P L D 2012 Sindh 527 (PLP)

SALAHUDDIN PANHWAR, J.--Through this criminal miscellaneous application the applicants have assailed the impugned judgment dated 08.5.2012, passed in Special Case No.20/2011, (Re: St. v. Masood Shar), in Crime No.7 of 2011 Police Station Haji Khan Shar, under section 9(c) of the Control of Narcotic Substances Act, 1997.

2. The relevant facts of the case are that on 31-5-2011, at 1100 hours, complainant along with subordinate staff was on patrolling, when they reached near Sachal diversion, found one person suspected. During his personal search, 1100 grams Charas was recovered; proceedings were completed and case was challaned before Court of learned Special Judge (CNS), Kashmore @ Kandhkot.

3. Record further reveals that prosecution examined four witnesses (applicants), whereas nominated accused also examined D.Ws: Rab Nawaz and Abdul Latif. Consequently, impugned judgment was announced by the Special Judge (CNS), Kashmore @ Kandhkot and nominated accused was acquitted of the charge. While acquitting the nominated accused, learned Special Judge (CNS), Kashmore draw inference as under: "I, further order that since the complainant ASI Shafi Muhammad Bhangwar, PWs: H.C. Shakir Ali, PC Darya Khan and I.O. Bashir Ahmed Khoso have falsely implicated accused in crime and they have managed a case against him and they were in possession of narcotic substance and foisted the same upon the accused. I, thus order that let the case be registered against complainant ASI Shafi Muhammad Bhangwar, PWs. H.C. Shakir Ali, PC Darya Khan and I.O. Bashir Ahmed Khoso, for keeping the narcotic substance, lodging false F.I.R. and giving false evidence before Court. Copy of this judgment be sent to the Superintendent of Police Kashmore @ Kandhkot and Deputy Inspector General of Police, Division Larkana, for registration of case against the above named police officers and also for taking departmental action against them, under intimation to this Court."

4. Learned counsel for the applicants has inter alia, argued that direction given through impugned judgment is illegal and same is not provided under the law; Special Judge while issuing direction of lodgment of F.I.R. has not issued show cause notice to the applicants, therefore, the applicants have been condemned un-heard; the procedure adopted by the trial Judge has no value in the eyes of law. Learned counsel has relied upon un-reported judgment dated 3-5-2001, passed in C.P. No.D-118 of 2001, by this court.

5. Learned State Counsel has not controverted to the legal and factual grounds raised by the learned counsel for the applicants and does not support to the impugned judgment.

6. Heard the learned counsel and perused the record.

7. We have examined the relevant provisions of the Control of Narcotic Substances Act, 1997, and have not found any provision relating to penal clause which empowers the Special Court that, if prosecution fail to prove the charge against accused, the special court will be competent to register the case against complainant and prosecution witnesses under Narcotics Act. However section (s) 193, 194 and 195 of P.P.C., provides penal clauses regarding false evidence in judicial proceeding, but concerned court has to justify the circumstances which warrants legal action against complainant and witnesses regarding giving false evidence or fabricating false evidence. It is also ratio of precedents that show cause notice is required under the law before initiating criminal proceedings and same will meet the spirit of "fair trial" as envisaged under Article 10A of Constitution of Islamic Republic of Pakistan 1973 . We have also examined the judgment (supra) relied by the learned counsel for the applicants, the same is identical to this case, facts are almost same, wherein Special Judge (CNS), Larkana, while acquitting the accused nominated in Narcotic Case No.66 of 1997, issued direction for lodgment of F.I.R. against complainant and prosecution witnesses. That judgment was challenged before this Court and while accepting that petition this Court observed that:-- "in any case if there was a lapse on the part of the prosecution that Act (viz. the Control of Narcotic Substances Act), itself does not provide for issuance of direction to register F.I.R. against an Excise official. The Special Court Narcotics has been constituted and created under the Special Statue and the said Act does not empower the learned Special Judge to issue any direction for lodging of the F.I.R. while passing any judgment in a Narcotic case". And in question judgment was set aside to the extent that direction for lodgment of F.I.R. is illegal.

8. After examination of relevant provisions and precedents we have examined impugned judgment and evidence recorded during trial which reveals that nominated accused Masood was acquitted by giving the benefit of doubt, as it was opined by the trial Court that prosecution has miserably failed to prove charge against accused beyond reasonable doubt, resultantly, the said accused was acquitted. It is also fact that learned trial Judge has not assigned the reasons in respect of direction of registration of the case against complainant and prosecution witnesses regarding false evidence during trial. It has also come on record that the applicants were condemned un-heard, no show cause notice (s) were issued against the applicants regarding false evidence or negligence if any committed by them such course adopted by trial court is un-warranted under the law and against the norms of justice and idem is in violation of basic principle of law falling within the scope of maxim "Audi Alteram Partem" (no one should be condemned unheard). Without any hesitation, it is suffice to say that no sufficient material was available against the applicants to make out a prima facie case against the applicants to arraign them.

9. Keeping in view the facts and circumstances of the instant case and dictum laid down by this Court, operative part of impugned judgment regarding direction of registration of case against complainant and prosecution witnesses and I.O. is un-warranted under the law, thereby we modify the impugned judgment to that extent and quash the proceedings against the applicants.

10. This criminal miscellaneous application was allowed by our short order dated 29-8-2012, whereby observations recorded by the learned Sessions Judge/Special Judge CNS, Kashmore @ Kandhkot, were quashed/expunged, and these are the reasons for the same. MWA/S-61/K Application allowed.