2006 PLP 1834 (YLR)

ASIF SAEED KHAN KHOSA, J.

The appellant is one of the accused persons in case F.I.R. No.1 registered at Police Station, Anti-Narcotics Force, Lahore, on 10-1-2005 for an offence under section 9(c) read with section 15 of the Control of Narcotic Substances Act, 1997. After completion of the investigation a challan has already been submitted in this case which is presently pending before the learned Judge, Special Court (Control of Narcotic Substances), Lahore. The appellant had submitted an application under section 265-K, Cr.P.C. before the learned trial Court seeking his premature acquittal but that application of the appellant was dismissed by the learned trial Court vide order dated 27-9-2005. Hence, the present appeal before this Court.

2. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have gone through the relevant record of this case with their assistance. It has straightaway been noticed by us that the appellant had not been arrested at the spot and admittedly no narcotic substance had been recovered from his possession during the investigation of this case. According to the F.I.R. itself the raiding party had not identified or named the appellant on its own and the appellant had been implicated in this case on the basis of an alleged disclosure made by the arrested co-accused of the appellant namely Muhammad Shahid. While admitting the appellant to post-arrest bail the learned trial Court itself had observed in its order dated 30-3-2005 that "The petitioner stands implicated in this case on the statement of co-accused which is inadmissible in evidence." We have further observed that in the F.I.R. it had been mentioned that the members of the raiding party could identify the fleeing culprits but admittedly no test identification parade has been held in this case so as to positively incriminate the appellant. In these circumstances we have found that the case against the appellant is indeed one of no legally admissible evidence at all and, thus, there is no probability of the appellant's conviction at the end of the day. The addition of ,section, 265-K to the Code of Criminal Procedure was meant to save such a person from the rigors of a trial but unfortunately the learned trial Court in this case had not kept that spirit of the provisions of section 265-K, Cr. P. C. before it while dismissing the appellant's application submitted in that regard. In the above mentioned circumstances of this case we have found that continued harassment of the appellant through a trial which is not likely to end in the appellant's conviction amounts to an abuse of the process of law as well as an abuse of the process of Court which cannot be allowed by us to be perpetuated. This appeal is, therefore, allowed, the impugned order dated 27-9-2005 passed by the learned Judge, Special Court (Control of Narcotic Substances), Lahore is set aside, the application submitted by the appellant under section 265-K, Cr.P.C. is accepted and the appellant is acquitted in the above mentioned criminal case. The appellant has already been admitted to bail by the learned trial Court. His bond and surety shall stand discharged. The passport belonging to the appellant and all the other articles taken into possession by the Anti-Narcotics Force, Lahore, from the appellant's custody during the investigation of this case shall be returned to the appellant forthwith. H.B.T./E-3/L Appeal allowed.