2025 P Cr (PLP)

Muhammad Ayub Khan Tareen, J.

This appeal has been filed against the judgment dated 11th September, 2024 (hereinafter "the impugned judgment") passed by learned Special Judge, Control Narcotics Substance (CNS)/Additional Sessions Judge-V, Quetta (hereinafter "the trial Court"), in CNS case No.12/2024 whereby the respondent (accused) was acquitted of the charge in FIR No.15/2024 registered with Police Station Railway, Quetta.

2. Facts of the case are that on the basis of complaint/written report (Ex:Pw-1/A) submitted by PW-1 Sana Ullah Shah, a criminal case vide FIR No.15/2024 dated 9th June, 2024, under Section 9 (2) 6 of the Control of Narcotic Substances Act, 1997 (hereinafter "the CNS Act, 1997") was registered with Police Station Railway Quetta with the averments that today i.e. 09.06.2024 at 8:15 a.m., he along with other police officials were present at First Gate, Platform No. 1, Railway Station Quetta, for checking the passengers' luggage in view of the current situation; that he found a woman in suspicion condition, later identified as Ms. Mahfia Kausar wife of Mukhtiar Hussain resident of Model Town Fazilpur City, Tehsil and District Rajanpur; the said woman was searched/checked by the Lady Head Constable inside the packing counter, maintaining privacy; the woman was wearing a black and white floral Burqa over her almond colored floral Kameez; underneath, she had a white "Tehzeeb Knitwear" brand vest with two stitched pockets; from the pockets, four plastic boxes wrapped in white solution tape were recovered; upon opening, each box contained white crystal (Ice), a prohibited narcotic substance, packed in plastic shoppers; the same were immediately weighed using a digital scale; the recovered crystal (Ice) was taken out from the plastic Tiffin like boxes and each packet was weighing 500-grams total weighing 02 kilograms; the recovered contraband were taken into police custody and samples parcels were prepared for chemical analysis, hence this case.

3. On completion of investigation, Challan of the case was submitted before the trial Court, where charge was framed, to which, the accused/respondent did not plead guilty and claimed trial. The prosecution in order to substantiate the charge against the accused/respondent produced the following witnesses: PW-1 Sanaullah Shah S.I/SHO. He is complainant of the case and produced written report as Ex.Pw-1/A. PW-2 Javed Iqbal HC/Head Moharrar. He is witness of safe custody of alleged recovered crystal (ice). He received samples from the Investigating Officer and entered in the Registered No.XIX and sent for FSL and produced Register No. XIX as Ex.Pw-2/A. PW-3 Abdul Aziz, Head Constable. He is witness of seizure memo, who produced the same as Ex.Pw-3/A and Ex.Pw-3/B of alleged recovered crystal (ice), memo of conducting search of accused; and parcel No. 1-A to 4-A as Art-P/1 to Art-P/4, Parcel Nos.1-A, seal sample Art-P/5, Tiffin Art-P/6, Crystal Art- P/7, Parcel No.2-A its seal as Art-P/8, Tiffin Art-P/9, Crystal Art-P/10, Parcel No.3-A its seal as Art-P/11, Tiffin Art-P/12, crystal Art-/13, Parcel No.4-A its seal sample Art-P/14, Tiffin Art-P/15, crystal Art-P/16, white under garments Art-P/17, Burqa Art-P/18, mobile along with 02 sims Art-P/19, CNIC of accused Art-P/20, travel ticket Art-P/21 and cash amount of Rs.4000/- Art-P/22. PW-4. Shahid Ikram ASI/BDS. He appeared in Court and testified against the accused that after recovery of alleged crystal, he measured the recovered narcotics, sealed into parcel and handed over it to SHO. PW-5 Fahmida Parveen, Lady Head Constable. She is seizure memo witness who conducted body search and recovered crystal and verified her signature on seizure memo produced before Court by PW-3 as Ex.PW/3-A. PW-6 Abdul Hameed S.I. He is Investigating Officer (I.O) of the case, who produced FIR No. 15/2024, site map, Challan, FSL Report, Rahdari, memo of interrogation of accused as Ex.Pw/6-A to Ex.Pw/6-F and FIR No.377/2021 as Pw/6-G.

4. On completion of prosecution evidence, the accused/ respondent was examined under Section 342 Cr.P.C. who flatly refused and denied the allegations levelled against her. However, she neither opted to record her statement on oath nor desired to produce any evidence in her defense.

5. After concluding evidence and hearing arguments, the learned trial Court acquitted the accused/respondent of the charge vide impugned judgment dated 11.09.2024.

