2001 P Cr (PLP)

FAIZ MUHAMMAD QURESHI, J.‑‑‑ Present appellant has called in question the impugned judgment; dated 3‑11‑1999 passed by the learned Special Judge, Narcotics, Shikarpur in Special Case No. 137 of 1995 under section 9(c), Control of Narcotic Substances Ordinance, 1995 whereby the appellant has been convicted and sentenced to suffer imprisonment for life and to pay fine of Rupees one million and in default of payment of fine to appellant to undergo S.I. for three years and the benefit of section 382‑B, Cr.P.C. has been also accorded to appellant, hence this appeal. Briefly the facts of the prosecution as narrated in the F.I.R. are that the complainant received orders from the S.S.P., Shikarpur that narcotics are being supplied from village Bado so he asked him to keep vigilant eye on that route. Accordingly he started strict checking on that road. On 6‑6‑1995 the complainant received spy information that few bags containing Charas are lying in the room of the house of accused Shah Nawaz son of Walidad Lolai in his village Bado, kept under threshed sheaves of wheat. On receiving such information the complainant alongwith his subordinate staff left the police station vide Entry No. 16 at 17‑00 hours in Government vehicle No.8764/GS driven by P.C. Gul Muhammad and proceeded towards the indicated place. They encircled the house and entered therein, where they found one person sitting on a cot. One room of his house we got opened from him. The complainant. appointed A.S.‑Is. Nadeem Shah and Gul Hassan Ghanghro as Mashirs and entered the room. The police party removed the threshed sheaves of wheat and found five bags (Bachkas) lying in the room. The bags were opened and found containing .Charas. The complainant deputed H.C. Abdul Majeed to bring big size scale and weights. One bag was weighed which came to be 40 kilograms. Total weight of five bags became 200 kilograms of Charas. The complainant took out one kilogram of Charas from one bag and sealed as sample. Remaining substance was also sealed whereafter the complainant prepared Mashirnama, brought the accused and the case property at police station where he lodged the report. Eventually the present accused was challaned before this Court to face the trial. A formal charge under section 9(c), Control of Narcotic Substances Ordinance, 1995 was framed against the accused to which he did not plead guilty and claimed to be tried. The prosecution in support of their contentions, had examined complainant, Hadi Bux Memon, P.W. A.S.‑I. Nadeem Shah whereafter the learned prosecutor closed the prosecution side. Statement of the accused was recorded under section 342, Cr.P.C: He also examined himself on oath then the side of the defence was closed. The learned trial Court formulated the following points for determination:‑‑ "(1) Whether the accused Shah Nawaz was found in possession of 200 kliograms of Charas on 6‑6‑1995 at 17‑00 hours by police party headed by' Inspector Hadi Bux Memon, S.H.O., Police Station Dakhan? (2) Is he guilty of the offence?" After having gone through the evidence adduced by the prosecution and material available on record, passed the judgment in terms as stated above. We have heard the learned counsel for the appellant as well as learned counsel for A.A.‑G. for the State and with their assistance we have gone through the evidence adduced by the prosecution and other material placed on record. During the course of arguments, we have observed that the challan has been submitted under Articles 3/4 of Enforcement of Hadd Order whereas the charge has been framed under the Control of Narcotic Substances Ordinance, 1995. We have also observed that the appellant was A pauper and he was provided an Advocate namely Ali Anwar Soomro who was junior Advocate and thereafter another counsel made an application under section 540, Cr.P.C. on the ground that the witnesses examined by the prosecution be recalled as the appellant has not been properly represented by an Advocate who was junior. Such application is said to have been not pressed by the counsel for the appellant. We have also seen the statement of the appellant under section 342, Cr.P.C. and the same does not bear the signature of the appellant which is in violation of section 364(2), Cr.P.C. as provisions of Criminal Procedure Code are also applicable in the instant case. We have also examined the impugned judgment, delivered by the trial Court and the impugned judgment does not reveal that the statement under section 342, Cr.P.C. given by the accused, has been taken into consideration by the trial Court while delivering the judgment. Learned counsel for the appellant and the learned counsel for the A.A.‑G. for the State have put forward the proposal for the remand of the case on the ground that the challan is said to have been submitted under Articles 3/4 of Hudood Ordinance whereas the charge has been framed under Control of Narcotics, the statement under section 342, Cr.P.C. does not bear the signature which is the illegality incurable under section 537, Cr.P.C. We have also observed that the appellant has gone represented by an Advocate who was junior as stated by the learned counsel for the parties at the bar. We have also observed that the charge is defective. Accordingly we are of the considered view that it is a fit case for remand. In view of the no objection given by the learned counsel' for the A.A.‑G. for the State we set aside the impugned judgment. Case is remanded with directions to the trial Court to frame fresh charge and hold a fresh trial and after giving full opportunities to the learned counsel for the parties pass order in accordance with law. H.B.T./S‑103/K Case remanded.