2006 PLP 610 (MLD)

SH. ABDUR RASHID, J.

Bashir Ahmad appellant was arrested in case F.I.R. No.347, dated 18-8-2003, under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Saddar Raiwind, District Kasur with the allegations that Khalil Ahmad, A.S.-I., of the said police station had apprehended him and recovered from his possession 1050 grams of Charas. Upon completion of the investigation, report under section 173, Cr.P.C. had been submitted against him. Thereafter, the appellants father submitted an application before the District Police Officer, Kasur alleging that Khalil Ahmad, A.S.-I. had made out a fake case against him by planting the narcotic substance and during the investigations conducted by the superior police officers, it was found that false recovery had been planted upon the appellant by Khalil Ahmad, A.S.-I. Subsequently, the said A.S.-I. had also been arrested in this case and a report under section 173, Cr.P.C. that he had committed offence under section 9(c) of the Control of Narcotic Substances Act, 1997 had been submitted against him as well. The appellant filed an application under section 265-K, Cr.P.C. seeking his acquittal on the ground that he had been falsely challaned. Vide impugned order dated 20-10-2004, the Additional Sessions Judge/Judge Special Court, Kasur dismissed the appellant's application. Feeling aggrieved this appeal has been filed.

2. Both the sides have been heard at length and the record perused. It is borne out from the record that in the subsequent report under section 173, Cr.P.C. it had been positively alleged that the narcotic substances had been planted by Khalil Ahmad, A.S.-I. upon the appellant, and the same was not recovered from him and consequently the case was recommended to be cancelled against the appellant. Since the charge had already been framed against the appellant, therefore, the case could not be cancelled, which constrained the appellant to file an application under section 265-K, Cr.P.C. The trial Court has failed to appreciate that in the subsequent report under section 173, Cr.P.C. it had been positively alleged that the narcotic substance was planted by Khalil A Ahmad, A.S.-I. and in the trial of the said A.S.-I., this narcotic substance will be exhibited against him, leaving no other narcotic substance to be exhibited on the file, if trial of the appellant is held. Therefore, the appellant's trial is only going to be an exercise in futility and wastage of the time of the Court as well as of the prosecution.

3. The State by submitting the subsequent report under section 173, Cr.P.C. against Khalil Ahmad, A.S.-I., does not support this case against the appellant, therefore, by accepting this appeal, we set aside the impugned order, allow the appellant's application under section 25-K, Cr.P.C. and acquit him of the charge. The appellant is on bail and stands discharged of his bail bonds. H.B.T./B-6/L?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.