2004 P Cr (PLP)

Date of hearing: 12th March, 2003. Facts relevant to the matter in hand are as under:‑‑ On 6‑5‑2001, Muhammad Anwar, A.S.‑I. alongwith Muhammad Siddique, Maqsood Ahmed, Khalid Perwaiz, Constables, Muhammad Ashraf son of Nawab Din and Iftikhar Ahmad son of Mushtaq Ahmed was available on patrol duty in the Main Bazar of Shadab Colony, Faisalabad at about 1‑15 p.m. One undisclosed informer laid an information before Muhammad Anwar, A.S.‑I. that Muhammad Ramzan son of Abdul Rehman was selling Charas at Shadab Pulli and in case raid, is effected, promptly, then he can be apprehended. In pursuance of said information, he organized a raiding party and proceeded to the spot. Muhammad Ramzan was found selling Charas. On pointation of the said informer, he with the active help of his companion caught hold of Muhammad Ramzan. His personal search was conducted by him, in consequence of which a black bag containing Charas wrapped in polythene envelope was recovered from him. He was holding said bag in his hand at that time. On weighing Charas was found to be 1005 grams, out of which 20 grams were retained as sample to be sent to the Office of Chemical Examiner for analysis purposes. Currency notes of Rs.400 were also recovered from his pocket. It was the outcome of sale of said Charas. The recovered, items were taken into possession by Muhammad Anwar, A.S.‑I. through memo. (Exh.P.B.), duly attested by Iftikhar Ahmad and Muhammad Ashraf P.Ws. Muhammad Anwar, A.S.‑I. reduced the raid proceedings in the form of a complaint and dispatched the same to the police station for formal registration of a case. Accordingly, on receipt thereof at the Police Station Nausher Ali, A.S.‑I. drew up formal F. I. R. at 1‑50 p.m. on the same day.

2. Succeeding registration of the case, Muhammad Anwar, A.S.‑I. assumed the role of an Investigator of the matter. All that, was required to be done by him was to record statements of the alleged recovery witnesses and deliver the case property to the duty officer at the police station to be dealt with in accordance with law. He accordingly did so and prepared challan, which was put up under signatures of the S.H.O. before learned Sessions Judge, Faisalabad who made over the same to a learned Additional Sessions Judge for its disposal in accordance with law. The learned trial Judge initiated the trial proceedings, during course of which evidence of six prosecution witnesses stood recorded. It was at this stage that the learned A.D.A. pointed out to the Court that as raid had been effected by an A.S.‑I., so by dint of provisions of section 21 of the Control of Narcotic Substances Act, 1997, offences under sections 6/9(c) of the said Act, were not made out and a case under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order No.IV of 1979 was clearly made out. He requested that the case be made over to a learned Judicial Magistrate having jurisdiction in the matter for trial purposes. Accordingly, the learned trial Judge agreed with the proposition and sent the case to learned Sessions Judge for appropriate orders, who thereafter entrusted the case to a Judicial Magistrate vested with Section 30 power.

3. During pendency of trial, Abdul Rehman, father of the under trial prisoner, preferred an application before the Deputy Inspector General of Police, Faisalabad Range, Faisalabad, respondent No.1 stating therein that the case was absolutely false and requested for re investigation of the case through an independent, impartial, upright, straightforward police official. Respondent No.1 ordered A.S.P. respondent No.3 to re‑investigate the case, who accordingly set at the most daunting task of re‑investigation and after fullest evaluation of facts and circumstances of the case came to the conclusion that Muhammad Ramzan accused was innocent. He prepared a supplementary challan placing Muhammad Ramzan in Column No.2 and also sent detailed report of the event to respondent No. 1, who after going through his findings passed order, dated 1‑1‑2002, which ads as under:‑‑

4. The trial Court proceeded against Muhammad Anwar, A.S.‑I. petitioner on the basis of supplementary challan, as he was placed in column No.3 thereof. Now both the accused have to be tried side by de.

5. Feeling aggrieved of order, dated 1‑1‑2002 passed by respondent No. 1, the petitioner has approached this Court by filing the instant Constitutional petition to assail legality and validity of the said order. Accordingly, notice was issued to the State, which was a must learned Law Officer was also called upon to assist this Court in this otter.