6. Being aggrieved and dissatisfied of the impugned judgment, the appellant/complainant has preferred the instant appeal before this Court.

7. We have reviewed the counsel's arguments for the appellant and examined the associated records. This appeal is directed against the judgment of acquittal issued by the Court of Special Judge under the CNS Act, 1997/Additional Sessions Judge Court-V. The case was initiated by Sub-Inspector/SHO Sanaullah Shah of Railway Police Station (Appellant) under sections 9 (2) and 6 of the CNS Act, 1997. It is contended that the respondent was apprehended and during a personal search, 2,000 grams of crystal were recovered. Following a formal investigation, the charge sheet was submitted; however, after a comprehensive trial, the accused/respondent was acquitted by the trial Court.

8. The complainant, dissatisfied with the acquittal order, engaged private legal counsel to contest the decision under section 417 (A-2) of the Code of Criminal Procedure (Cr.P.C).

9. At the time of presenting the appeal, the counsel for the complainant was questioned on several points: (1) Whether the complainant, in his capacity as SHO, has the authority to challenge the order of acquittal without prior sanction from the competent authority; (2) Whether a private counsel may file an appeal against acquittal in a State case without formal appointment as a Special Prosecutor, as mandated by law; (3) Whether an appeal against acquittal in the context of CNS Act is permissible under section 417 (A-2A); and (4) Whether the appeal has been filed within the appropriate time frame? And (5) Whether the trial Court has erred in law while acquitting the accused/respondent?

10. The learned counsel requested additional time to prepare a brief and assist the Court on the matters above.

11. However, during the subsequent hearing date of the appeal, the counsel failed to submit relevant citations or reference pertinent legal precedents, but asserted that the SHO, as the complainant, qualifies as an aggrieved person and is therefore entitled to file the appeal.

12. Firstly, we would like to address the contention from the counsel for the appellant regarding whether the SHO qualifies as an aggrieved person.

13. In various cases, the apex Court has defined an aggrieved person as one who has suffered a legal grievance, someone against whom a decision has been rendered that wrongfully deprived him of, refused him, or adversely affected his title to something. This person has a personal interest in fulfilling a legal duty, which, if not performed or done contrary to law, would lead to the loss of personal benefits, advantages, or the curtailment of a privilege, liberty, or franchise. In this case, while issuing the impugned judgment, the trial Court did not make any observations against the appellant that would deprive him of his legal rights protected under the law, nor did it result in a loss of personal benefits for the appellant. Therefore, the SHO/appellant does not fit the definition of an aggrieved person and cannot file an appeal against acquittal in offenses registered under the CNS Act, 1997 in his capacity.

14. The question regarding submission of an appeal by private counsel in cases registered under the CNS Act, 1997 is addressed in section 50 of the CNS Act, 1997. This section allows the Federal Government to appoint a Special Prosecutor authorized to conduct proceedings under the CNS Act before a Special Court. Additionally, subsection (1) of section 71 of the CNS Act, 1997 clearly states that the Federal Government may delegate all or any of its powers and functions under the Act, as it deems necessary or expedient, in favor of the Provincial Government, while subsection (2) of section 71 empowers the Provincial Government in this context. The counsel for the appellant is neither a Public Prosecutor appointed by the Federal Government nor by the Provincial Government, nor has he been authorized to submit an appeal against acquittal in cases registered under the CNS Act, 1997, therefore, the appeal filed by the private counsel is legally incompetent.

15. Though the provision of section 47 of the CNS Act, 1997 has made the Cr.P.C applicable "to trials and appeals before a Special Court under this Act," it indicates that only the procedures outlined in the Code of Cr.P.C apply to the trials and appeals specified in the CNS Act, 1997.

16. Additionally, section 47 has not transposed any remedy of appeal or revision from the Code of Cr.P.C to the CNS Act, 1997. Reliance is placed on the case of the State through Mehmood Ahmed Butt, Deputy Director Anti-Narcotics Force Lahore v. Mst. Fazeelat Bibi, PLD 2013 SC 361, wherein the Honourable Supreme Court has held as follows: We have found such an impression entertained by the learned Division Bench of the Lahore High Court, Lahore to be erroneous because the provisions of section 47 of the Control of Narcotic Substances Act, 1997 have made the Code of Criminal Procedure applicable "to trials and appeals before a Special Court under this Act" which shows that only the procedure provided in the Code of Criminal Procedure is applicable to trials and appeals provided for under the Act of 1997 and section 47 of the Act of 1997 has not transposed any remedy of appeal or revision from the Code of Criminal Procedure to the Act of 1997 ."

