' ASIF SAEED KHAN KHOSA, J---The appellants are accused persons in case F.I.R. No,10 registered at Police Station Anti-Narcotics Force, Lahore on 11-3-2004 for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 which case is presently being tried by the learned Judge, Special Court (Control of Narcotic Substances), Lahore. The appellants submitted an application before the learned trial Court under section 265/K, Cr.P.C. Seeking their premature acquittal but that application of the appellants was dismissed by the learned trial Court vide order dated 3-1- 2005. Hence, the present appeal before this Court.
2. It has been argued by the learned counsel for the appellants that there is no legally admissible evidence available on the record so as to connect the appellants with the alleged offence and, therefore, their continued prosecution is nothing but an abuse of the process of law. As against that the learned counsel for the State has maintained that it shall be thrashed out by the learned trial Court as to whether the case against the appellants is one' of no evidence or nor and, therefore, it would be premature for this Court to examine the record of this case so as to find out as to whether there is any legally admissible evidence available against the appellants or not.
3. After hearing the learned counsel for the parties and going through the record of this case with their assistance We have straightaway observed that admittedly no narcotic substance had been recovered from the appellants' possession and that no word had been uttered by any of the prosecution witnesses in their statements recorded under section 161, Cr.P.C. Qua the appellants' involvement in the alleged offence. The only piece of evidence being relied upon by the prosecution against the appellants is in the shape of a statement allegedly made by a co- accused of the appellants during his custody with the investigating agency. In that statement the said co-accused had allegedly not only confessed his own guilt but had also implicated the present appellants. It is a settled proposition of law that a confession of an accused person before an Investigating Officer at a time when he is in custody of such an offence is inadmissible in evidence If such a statement of the co-accused of the appellants is inadmissible in evidence to his own extent then its evidentiary value is next to nothing vis-a-vis the present appellants. The Investigating Officer of this case is present before us in person and he has stated in so many words that apart from the confessional statement of the said co-accused of the appellants made during his custody there is no other material available on the record so as to connect the appellants with the alleged offence. In this state of the evidence available on the record there is hardly any occasion for prosecution of the appellants and there is no probability of the appellants' conviction.
This appeal is , there fore, allowed, the application submitted by the appellants before the learned trial Court under section 265-K Cr.P.C. Is accepted and the appellants are acquitted in the above mentioned criminal case. The appellants are present before us in handcuffs. They are not required to be detained in connection with any other case. Their handcuffs have been removed in the Courtroom and they have been set at A liberty, The passports and other articles of the appellants taken into possession by the Anti-Narcotics Force, Lahore in connection with the above mentioned criminal case shall be returned -to them forthwith.