of the limitation imposed by the leave granting order. The judgment, authored by Justice Ashhad, repelled the contention, observing that in exercise of its power to do complete justice, the Supreme Court could examine points other than those on which the leave was granted.

Upholding the AAG’s submission that when the entire prosecution evidence had been adduced, propriety demanded that the matter should have been decided on merit, the judgment said there could be no dispute that an application under Section 249-A could be filed ‘at any stage’ but cited several Supreme Court decisions to observe that ‘usually a criminal case should be allowed to be disposed of on merits after recording of the prosecution evidence’.

When the law provides for a detailed inquiry into offences for which an accused has been sent up for trial, the judgment said, then ordinarily and normally the procedure prescribed by law should be followed unless some extraordinary circumstances are shown to exist. The evidence led by the prosecution to prove that the plot from which a huge quantity of narcotics was recovered belonged to the accused and that the co-accused caught packing charas in bags were his employees required an explanation from him. The magistrate should have recorded his statement under Section 342 of the CrPC instead of proceeding to decide the acquittal plea, the judgment added.

It also noted that the first magistrate’s order dismissing the second acquittal application on merits in April 1994 had attained finality on expiry of the period prescribed for filing appeals. Another acquittal application was thus barred. There is no provision for repeated applications once a plea has been decided on merit and an observation has been made that the case warrants a decision on merit. The magistrate concerned decided the acquittal plea illegally and the acquittal order was void ab initio and devoid of any force.

The judgment also favoured the AAG’s argument that when there are more accused than one, the court would appraise the evidence for purposes of acquittal of one of the accused differently and it would not be permissible for it to reflect adversely on the entire prosecution evidence, on the basis of which trial would still proceed against the remaining accused. It observed that an acquittal under Section 249-A or 265-K would not have the same sanctity as an acquittal order on merits. The principles relating to concurrent findings and presumption of double innocence are applicable when an accused is acquitted after a full-fledged inquiry, it said. The SHC decided the prosecution appeal in a very cursory and hasty manner and its order is not sustainable, the SC judgment said.