2006 PLP 1217 (YLR)

ALI NAWAZ CHOWHAN, J.--Through this criminal appeal an order dated 10-3-2005 given by an Additional Sessions Judge, Lahore, is being questioned whereby he dismissed the application made under section 265-K, Cr.P.C. by the appellant Muhammad Yaseen.

2. The matter pertains to case F.I.R. 448, dated 4-12-2002 registered under sections 15 and 6/9 of the Control of Narcotic Substances Act, 1997 at Police Station, Shera Kot, Lahore.

3. The story as narrated in the F.I.R. by the Sub-Inspector, Islampura Circle, Lahore, was that on a spy information when he stopped out car he found the driver Safdar Khan in it whom he arrested while his companion made good his escape. It was on the basis of the statement of said Safdar Khan he was proceeding against Yaseen. The following excerpt from the F.I.R. is reproduced below.

4. According to the learned counsel the statement of an accomplice had scant value in law. That the fact is that the narcotics in question were never delivered to said Yaseen and, therefore, Yaseen never came in possession of these and, as such, no offence was committed by Yaseen even if what Safdar Khan was stating was true.

5. However, the learned Court below was not persuaded by his arguments and it made the following observation while disposing of his application under section 265-K, Cr.P.C. and these are reproduced below: "FIR was lodged on 4-12-2004 on the assertion that on the same day at 3-00 p.m. Safdar Khan accused was apprehended by the Police and Charas weighting 75-KG was recovered from his car and he indicated that he purchased the said Charas from Yaseen, present petitioner. Now Yaseen, petitioner has filed the application under section 265-K, Cr.P.C. for his acquittal. It is evident from the file that incriminating evidence is available against? the present petitioner. Moreover, firstly challan was submitted in respect of Sadar Khan, co-accused and Yaseen present petitioner remained absconder. Absconsion of the accused Yaseen is sufficient ground to disallow his application, hence the application is dismissed."

6. At the very outset the learned counsel pointed out that there is a misreading on the part of the learned trial Court of the record because it is nowhere given in the F.I.R. that the Charas in question was purchased from Muhammad Yaseen who was being shown as a prospective recipient and who had not as yet received the consignment.

7. Learned counsel was, therefore, of the view that even if this case proceed further it will be an exercise in futility which will not result in any conviction of the said Muhammad Yaseen.

8. Muhammad Yaseen, it is said may be an alleged absconder but abscondence simpliciter is not per se a fact to be read against the appellant.

9. Firstly we find misreading of the F.I.R. itself by the learned trial Court and secondly, we are of the view that abscondence in record remains an allegation until it is linked with the necessary mens rea.

10. We, therefore, are of the further view that the order in question is infirm, it is sketchy and it does not properly meet the arguments which had been addressed. We, therefore, set it aside and remit the case back to the learned trial Court with directions that he consulted the record weighed the possibilities of the ultimate result of the case ending in conviction or acquittal of the appellant. Parties are directed to appear there on the date already fixed. We further direct that the learned trial Court will not proceed further in the matter until this matter is disposed of on the basis of record of which the learned trial Court is itself the repository. Disposed of. H.B.T./M-1335/L??????????????????????????????????????????????????????????????????????????????? Order accordingly.