' IJAZ AHMAD CHAUDHRY, J.---Through this revision petition, the petitioner, who is one of the accused in case F.I.R. No. 9 of 2001, dated 27-11-2001 registered under section 9(c) read with 15 of Control of Narcotic Substances Act, 1997, has called in question the vires of order, dated 9-6-2004 passed by the learned Additional Sessions Judge, Multan whereby different applications submitted by the petitioner have been dismissed.
2. Briefly the facts of the case are that on 27-11-2001 the Regional Director ANF Punjab, Lahore received spy information that international Smugglers of Narcotics, namely, Haji Noor Islam, Malik Pervaiz, Mushtaq Malik alias Black Prince, Ahmad Radowala, Mian Idrees, Ahsan Pervaiz and Malik Abdul Rauf were present in house No.2 Allah Bakhsh Colony, Shamshadabad, Multan for smuggling huge consignment of Charas and on conducting raid the said gang could be apprehended whereupon a raiding party under the command of Major Shamshad Hussain Dar, Acting Joint Director was constituted which conducted raid on the said house and found five persons, namely, Malik Pervaiz, Mian Muhammad Idrees, Ahmad Pervaiz, Abdul Rauf and Abdul Rehman while present there. Out of them Malik Pervaiz, Mian Idrees and Ahsan Pervaiz were busy in packing Charas in big cartoon. On checking the said carton found to be containing six bundles of Charas and each bundle was measuring 20 kilogram. On pointation of the said accused persons the raiding party further recovered 269 bundles of Charas measuring 20 kilogram each and as such total recovered Charas came to be 5500 kilogram. Twenty grams of Charas was separated from each bundle by the Investigating Officer for chemical analysis and made into sealed parcel besides the total recovered narcotic substance. The Investigting Officer also took into possession Honda Civic Car No.42/LXL, Honda Sunny No.8383/MNX, white colour Nissan Sunny 1941/MNR and Suzuki Carry Van No.9594/MNB light blue colour. Hence this case was registered and during the investigation of the case it came to light that as per record of Dry-port relating to Customs Department a consignment of 5 tons Charas was already exported under Bill Export No.0233, dated 11-6-1998 by the accused, namely, Mian Idrees, Ahmad Rado Wala, Pervaiz Malik, Rashid Malik alias Rashid Mauzzam and Haji Noor Islam under the guise of Multan Fabrics in the wake of preparation of fake documents thereof.
3. After the investigation incomplete challan was submitted in the learned trial Court on 16-3-2002 and then supplementary challen was submitted on 27-5-2002 while declaring Ahsan Pervaiz accused as approve': under section 337, Cr.P.C. The accused were summoned and on 14-12-2002 the copies of the documents as required under section 265-C were supplied to them. Then on 26- 3-2004 all the eleven accused including the petitioner were charge-sheeted. In the meanwhile, Malik Rashid Mauzzam co-accused moved an application under section 265-K, Cr.P.C. For his acquittal which was dismissed and Writ Petition No.362 of 2003 filed before this Court was also dismissed on 6-4-2004. The said co-accused also filed an Crl. Rev. No.140 of 2004 before this Court challenging the vires of charge framed against him and this Court vide order, dated 18-5-2004 on revealing that charge-sheet was framed in his absence declared it to be illegal and quashed it to the extent of him alone in the light whereof the learned trial Court has again charge-sheeted him on 8-6-2004. However, on 13-5-2004 when the case was fixed for prosecution evidence and certain witnesses were present, learned counsel for the petitioner submitted two applications i.e. One under section 227 read with sections 265-D, 235(2) and 337, Cr.P.C. And the other under Articles 3, 16 and 131 of Qanun-e-Shahadat Order, 1984 and section 337, Ci.P.C. On 28-5-2004 another application under Articles 3, 16 and 131 of Qanun-e-Shahadat Order, 1984 and section 337, Cr.P,C.
Was repeated on behalf of the petitioner, but his learned counsel requested for adjournment to argue the said applications on the ground that another accused Malik Rashid Mauzzam was not present which was turned down on the ground that the said applications were moved by the petitioner and not by the former. Fourth application was also moved by the petitioner on 28-5- 2004 for sending the case to the Court of Additional Sessions Judge, Lahore already seized with the criminal case re: The State v. Arif Baloch. All the said applications were dismissed by the learned Additional Sessions Judge, Multan vide order, dated 9-6-2004 and through the instant revision petition the vires of the same regarding dismissal of the former three applications have been challenged.