17. The question of filing an appeal under section 417 (2-A) of the Cr.P.C is invalid, as section 47 of the CNS Act, 1997 has not been transposed to provide a remedy for appeal or revision. The provisions of section 48 of the CNS Act, 1997 are comprehensive, encompassing all types of appeals related to any order issued by such a Special Court. It does not distinguish between an appeal against a conviction, an appeal against an acquittal, or an appeal seeking an enhancement of sentence. Reliance is placed on the judgment supra wherein it was held as under: "

4. The provisions of section 48(1) of the Control of Narcotic Substances Act, 1997 clearly and unambiguously contemplate an appeal to a High Court against an order passed by a Special Court comprising of a Sessions Judge or an Additional Sessions Judge and in the case in hand the learned Judge, Special Court, CNS, Lahore trying the respondent was a Sessions Judge. The right of appeal conferred by section 48(1) of the Control of Narcotic Substances Act, 1997 is all pervasive catering for every kind of appeal from every kind of order passed by such a Special Court and the provisions of section 48(1) of the Control of Narcotic Substances Act, 1997 do not make any distinction between an appeal against a conviction, an appeal against an acquittal or an appeal seeking enhancement of a sentence passed against a convict. The restrictive scope of section 48 of the Control of Narcotic Substances Act, 1997 visualized by the learned Division Bench of the Lahore High Court, Lahore confining it only to an appeal against conviction has been found by us to be offensive to the clear and unambiguous provisions of the said section and, thus, the same cannot be sustained or upheld by us".

18. Therefore, the appeal filed under section 417 (2-A) is not competent, and section 417 (2-A) does not apply when filing an appeal against acquittal in cases registered under CNS Act, 1997. Although the appellant has not submitted any request for condoning the delay, we would like to address the delay in filing the appeal. In this case, the impugned judgment was announced on 11.09.2024. The certified copy submitted with the appeal indicates that it was requested on 11.09.2024, was prepared on 18.09.2024, and was delivered on the same day. The appeal was filed on 19.11.2024, whereas it should have been submitted on or before 18.11.2024; the appeal is admittedly not within time. The legal position is that an appeal under section 48 of the CNS Act, 1997, against the findings of the Special Court before the High Court was required to be filed within sixty (60) days from the date of judgment in terms of Article 155 of the Limitation Act, 1908. Article 155 of the Limitation Act is reproduced below:

155. Under the same Code to a High Court, except in the cases provided for the Article 150 and Article

157. Sixty days The Date of the sentence or order appealed from.

19. Reliance is placed on the case of the State/Anti-narcotics Force through Assistant Director Law v. Judge, Special Court-I (CNS) Clifton Karachi, 2022 PCr.LJ 1506, where it was held as under: "

4. The legal position is that an appeal under section 48 of CNS Act, 1997 against the findings of Special Court before High Court dated 31.01.2012 was required to be filed within 60 days from the date of judgment/order in terms of Article 155 of the Limitation Act, 1908".

20. It is needless to observe that the lapse of time is sufficient, in criminal matters, to protect a person who has been acquitted against further judicial process. In the cases of Piran Ditta v. The State and others, 1970 SCMR 282 and Mst. Zeenat Sultan v. Mumtaz Khan and others, PLD 1994 SC 667, wherein the Hon'ble Supreme Court has held as under: "5 ..The convict might be placed once again in peril of his life by a petition of this kind, and it is for this reason that the technical requirement of limitation assumes importance. It is not too much to ask that he who seeks to place his fellow- citizens' life in peril, by legal process, should satisfy all the technical requirements of that process. The right to life is the basic right that human beings process. Once a charge for a capital offence, duly tried, results in acquittal, the accused person acquires a very precious right and he should not, therefore, be put in jeopardy of his life by a petition for leave to appeal filed out of time. The law that enables interference with the acquittal must, therefore, be strictly applied in favour of the accused person."

21. Therefore, the appeal also merits dismissal on the ground of limitation.

22. Aside from the legal position discussed above, the appellant has no case, not even on merit. A collective report of all the samples has been submitted, which contradicts the dictum established in Ameer Zeb's case PLD 2012 SC

380. Columns Nos.5 and 6 of Register No.XIX have been left blank and not signed by any authorized Officer; therefore, safe custody and transmission remain unproven. This has rightly been acknowledged by the learned trial Court, requiring no interference from this Court.

23. For the reasons stated hereinabove, the instant Criminal Acquittal Appeal is dismissed in limine. 109/Bal. Appeal dismisse