6. Learned counsel for the petitioner submits that complete challan against Muhammad Ramzan accused was put up before the trial Court for an offence under Articles 3/4 Prohibition (Enforcement of Hadd) Order No.IV of 1979 on 8‑5‑2001 and that petitioner had investigated the said crime. Adds that the accused side then preferred an application for re investigation of the case before respondent No.1, who made over the same to respondent No. 3 for said purpose, that respondent No. 3 declared Muhammad Ramzan innocent and then submitted supplementary challan before the trial Court on 14‑9‑2001; that trial Court took cognizance of the case and proceeded to record evidence of three witnesses, namely, Nosher Ali (P.W.1), Akbar Ali, H.C. (P.W.2) and Muhammad Akram, Constable (P.W.3); that thereafter on 17‑10‑2001 trial Court recorded statement of Iftikhar Ahmed (P.W.4); that case property (Charas) was exhibited as P.2 and sale pride as P.1 through recovery memo. Exh.P.B.; that petitioner was examined as P.W.5 as Investigating Officer of the case; that respondent No.3 coming to know of this development brought this matter to the notice of D.I.‑G. through letters; that the petitioner had fabricated a false case against Muhammad Ramzan accused; that petitioner was then retired from service compulsorily and that respondent No. 1 issued letter No. 47.CC, dated 1‑1‑2002. Learned counsel in support of this writ petition submits that respondent No.1 did not keep in view the provisions of Article 28 of Prohibition (Enforcement of Hadd) Order No.IV of 1979. He ends his arguments with the submission that case of the petitioner was fully covered under the indemnity clause of Article 28 of Prohibition (Enforcement of Hadd) Order No.IV of 1979. Adds that case F property already stood exhibited before the trial Court and that entire proceedings initiated against the petitioner through the impugned order is void ab initio and illegal.

7. Learned Law Officer submits that provisions of Article 28 of the Prohibition (Enforcement of Hadd) Order No.IV of 1979 are not applicable to the facts and circumstances of this case, as it is to be tried under the control of Narcotic Substances Act, 1997; that the case in hand was investigated by a senior Police Officer, who came to the conclusion that Muhammad Ramzan had been falsely implicated in the case by Muhammad Ansar, A.S.‑I., that he directed the Investigating Officer to place him in Column No.2; that thereafter Deputy Inspector‑General of Police Faisalabad Range, ordered that Rana Muhammad Anwar be tried as an accused in that very case; that the challan has been put up before the trial Court placing Muhammad Ramzan in Column No.2 thereof as he was given a clean slate by A.S.P. respondent No.3, whereas Rana Muhammad Anwar has been placed in Column No.3 of the challan sheet; that 'proceedings under section o7, Cr.P.C. were also set on by the trial Court against the petitioner; that petitioner confronted with this situation moved his application for grant of bail before arrest before a learned Additional Sessions Judge, at Faisalabad, which was dismissed for non prosecution on 18‑4‑2002; that he then approached the High Court seeking same relief, but also failed to put up appearance there and his application was accordingly dismissed. He ends his arguments with the submission that this writ petition is not maintainable under the law because petitioner was declared proclaimed offender on 18‑3‑2002 by a Judicial Magistrate at Faisalabad, which is the trial Court, so he is not entitled to the grant of any relief through invoking writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

8. Both the sides have been heard at length. There is a growing tendency amongst senior most police officials to overlook mistakes/lapses committed by their subordinates during course of investigation of cases and for that reason they go unpunished. This factually becomes a source of indignation to the persons concerned. The high‑ups, of the police department are considered to be the best protectors of their subordinates that has become the order of the day, but there have been freaks in the history of investigation of heinous crime, when senior police officials become prosecutor of their own subordinates. This case, of course, tells the story of such a freak. On 6‑5‑2001, Muhammad Anwar, A.S.‑I. petitioner alongwith others was performing the patrol duty in the main Bazar of Shadab Colony, Faisalabad. On receipt of secret information that Muhammad Ramzan, son of Abdul Rehman, was busy in selling Charas at Shadab Pulli, he rushed to the spot and apprehended him. He allegedly recovered Charas weighing 105 grams alongwith cash amount of sale proceeds to the said Narcotic Substance. He challaned him. F.I.R. bearing No. 196, dated 6,5‑2001, under sections 6/9 of the Control of Narcotic Substances Act, 1997 stood registered at his instance with Police Station Jhang Bazar, District Faisalabad. Abdul Rehman, father of Muhammad Ramzan accused feeling aggrieved of the hostile attitude of the petitioner, preferred an application before Deputy Inspector‑General of Police, Faisalabad Range, Faisalabad narrating story of sufferings of his son, Muhammad Ramzan, who had been maliciously and falsely implicated in the afore‑mentioned case. Chief grievance of Abdul Rehman was that his son had been murdered and killers were being supported by, the petitioner. He endeavoured a lot to bring about compromise in between Abdul Rehman and killers of his son. Muhammad Anwar‑petitioner was not honoured by Abdul Rehman. Muhammad Anwar petitioner while posted as A.S.‑I. became vindictive and taking advantage of his position fabricated narcotic case against Muhammad Ramzan. All this had been done illegally to bring the complainant of the murder case to kneel before the accused: Accordingly, investigation was conducted by Waseem Ahmed, S.D.P.O. of Peoples Colony Circle. who after discrete investigation came to the conclusion that case against Muhammad Ramzan was false, that it has been registered in absolutely false premises and all that has been alleged in the F.I.R. by the petitioner was a patent falsehood. For ready reference, copies of the application filed by Abdul Rehman and order passed thereon by the Deputy Inspector‑General of Police are placed on file of this writ petition. Muhammad Ramzan was extricated from the charge of possessing narcotic substance, and was ordered to be placed in Column No.2 of the challan sheet. Muhammad Anwar petitioner, who had performed investigation was found to be the actual culprit and was ordered to be placed in Column No.3 of the supplementary challan, resulting from re‑investigation of the case. According to learned counsel for the petitioner, this order was patently illegal, void ab initio, and of no legal effect, because after submission of challan, re‑investigation could not have been made. I have given, my anxious thought to this aspect of the matter. I am well‑guided by a most illuminating judgment reported as Muhammad Yousaf v. The State and others 2000 SCMR 453 + 2000 PSC/Crl.