4. Learned counsel for the petitioner contends that there is no provision in the Control of Narcotic Substances Act, 1997 to tender pardon to any accused; that the case in hand being triable by learned Special Court does not fall within the category of cases postulated by section 337, Cr.P.C.
And, therefore, no authority, forum or Court was competent to tender pardon upon any accused facing trial under Control of Narcotic Substance Act, 1997; that orders, dated 4-5-2002 and 6-5- 2002 passed by the Acting District Attorney, Multan granting pardon to Ahsan Pervaiz co-accused were patently illegal, void and without jurisdiction and lawful authority; that Ahsan Pervaiz co- accused according to the prosecution own version was amongst the main accused and apprehended at the spot, therefore, there was no justification to grant him pardon; that at no stage of the proceedings before the learned Special Court, accused Ahsan Pervaiz was treated as approver rather he was categorized as accused and so much so he was also delivered copies as required under section 265-C, Cr.P.C. In his capacity as accused, which lead to an inference that he did not accept the pardon allegedly tendered to him; that it is a case of Hadd and in such like cases pardon cannot be tendered; that charge was not framed in a lawful manner inasmuch as two enactments i.e. Prohibition (Enforcement of Hadd) Order, 1979 and Control of Narcotic Substances Act, 1997 are in the field and it should have been decided after hearing the accused under which of two statutes or under both the accused are liable to be tried; as regards delay in challenging orders, dated 4-5-2002 and 6-5-2002 it has been contended that since both these orders were void ab initio, it was not obligatory upon the petitioner to challenge the same and more so these were actually ignored by the learned trial Court while not treating the said accused as approver and those were challenged in the presence of the accused, therefore, the same have been challenged after framing of the charge when the prosecution evidence was summoned, that the evidence to be rendered by Ahsan Pervaiz, alleged approver, would be inadmissible being .Incompetent P.W. As he continues to be an accused in this case.
5. On the other learned Prosecutor of ANF has supported the impugned order and emphasized that the petitioner is moving different applications in the learned trial Court with intent to linger on the trial.
6. We have heard the learned counsel for the parties and perused the record as well as the impugned order.
7. The contention of the learned counsel that there is no provision in the Control of Narcotic Substances Act, 1997 to grant pardon to any accused in misconceived as under section 47 thereof which read as follows:- "47. Application of the Code of Criminal Procedure, 1898.-Except as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of the death sentence) shall apply, to trials and appeals before a Special Court under this Act."
' The Criminal Procedure Code is applicable and the learned counsel of the petitioner has failed to point out any section whereunder the provisions of section 337, Cr.P.C. Have been barred under Control of Narcotic Substances Act, 1997. So . Far as the contention of the learned counsel for the petitioner that in Hadd cases pardon cannot be granted to any 6f the accused by declaring him as approver is concerned, suffice it to say that the instant case has been registered under sections 9(c) and 15 of Control of Narcotic Substances Act, 1997 and sentence thereunder is awarded as Tazir and not Hadd, therefore, this ground is also not available to the accused-petitioner. We also see no force in the argument of the learned counsel for the petitioner that no proper opportunity of hearing was given to the other accused on the said applications as the same were moved by the petitioner in his individual capacity and there was no necessity to hear the other accused, but the state was the contesting party and notice was duly served upon the learned Prosecutor.
8. Section 337, Cr.P.C. Specifically provides that in the case of any offence triable exclusively by the High Court or Court of Session or any offence punishable with imprisonment which may extend to ten years or other offences specifically mentioned therein officer-in-charger of the prosecution in the District, may at any stage of investigation or inquiry or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of this making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. Only embargo has been laid down in the proviso that in offences relating to hurt or qatl no person can be tendered pardon without permission of the victim or heirs of the victim. Subsection (1-A) provides that every Magistrate who tenders a pardon is bound to record his reasons for so doing; subsection (2) lays down that every person accepting a tender shall be examined as witness in the subsequent trial, if any; subsection (2A) empowers the Magistrate to commit such accused for trial to the Court of Session or High Court, as the case may be if there are reasons grounds for believing that the accused is guilty of an offence, and under subsection (3) such person unless is on bail shall be detained in custody until the termination of the trial. The said provisions do not provide that before tendering pardon to any of the accused there is any necessity to give notice or provide opportunity of hearing to the other accused involved in such occurrence. The copy of the statement supposed to be made by said approver at the trial has already been supplied to the other accused as it reveals from the supplementary challan that copies thereof were attached with it along with other documents, it will be premature to comment upon the competence of his evidence as he has still to be examined at the trial when the other accused will definitely be afforded opportunity to cross-examine him to dislodge his evidence and only after conclusion of the trial the effect of his evidence on the prosecution case can be adjudged by the learned trial Court.
