1987 PLP 2100 (SCMR)

NASIM HASAN SHAH, J.‑‑On a complaint filed by the inspector of Drugs, D.I. Khan under section 23 of the Drugs Act, 1976, the petitioner was summoned to stand trial in the Court of Chairman, Drugs Court, Peshawar for 22‑1‑1986. On 29‑1‑1986 the petitioner submitted an application under section 249‑A of the Criminal Procedure Code for dismissal of the complaint wherein it was inter alia urged that no offence was committed within the territorial jurisdiction of the Court, the preparation was purely a Unani Herbal preparation and that complaint has been lodged without complying the provisions of sub‑rule (5) of Rule 3 of N .‑W . F . P . Drug Rules, 1982 and that both the ingredients identified were exempt under the notification of 17‑11‑1977 and the test were not carried out by the public analyst in accordance with law. In elaboration of the last contention it was submitted that the Government Analyst, namely Dr. Mrs. Bilqis Jamal Zafar, Director, Drugs Testing Laboratory, Punjab, Lahore, was not a Gazetted Government Analyst for N.‑W.F.P. under the law. The Drug Court accepted the last mentioned plea and without examining the other pleas, finding that the report of the lady Director was "legally valueless and the complaint accordingly having no legal foundation" could not stand, ordered the acquittal of the petitioner under section 265‑K, Criminal Procedure Code. It was, however, further observed:‑ "However, when the accused Salim Siddiqui was going unpunished on the technical ground, we feel not prevented to warn him not to repeat what he was found of having with him spurious and unregistered reparations and that too without any licence." This order was passed on 9‑7‑1986. Feeling dissatisfied with the above observation the petitioner submitted an appeal under Section 23 of the Drugs Act, 1976 before the Peshawar High Court praying that the last part of the judgment of the Drug Court be expunged and the petitioner be honourably acquitted of the charge. The appeal, however, was dismissed by the learned Chief Justice of the Peshawar High Court in limine vide order dated 11‑10‑1986. Relief was refused with the following concluding observation:‑ "In any case, the petitioner (appellant) need not be disturbed by the said remarks if he is a law‑abiding citizen and lives a clean life." The petitioner still feeling aggrieved has now moved this Court. Mr. Fazle Ghani Khan, learned Counsel for the petitioner and Mr. Bashirullah Khan A.A.‑G., N.‑W.F.P., who had appeared in response to a notice issued by this Court on 7 ‑1987, have been neard. Section 265‑K of the Criminal Procedure Code is in the following terms:- "265‑K. POWER OF COURT TO ACQUIT ACCUSED AT ANY STAGE‑‑Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence." The learned Court in exercise of the above power had acquitted the accused (petitioner herein), even though it was on the basis of a technical plea, but it then proceeded to damn him by observing that he was being warned "not to repeat what he was found having with him spurious and unregistered preparation and that too without any licence". In fact, the Court itself observed that the petitioner was not going to be allowed to go "unpunished". Thus, the petitioner has been acquitted and convicted by one and the same order. As the impugned observations in order of the Drugs Court renders the order of the Drug Court as self‑contradictory, namely, that after acquitting the accused under section 265‑K it proceeds to punish him, the impugned observations are liable to the expunged. The petition may therefore, be converted into an appeal and allowed. A short order in the following terms was passed by 21‑1‑1987 at the conclusion of the hearing:‑ "For reasons to be recorded later this petition is converted into an appeal and the same is allowed with the result that the impugned remarks will stand expunged." The above are our reasons for the aforesaid short order. M.I./S‑75/S Appeal allowed.