2020 P Cr (PLP)

IJAZ ANWAR, J.

Mushtaq Ahmad, petitioner herein, through the instant Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has prayed for the following relief:- "On acceptance of this writ petition, i. The order dated 17.03.2015, order dated 18.05.2015 passed by the respondent No.2 i.e. Judge Special Court, Control of Narcotic Substances (CNS) be set aside and declared illegal, unjustified, uncalled for, bad in law and facts and against the norms of justice. ii. The respondent No.3 be directed not to take any further action on charge sheet dated 29.05.2015. iii. Any other relief not specifically prayed for and this Hon'ble Court deems appropriate may also very graciously be granted in favour of the petitioner and against the respondents."

2. Facts, in brief, leading to the instant writ petition are that petitioner being Inspector of Anti Narcotics Force, recovered 68 KGs heroin from one Akhtar Muhammad vide case FIR No.44 dated 22.06.2011 under section 9-C of the Control of Narcotic Substances Act, 1997 (hereinafter called "the Act"). The aforesaid accused was tried by the learned Judge, Special Court (CNS), Peshawar and was acquitted vide judgment and order dated 17.03.2015. The learned Judge, Special Court also rendered observations against the petitioner by giving a direction to the Director General, ANF to hold enquiry in the instant case so that responsibility is fixed and no one in future takes law in his own hands. Being aggrieved, petitioner filed the instant writ petition.

3. Keeping in view the averments made in the petition in hand, comments were called from the respondent No.3 who furnished the same accordingly, wherein, it is averred that the Department has issued a charge sheet to the petitioner as per the order of the learned Judge, Special Court (CNS), Peshawar, however, the enquiry has not yet been completed due to status-quo order dated 08.07.2015.

4. Arguments heard and record perused.

5. Perusal of the record reveals that petitioner, being complainant, has registered a criminal case against the accused Akhtar Muhammad vide FIR No.44 dated 22.06.2011 under section 9(c) of the Act who was acquitted by the learned Judge, Special Court (CNS), Peshawar vide judgment and order dated 17.03.2015, and also made observations against the petitioner by giving a direction to the Director General Anti Narcotic Force, to hold an enquiry into the matter so that responsibility is fixed for registering a false case against the accused Akhtar Muhammad.

6. Though, under section 26 of the Act, the learned Trial Court can direct for initiation of criminal proceedings against the delinquent officer(s), in case it appears to him/her that seizure and arrest is vexatious and unnecessary, however, there is no such provisions for holding a departmental enquiry against the petitioner/ complainant of the case or any recovery Officer.

7. Apart from the above, benefit of doubt was extended to the accused by certain personal observations of the learned Trial Court which, to our understandings, was beyond his authority. It was prevailed upon him that the accused is a heroin addict and it is unimaginable that he can be trusted through whom transportation of such item(s) can be carried out.

8. The observations of the learned Judge, Special Court (CNS) to the extent of issuance of direction for initiation of departmental proceedings against the petitioner was, thus, uncalled for and is not maintainable.

9. We have also gone through the evidence of the case and are of the view that though there are strong grounds for the acquittal of the accused but the recovery and arrest cannot be termed as hit by the provision of section 26 of the Act.

10. For the reasons stated hereinabove, the instant writ petition is allowed. The observations rendered by the learned Judge, Special Court (CNS), Peshawar against the petitioner in the impugned judgment and order dated 17.03.2015 are set-aside and as such, is declared as of no legal effect. Furthermore, respondent No.3 may pass an appropriate order regarding the fate of departmental enquiry, in view of the judgment of this Court. MH/98/P Petition allowed.