9. Apart from above, the perusal of the record reveals that on 10-5-2002 an application was submitted the petitioner for recording his second statement under section 164, Cr.P.C. On the ground that earlier one was made under some inducement, fear and physical as well mental torture which was dismissed vide order, dated 22-5-2002. A perusal of the contents of the said application and the order leads to an inference that during the investigation the petitioner himself had offered to become an approver, but he was committed to face the trial. Under section 337, Cr.P.C. It is officer-in-charge of the prosecution in the District and under section 338, Cr.P.C. During the trial it is the discretion of the Court to tender a pardon on any person supposed to have been directly or indirectly concerned in, or privy to any such offence with a view of obtaining evidence and it cannot be claimed by any accused as of right. If Ahsan Pervaiz co-accused has been given pardon by the competent authority, it cannot be challenged by the petitioner or the other co- accused and they will be at liberty to cross-examine him. The contention of the learned counsel that Ahsan Pervaiz by his act ceased to be approver as he had received the copies of the documents as required under section 265-C, Cr.P.C. In his capacity as accused is untenable as there is nothing on the record to infer that he has resiled to become an approver and it cannot be left at the option of the co-accused to assess the admissibility or otherwise of the evidence of the approver, but it is the learned trial Court which will decide about it along with other evidence on the record. We also see nothing wrong in mentioning name of Ahsan Pervaiz in the columns of the accused as well as the witnesses because according to the offence committed by him along with others he is an accused and when pardon has been tendered to him for obtaining evidence he has to appear as a witness under subsection (2) of section 337, Cr.P.C. Moreover, his name has been mentioned in the columns of the accused who were not sent to face the trial. Merely because he also received copies of the documents as required under section 265-C, Cr.P.C. Along with the other co-accused cannot automatically change his status of approver. Articles 3, 16 and 131 of Qanune-Shahadat, 1984 are in no way helpful to the petition against Ahsan Pervaiz petitioner a neither it is case of the petitioner that he was incompetent witness having been declared by any Court nor it is a case of Hadd and Article 131 itself provides that it is the Judge to decide as to admissibility of evidence.
10. So far as framing of the charge under the provisions of Control of Narcotic Substances Act, 1997 is concerned, we do not find any illegality and see no force in the argument of the learned counsel for the petitioner that since Prohibition (Enforcement of Hadd) Order, 1979 has not so far been repealed, the alleged crime committed by the accused being punishable under the provisions of said Order the charge should be framed thereunder as section 74 of Control of Narcotic Substances Act, 1997 provides that if an offence punishable under this Act, is also an offence in any other law for the time being in force, nothing in that law shall prevent the offender from being punished under this Act and section 76 thereof lays down that the provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force. As such provisions of section 235(2), Cr.P.C. Do not attract and so far as section 227, Cr.P.C. Is concerned, there is no denial that that the Court is competent to alter or add to any charge at any time before judgment is pronounced. The contention that one of the accused was not present at the time of framing of the charge on 26-3-2004 by the learned trial Court and as such the charge was defective is no more available as the said illegality has already been rectified after decision of this Court passed in Crl. Rev. No.140 of 2004 on 18-5-2004 and said co-accused was charge-sheeted afresh on 8-6-2004. We are in agreement with the learned Prosecutor appearing on behalf of ANF that all such applications were made by the accused-petitioner in order to linger on the trial and flout the direction of the Hon'ble Supreme Court for expeditious disposal of the case within four months.
11. For the foregoing reasons, we do not find any illegality, perversity and jurisdictional defect in the impugned order which having been passed on valid reasons is maintained and this Crl. Revision being devoid of any merit is dismissed.
12. Before parting with this order, we are constrained to observe that the record was called for in this case vide order, dated 22-11-2004 and thereafter the case was adjourned for the reason that the requisite record have not been received. Today the learned Special Prosecutor informed this Court that the record had since been sent by the learned trial Court and in fact the proceedings in the learned trial Court are being adjourned on the ground that the record was requisitioned by this Court. The concerned official being summoned, Mr. Khalil Ahmad, Senior Clerk put in appearance who having been asked brought the record within minutes and upon a query has stated that the record had in fact been received and was lying in some almirah. The file sheet shows that the record was received in this Court on 14-12-2004.
13. The Deputy Registrar (Judi.) of this Bench is also present in Court. He is directed to hold an inquiry into the conduct of the said Senior Clerk along with other responsible officials and a separate file be accordingly prepared. The report to be filed before this Bench within a fortnight. He is also directed to ensure that the record is returned to the learned trial Court immediately.