IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Misc. Application No. 749
of 2023
(Fawad Ahmed Khan vs. The State)
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE |
Present: Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Zulfiqar Ali Sangi
14.05.2024
Mr. Muhammad Nawaz advocate for applicant/accused
Mr. Habib Ahmed Special Prosecutor ANF
-.-.-.-.-.-.-.-.
Naimatullah Phulpoto, J.- Through this
Criminal Misc. Application, applicant/accused Fawad Ahmed Khan has called in
question order dated 30.08.2023 passed by learned Special Court-II (CNS)
Karachi in Special Case No.822/2018 arising out of Crime No. 08/2018 for
offence under Section 9(c) of the CNS Act 1997 registered at PS ANF Clifton
Karachi, whereby application under section 265-K Cr.P.C moved on behalf of
applicant/accused Fawad Ahmed Khan was dismissed.
2. Notice of this application was issued
to the Special Prosecutor ANF and progress report was called from trial Court.
3. Learned advocate for the
applicant/accused mainly contended that applicant/accused has been involved on
the basis of statement of co-accused Abrar Ahmed. It is submitted that no
incriminating material was collected by the I.O during investigation against
the applicant/accused to connect him in the commission of the offence. He also
submitted that there is no progress in the trial. Lastly, submitted that there
is no probability of conviction of the applicant/accused in this case.
4. Mr. Habib Ahmed Special Prosecutor ANF
argued that applicant/accused Fawad Ahmed Khan was in contact with main accused
Abrar Ahmed. I.O found sufficient material against the applicant/accused and
submitted report in which he found prima facie material against the applicant/accused.
It is further argued that trial is in progress and there is every possibility
that applicant/accused will be convicted in this case. Lastly, Special
Prosecutor ANF submitted that prosecution may be allowed to produce call data
and other material during trial to substantiate the case.
5. We have carefully heard learned counsel
for the parties and perused the impugned order dated 30.08.2023 passed by trial
Court. It appears that learned trial Court dismissed application under section
265-K Cr.P.C mainly for the following grounds:
“7. The other main plea of the learned
counsel for applicant/accused that name of applicant/accused was disclosed by
the co-accused persons. As per charge sheet name of applicant/accused was
disclosed by arrested accused persons. Moreover, charge against the
applicant/accused along with other accused persons was framed on 07.12.2021,
thereafter to accused namely Abrar Ahmed and Nadeem were pleaded guilty and
they were convicted vide judgment dated 13.09.2022. Another namely Shahid Ali
Khan (who was employee in airport) also pleaded guilty and he was convicted
vide judgment dated 13.10.2022. Admittedly both the arrested accused persons
namely Abrar Ahmed and Nadeem had pleaded guilty and they were convicted,
therefore, at this stage the evidence of complainant/I.O Inspector Mohammad
Hasan Khoharo is very much material and the said complainant/I.O. the Court
cannot come to the conclusion that there is no probability of accused is being
convicted.”
6. It is the case of prosecution that on
18.04.2018, SHO PS ANF Clifton Karachi arrested accused Abrar Ahmed and Nadeem
at Domestic Arrival Launch, JIAP, Karachi and recovered 30 K.G charas from
trolley. According to the Special prosecutor ANF, in this case main accused
Abrar Ahmed disclosed that applicant/accused Fawad Ahmed Khan provided
facilitation to him and I.O found him in contact with accused Abrar Ahmed. On
the basis of that, I.O found prima facie case against applicant/accused and report
was submitted before trial Court and cognizance was taken by the trial Court.
At this stage, it cannot be held that there is no probability of conviction of
the applicant/accused in this case. Even otherwise, it is right of prosecution to
produce the evidence, subject to cross-examination by accused, then, it is for
the trial Court to appreciate such evidence according to settled principles of
law. Progress report submitted by trial Court shows that co-accused Abrar
Ahmed, Nadeem Khan and Shahid Ali Khan plead guilty to charge. Charge has already
been framed. At this stage, there is no merit in the above application, the
same is dismissed. However, trial Court is directed to decide the case within
one month under intimation to this Court. Office is directed to return R&Ps.
JUDGE
JUDGE
Wasim
ps