P L D 2003 Supreme Court 916 (PLP)

4. The trial Court after conclusion of trial, vide judgment dated 5-7-2002, convicted petitioner Shakeel Ahmed Siddiqui and co-accused Imran Ameen, under section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced each of them to suffer imprisonment for life and also to pay fine amounting to Rs.100,000 each, or in default of payment of the said fine to suffer further R.I. for six months, with benefit of section 382-B, Cr.P.C. However, co-accused Syed Asif Ali Shah and Haji Ramzan were acquitted.

5. Feeling aggrieved, respondent challenged his conviction and sentence before the High Court, through appeal. During pendency of the appeal, he moved an application under section 428, Cr.P.C. with the prayer that he may be allowed to examine Brigadier (Retd.) Mukhtar Ahmed, the then Regional Director-General of Anti-Narcotics Force, as witness in his defence mainly on the ground that since the registration of the case his stand has been that case has been falsely foisted upon him; that Imran Ameen co- accused being his friend induced him allowing to keep/dumps cartons in a room of his house, which actually contained Charas therein. Respondent did not know this fact at all. The pretext of Imran Ameen for keeping the cartons in the room of the respondent was that his own apartment was situated on the third floor of his building and it was not convenient for him to keep the same therein. Respondent further believed the statement of Imran Ameen that the cartons were containing some parts of vehicles/trucks, therefore, respondent allowed him to keep the same in the room of his house, where after respondent proceeded to Hyderabad in connection with his private affairs and when he returned back to his house he found a foul smell coming out from the said cartons, upon which he came to know that material inside said cartons was Charas. Thereafter, respondent immediately informed Brigadier Mukhtar Ahmed on mobile phone to that effect. On his information the Anti Narcotics Force Officials arrived at his house and the Charas was recovered from there on his pointation. He also disclosed that he narrated the said fact to them as to how and in what manner said Charas came to be kept in his house by Imran Ameen, but even then the concerned officials falsely involved him in the case. Notice of the aforesaid application was given to the Special Prosecutor of ANF and after hearing the counsel for the parties, the learned High Court allowed the application filed by the respondent vide impugned order dated 27-3-2003, hence this petition.

6. Learned counsel for the petitioner, inter alia, contended that the impugned order of the learned High Court is against the settled norms of law of criminal justice, the learned Court did not appreciate the law and facts of the case, the impugned order is not tenable and the petition may be allowed.

7. We have considered the points raised by learned counsel for the petitioner and minutely examined the material available on record. The sole plea of the respondent is that he was not aware of the fact that cartons contained Charas, which were kept in the room of his house by his friend Imran Ameen in good faith, but when he came to know that cartons contained Charas he immediately informed the concerned officers including Brigadier Mukhtar Ahmed, the then Regional Director-General of Anti Narcotics Force. The application of the respondent under section 428, Cr.P.C. was rightly considered by the High Court and after analysing and examining the available record the same was allowed. It would be advantageous to reproduce here the provisions of section 428, Cr.P.C. which read as under:-- "

428. Appellate Court may take further evidence or direct to be taken.--(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court and such Court shall thereupon proceed to dispose of the appeal. (3) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV as if it were an inquiry."

8. The person, who is to be examined on Oath, is a responsible Government officer and his evidence will be considered by the Court after due scrutiny as required under the law. The mere acceptance of application by the High Court in its judicial discretion vested by law, is not to be held as against the law and the principles of criminal jurisprudence. The learned High Court keeping in view the urgency of the matter has also observed as under:-- "Accordingly, this application is hereby allowed and direction be issued to the learned trial Court to examine Brigadier Mukhtar Ahmed as D.W. of Shakeel Ahmed Siddiqui appellant, as directed under section 428, Cr.P.C. and then to return back the Record and proceedings to this Court for the purpose of further hearing of these appeals which shall be deemed to be pending in this Court for such purpose. The learned Special Prosecutor is hereby directed to produce Brigadier Mukhtar Ahmed in the trial Court on 12-4-2003, and on the other hand such summons be directed for his appearance before trial Court on the said date to be served upon him through the Director-General of ANF, Karachi. R & Ps of the case of the learned trial Court be sent back to it which shall be returned back to this Court on completion of recording of evidence of said D.W. alongwith report by the trial Court to that effect. Such proceedings be completed by it within a period of three weeks from the date of receipt of this order. Application stands allowed."

9. In view of the facts, circumstances and the provisions of section 428, Cr.P.C., referred to hereinabove, we are of the considered opinion that the learned High Court has considered the entire material in its proper perspective, the impugned order is based on the principles of law laid down by this Court, which does not call for interference by us.

10. Resultantly, this petition is dismissed and leave to appeal declined. M.B.A./S-305/S Petition dismissed.