ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Cr. Misc. Appln. No.D-296 of 2011.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

04.9.2013.

For katcha peshi.

Mr. Abdul Rahman A. Bhutto, advocate for the applicants.

Mr. Naimatullah Bhurgri, State Counsel.

O R D E R.

Abdul Malik Gaddi, J.- Through this criminal miscellaneous application, applicants ASI Shafi Muhammad Bangwar and PC Muhammad Moosa have assailed the legality and propriety of the judgment dated 30.11.2011, passed in Special CNS Case No.36/2011, re State versus Sardar Khan Pathan, arising out of crime No.229/2011, under Section 9(b) of Control of Narcotic Substances Act, 1997 of Police Station Kashmore, whereby the learned Special Judge, CNS, Kashmore at Kandhkot while extending the benefit of doubt acquitted accused Sardar Khan and passed remarks/observations against applicants ASI Shafi Muhammad Bangwar and PC Muhammad Moosa (prosecution witnesses in the said case), which is only impugned before us and for the sake of convenience it would be proper to reproduce the said remarks, which read as under :-

“I further order that since the complainant and recovery mashir have falsely implicated the accused in crime and they have managed a case against him and they were in possession of narcotic substance and foisted the same upon the accused, I thus order that let the case be registered against complainant ASI Shafi Muhammad Bangwar and recovery mashir P.C Muhammad Moosa, for keeping the narcotics substance, lodging false F.I.R and giving false evidence before Court.”

2. The facts in brief giving rise to the present criminal miscellaneous application are that the applicants at the relevant time i.e., on 04.9.2011 were serving as Assistant Sub-Inspector and Police Constable at Police Station Kashmore respectively. During the performance of duties they apprehended the accused Sardar Khan and secured 200 grams charas from his possession, as such, the case was registered by complainant against accused under Section 9(b) of Control of Narcotic Substances Act, 1997 and after usual investigation challaned the case in the Court of learned Special Judge, CNS, Kashmore at Kandhkot.

3. The depositions of the applicants were recorded before the trial Court, however, finding inconsistency in the evidence recorded during trial, the learned trial Court acquitted the accused under Section 265-H(i), Cr.P.C. While acquitting the accused learned trial Court in its judgment dated 30.11.2011 observed that from contradictory statement of the applicants/P.Ws it has been proved that charas was foisted upon the accused by the complainant and mashir (the applicants before us), hence this case.

4. We have heard Mr. Abdul Rahman A. Bhutto, learned Counsel for the applicants and learned State Counsel.

5. It has been contended by learned Counsel for the applicants that the learned Special Judge exceeded his jurisdiction by passing order of registration of F.I.R against the applicants. He further contends that order of registration of F.I.R against the applicants was not warranted by law as, according to him, the applicants have performed their duty in accordance with law. In support of his arguments he has relied upon case law reported as Shafi Muhammad Bhangwar and 3 others v. The State, PLD 2012 Sindh 527.

6. Learned State Counsel while half-heartedly arguing the matter has supported the remarks / observation recorded by the learned trial Court in the judgment dated 30.11.2011. However, he was unable to point out any provision of the Control of Narcotic Substances Act, 1997 under which the trial Court recorded such observations/remarks against the applicants/official witnesses. The learned State Counsel has also not produced any case law in support of his contention.

7. We have examined the contentions and perused the order passed by the learned Special Judge, CNS, Kashmore at Kandhkot.

8. Perusal of judgment dated 30.11.2011 passed by the learned trial Court shows that accused Sardar Khan involved in Special Narcotics Case No.36/2011 was acquitted of the charge of possessing narcotic substance by giving benefit of doubt; thus perhaps learned trial Court for such reason formed an opinion that charas produced before the Court was in fact in possession of applicants and they have foisted the same upon accused. Resultantly, the learned trial Court passed order for registration of F.I.R against applicants. We have not been able to persuade ourselves to concur with the opinion formed by the learned Special Judge, as we find absolutely no basis for forming such an opinion. Besides, the order was passed against applicants in their absence and without notice to them, as such, the applicants were condemned unheard, therefore, on this score also the remarks recorded by the learned trial Court are not tenable under the law. In any case, if there was a lapse on the part of prosecution, even then Narcotic Substances Act being special law did not provide for issuance of direction for registration of F.I.R against applicants/official witnesses; thus in the circumstances we hold that Special Judge, Narcotics, acted beyond the jurisdiction.

9. In view of our finding as discussed above, this criminal miscellaneous application is allowed. As a result, operative part of the impugned judgment regarding direction for registration of the case against applicants is unwarranted and illegal, which is hereby expunged.

10. This criminal miscellaneous application stands disposed of in the above terms.

JUDGE

Qazi Tahir/*