197. In this case Investigating Agency was directed to complete re investigation and submit its report to the trial Court within a period of four weeks. Trial Court was further directed to await for the second report and should proceed on receipt of the same in accordance with law. I am of the firm view that no legal bar exists on re investigation of case even after submission of final report under section 173, Cr.P.C. and police was competent under the law to carry out fresh investigation and submit its report to the Court. In these circumstances, I hold that order, dated 1‑1‑2002 was perfectly legal and no interference is called for.

9. The challan was put up before the learned Sessions Judge, who made over the same to a learned Additional Sessions Judge for its disposal in accordance with law. During pendency of trial, the learned Prosecutor brought it to the notice of the trial Court that by dint of application of section 21 of Control of Narcotic Substances Act, 1997 this Court has no jurisdiction to try this case and the same be entrusted to a Court of Magistrate for conclusion of trial. Provisions of section 21 (ibid) do not envisage that if the case has been registered or investigated by an Assistant Sub‑Inspector, then the trial will be held by a Magistrate and not by a Special Court constituted under the said Act. It was also argued by the learned Prosecutor that the case falls within the provisions of Articles 3/4 of Prohibition (Enforcement of Hadd) Order No.IV of, 1979. The said learned Additional Sessions Judge being influenced by this argument sent the case to the learned Sessions Judge for an appropriate order. Thereafter, the learned Sessions Judge without looking into the relevant legal provisions proceeded to send the case to a learned Magistrate for its disposal. Supplementary challan is also pending before the same Court. Anyhow, I will have to see whether trial by a Magistrate in a case, which is registered under sections 6/9(c) of Control of Narcotic Substances Act, 1997 for possessing 1005 grams of Charas could be ordered to be tried by a Magistrate under Articles 3/4 of Order IV of 1979 simply for the reason that case was registered and investigated by an Assistant Sub‑Inspector. By dissecting the decision of the august Supreme Court of Pakistan reported as The State through Collector of Customs v. Naseem Amin Butt and others 2001 SCMR 1083, 2001 PCTLR (SC) 988, which covers all material aspects of this case, I am of the firm view that under the proviso to section 72 of Act No.XXV of 1997, all offences relating to Narcotics drugs psychotropic substances or controlled substances etc. are to be tried under this Act, notwithstanding anything contained in the Customs Act, 1969 or any other law, and Special Court created under this Act had the exclusive jurisdiction to try these offences, to the exclusion of any other Court under any law. I deem it essential to direct the learned Sessions Judge, Faisalabad to withdraw this case from the file of learned Magistrate and conclude the trial himself. Reference may advantageously be made to case Mahmood Khan v. The State 2002 PCr.LJ 1402. As the case is to be tried by learned Sessions Judge/Special Court, created under the Control of Narcotic Substances Act, 1997, so the petitioner cannot claim indemnity under Article 28 of the Prohibition (Enforcement of Hadd) Order No.IV of 1979.

10. I would now like to throw light on another point, which has cropped up in this case. It is clear that now two theories propounded by the police officials have been put before the Court, pertaining to the same offence and pertaining to the same victim, one giving one version against, one accused and the other giving another version against a different accused/petitioner, what procedure has to be adopted. In such cases, the most appropriate procedure to be acted upon by a Sessions Judge should be that the two trials should be separately conducted, one after the other and judgments in both the cases by separately pronounced on the same day. The learned Sessions Judge, would exercise much care that he would confine his judgment in one case only to the evidence produced in that particular case. I am confident that more than one prosecutors are available at Faisalabad. It would also be advisable that the Prosecutor who prosecuted one case, should avoid prosecuting the other case.

11. The crime of fabricating false evidence and false cases against innocent persons has become dangerously frequent in our country, which of course has to be taken care of by the Courts and the senior most officials. I am constrained to hold that trial of the petitioner is legal. No interference is called for. This petition has no merits and is accordingly dismissed. H.B.T./M‑2210/L Petition dismissed: