2020 P Cr (PLP)

LAL JAN KHATTAK, J.

This criminal appeal is directed against the order dated 23.2.2017 of learned Judge, Special Court (CNS) Peshawar, whereby application of the appellant for his acquittal under section 265-K, Cr.P.C. has been dismissed.

2. Brief facts of the case are that on 22.09.2011, Sub-Inspector Mushtaq Ahmad of Police Station ANF, Peshawar received information regarding smuggling of narcotics to Australia. In order to foil the bid, he reached Dry port Peshawar along with other police personnel and found there a person, standing beside some cots intended to be exported, who disclosed his name as Gul Anwar. On cursory enquiry, he admitted presence of heroin in the wings of the cots. Pursuant to the disclosure, the complainant dissected the cots' wings and found therein heroin which on weighment turned out to be seven (07) kilograms. According to the prosecution, accused Gul Anwar further disclosed to the investigating agency that the case contraband was that of Muhammad Shafique (absconder) who had called him to his office as he wanted to smuggle it to Australia and sought his help in clearing the consignment. It is the prosecution case that at the time of discussion between Gul Anwar and Muhammad Shafique appellant Abdul Ghani too was present in the office of Muhammad Shafique and as such he was privy to the attempt of smuggling.

3. After his indictment, the appellant moved application under section 265-K of Cr.P.C. which was turned down by the learned trial Court whereagainst he has filed the instant appeal.

4. Arguments heard and record gone through.

5. Perusal of the case record would show that the only material in the case against the appellant is that co-accused Gul Anwar, now acquitted, during investigation of the case had divulged to investigating officer of the case that in presence of the appellant co-accused Muhammad Shafique had sought his help to clear the consignment for Australia wherein the case contraband was being smuggled. It is worth to mention that ibid disclosure was made by Gul Anwar when the investigating officer recorded his 161, Cr.P.C. statement. Apart from the referred statement, there is no other material on the case file which could show any connection of the appellant with the foiled bid of smuggling the contraband.

6. In the circumstances narrated above, question before the Court would be that whether without recording any evidence in the case the appellant can be acquitted? In our considered opinion, the answer lies in yes as the language of section 265-K of Cr.P.C. envisages that nothing in Chapter XXII-A of the Criminal Procedure Code, 1898 shall prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of the charge.

7. On the touchstone of the above, if we look at the prosecution case it would appear that the appellant has only been implicated in the case on the statement of acquitted co-accused Gul Anwar recorded under section 161, Cr.P.C. which on no count is admissible in evidence. Barring the above, there is no other material on the case file which could show the appellant's nexus with the smuggling bid.

8. It reveals from examination of the case record that there is no slim chance or any probability of the appellant being convicted in the case as there is no supportive material with the prosecution to prove his involvement in the case except the 161, Cr.P.C. statement of the acquitted co-accused, which has no legal worth and cannot be made a foundation for recording any conviction, hence further proceedings in the case would be nothing but a futile exercise which must be curbed under section 265-K, Cr.P.C.

9. For what has been discussed above, this appeal is allowed, the impugned order is set aside and resultantly the appellant is acquitted of the charge levelled against him. SA/62/P Appeal allowed.