2007 PLP 1500 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present appeal are that on 22-11-2001 at 2-30 p.m. the complainant Excise Inspector Hyderabad Mumtaz Ali Narejo along with his subordinate staff intercepted the co-accused Behram in a street near Katchi Para, Phaleli, Hyderabad. From his search 200 grams of Charas were secured. Such mashirnama was prepared in presence of Excise Constable Nisar Ahmed and Qalab Hussain. The said accused and the property were brought to the Excise Office Hyderabad where the complainant lodged the F.I.R. It was alleged that on interrogation the said accused Behram disclosed that he purchased the Charas from appellant Amir Ghulam. Thereafter the complainant started the investigation, went to Karachi from Hyderabad and raised the house at Jamshed Quarters where the appellant was present. From his possession 260 kg. of Charas was secured. Such mashirnama was prepared in presence of Excise Constables of Hyderabad. The accused and the property were brought to the Excise Office South Karachi where the complainant made. such entry and then brought the appellant and the property to Hyderabad where without lodging fresh F.I.R. submitted the challan in which the co-accused Behram and appellant were shown accused.

2. It is pointed out that no fresh F.I.R. for commission of offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 in respect of recovery of 260 kg. Charas from the possession of appellant was lodged at Karachi or Hyderabad.

3. The learned Judge CNS, Hyderabad tried the appellant and co-accused Behram jointly by framing the charge on 19-8-2003. In the charge date, time and place of commission of offence allegedly committed by Behram were mentioned whereas date, time and place of commission of offence in respect of the appellant were not mentioned. The prosecution examined two witnesses viz., complainant and mashir and produced Chemical Analyzer's report. The learned trial Judge, after considering the evidence and the statement of the appellant co-'accused recorded under section 342, Cr.P.C., convicted the co-accused Behram for offence punishable under section 9(b) of Control of Narcotic Substances Act, 1997 and sentenced him to suffer R.I. for 2 years and fine of Rs.25,000 or in default thereof to suffer RI for 2 months. Whereas the appellant was convicted for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to suffer imprisonment for life and fine of Rs.300,000 or in default thereof to suffer R.I. for 6 months with benefit of section 382-B, Cr.P.C., under the impugned judgment dated 11-5-2005. The co-accused Behram has not filed appeal to challenge his conviction and sentence. Whereas the appellant has filed the present appeal.

4. The learned Advocate for the appellant has argued that the offence in respect of the appellant was committed within the territorial jurisdiction of Karachi for that no F.I.R., was lodged; that' the Excise, Police of Hyderabad had no jurisdiction to investigate the case being beyond the territorial jurisdiction of Hyderabad District; that the CNS Court at Hyderabad had also no jurisdiction to try the offence as it was committed in Karachi beyond the territorial jurisdiction of Hyderabad. Therefore, the impugned judgment may be set aside.

5. The learned A.A.-G. has conceded the above position and has further added that when the property was secured from Karachi, the Excise Police were required to have lodged the F.I.R., at Karachi; that the entry made at the Excise Office at Karachi South should have been treated as F.I.R. and the case should have been investigated by the Excise Police Karachi. However, he has stated that if the case is investigated by the officer who is not competent to do so then the proceedings before the Court cannot be vitiated but the same can continue before a Court of competent jurisdiction. He has further stated that the offence of possessing 260 kg. Charas was committed within the territorial jurisdiction of Karachi, therefore, the case should have been challaned and tried by Special Judge (CNS), Karachi, as such, the Special Judge (CNS), Hyderabad had no jurisdiction to try the case, therefore, he has requested that the case may be remanded and it may be ordered to be tried at Karachi.

6. We have given due consideration to the arguments, gone through the evidence with the assistance of learned Advocate for the appellant and found that the arguments submitted by the learned Advocate for the appellant and A.A.-G. have great force. The F.I.R., reveals that the appellant was involved as a conspirator in respect of possession of 200 grams with co-accused Behram, therefore, at the most he should have been tried for the said offence at Hyderabad. From the evidence it is clear that the raid was conducted on the house of the appellant on 23-11-2001 situated in Jamshed Quarter, Karachi as per mashirnama Exh.13/B. As such, a different and distinct offence from that of offence committed by co-accused Behram at Hyderabad was committed within the jurisdiction of Karachi, therefore, a separate F.I.R., should have been lodged at Karachi. However, the Investigating Officer reported such matter and made such entry in the station diary of Excise Police Office South Karachi. That station diary should have been treated as F.I.R. and matter should have been investigated by the Excise Police of Karachi but it appears that the complainant Mumtaz Ali Narejo, Excise Inspector Hyderabad' took upon himself and brought the accused and the property to Hyderabad and challaned the appellant along with Behram in the Court at Hyderabad. His action to that extent was not permissible under the law. He committed irregularity and illegality in taking out the property and accused from the jurisdiction of Karachi where offence was committed. In such circumstances, he should have handed over the accused and the property to the Excise Police of Karachi and was not required to bring them to Hyderabad.

7. Nevertheless, when the case was challaned the trial Court at Hyderabad should have examined the same. While framing the charge, the trial Court must have come to know that the property was secured from Karachi beyond the territorial jurisdiction of Hyderabad, as such, a different and distinct offence from that of accused Behram was committed, therefore, the Court should have not tried the appellant at Hyderabad for the possession of property which was secured at Karachi. Thus; the trial of the appellant in respect of above mentioned property was coram non judice at Hyderabad. As such, the impugned judgment is set aside. The case is remanded for retrial of the appellant. As the Court at Hyderabad has no jurisdiction to try the same, therefore, we transfer the case from Special Judge (CNS), Hyderabad to Special Judge-I (CNS), Karachi for de novo trial in accordance with law from the stage of charge. The appeal is allowed in the above terms.

8. We found that the complainant had exceeded his jurisdiction, therefore, the Secretary, Excise & Taxation Department should look into this matter and take appropriate action against the complainant in accordance with law so that it should be an eye-opener for others as the accused has suffered mentally, physically, financially and agony of trial of six years. N.H.Q./A-27/K?????????????????????????????????????????????????????????????????????????????????? Case remanded.