ORDER SHEET
IN
THE HIGH COURT OF SINDH, KARACHI
Criminal Acquittal Appeal No.27 of 2013
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Date Order with signature(s) of Judge(s)
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1)
For orders on M.A. No.635 of 2013 (U/A)
2)
For orders on office objection and reply
of Advocate
3)
For orders on M.A. No.636/2013 (Ex/A)
4)
For Katcha Peshi
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07.02.2013
Mr. Habib Ahmed, Special Prosecutor, ANF
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1)
Granted.
2)
Deferred for the time being.
3)
Exemption application is allowed subject to
all just exceptions.
4)
Notice to the Respondents for a date in
office.
Mr. Habib
Ahmad, Special Prosecutor ANF, contends that the respondent/accused Arshad Iqbal upon recovery of 9
Kg. of heroine was arrested on 21.06.1994 and Crime No.04/1994 under Articles
3/4 of the Prohibition (Enforcement of Hadd) Order,
1979, was registered against him at P.S. ANF, Karachi and after completion of
investigation final report was submitted on 04th July 1997 in
Sessions Case No.292/1994. It is contended that during the trial respondent was
admitted in hospital from where he managed to escape and since 11th October
1995 he was absconding and was fugitive from law leading to issuance of
red-warrants. It is further contended that on 21.04.2010 NBWs with open date
were issued to ANF authorities to cause arrest of the accused. Accused Arshad Iqbal was declared as
proclaimed offender by Court, proceedings under sections 87-88 Cr.PC were concluded against him. Evidence of Muhammad Riaz,
Inspector CNS, was recorded by learned Sessions Judge Karachi South in terms of
section 512 Cr.PC on 28.10.1996 and proceedings were
kept on dormant file vide order dated 18.11.1998. On 15.05.2012 SHO P.S. ANF,
Karachi, moved an application for issuance of NBWs against absconding accused.
Learned Sessions Judge Karachi South in his order dated 15.05.2012 observed
that Prohibition (Enforcement of Hadd) Order, 1979
has been superseded by the Control of Narcotics Substance Act 1997 and ordered
for sending the case to the Special Court, CNS-I, Karachi and directed the
Inspector Ghulam Abbas Memon
to pursue his application before the Court of Special Judge CNS-I, Karachi, for
issuance of fresh warrants against accused Arshad Iqbal.
In section 49 of the Control of
Narcotic Substances, Act 1997, procedure for transfer of the cases has been
provided as under:
“49. Transfer of cases.—(1)
Where more Special Courts than one are established within the territorial
jurisdiction of a High Court, the High Court may, by order in writing, transfer
a case, at any stage, from one Special Court to another Special Court in
accordance with section 526 of the Code as if the Special Court was a Court of
Sessions.
(2) On the establishment of Special Courts
under section 45 and 46, all cases where the sentence of an offence is two
years or less, shall stand transferred to the respective Special Court
comprising a Judicial Magistrate of the First Class and all other cases to the
respective Special Courts comprising of Sessions Judge of Additional Sessions
Judges.
(3) Notwithstanding anything hereinbefore
contained, a remand may be granted by the nearest Special Court comprising a
Judicial Magistrate of the First Class.”
Accused Arshad
Iqbal voluntarily appeared in the Court of Special
Judge, CNS-I, Karachi on 12.10.2012 and was remanded to Jail with direction to
be produced on 20.10.2012. On 20.10.2012 for want of time, the case was
adjourned to 22.10.2012 for framing of charge. On 22.10.2012, without framing
of the charge accused Arshad Iqbal
was acquitted by the learned Judge, Special Court CNS-I, Karachi under section
265-K Cr.PC. From perusal of the order dated
22.10.2012 it transpires that the Special Public Prosecutor ANF was not heard
and finding of the Judge, Special Court CNS-I, Karachi that I.O. had
disappeared after his dismissal from service, was not sufficient and legally
recognized ground for acquittal of the accused Arshad
Iqbal under section 265-K Cr.PC.
The evidence of Inspector Muhammad Riaz recorded on
28.10.1996 in absence of accused was already on record.
Under section 265-K Cr.P.C, Court may acquit an accused at any stage of the
case, if after hearing the prosecutor and the accused and for the reasons to be
recorded, it considers that there is no probability of the accused being
convicted of any offence.
From the perusal of the order dated
22.10.2012 passed under section 265-K Cr.P.C, it
appears that Respondent/accused Arshad Iqbal was acquitted after receipt of R & Ps within 10 days,
without hearing the prosecutor and without recording sound reasons. Even there
is no finding that there was no probability of the accused being convicted in
the offence. Accused/Respondent had escaped from the judicial custody and was
fugitive from law for about 17 years. Court under garb of section 265-K Cr.PC cannot deprive prosecution from providing opportunity
to produce evidence. Learned Judge Special Court CNS-I, Karachi has apparently
committed illegality by acquitting respondent Arshad Iqbal under section 265-K Cr.PC
inasmuch as adopted a procedure which was not in accordance with law. Learned
Sessions Judge, Karachi South, has also committed illegality by sending R &
Ps to the Judge, Special Court CNS-I, Karachi “AS DESIRED” by him, which reflects from his letter lying in the R
and Ps.
Let copy of this order be placed
before Honourable Chief Justice, to consider action
against the concerned Presiding officers if deemed fit.
JUDGE
JUDGE
Gulsher/PA