1. ' MUZAFFAR ALI, J.--- This revision petition impugns vires of order, dated 18-9-2006, passed by learned Special Judge, A.N.F., whereby the learned Special, Judge has refused to frame charge against the above named respondents, for want of his territorial jurisdiction and also discharged the respondents, holding, that no evidence is available on the file under F.I.R. No,10 of 2006 of Police Station A.N.F., Gilgit against the respondents.
2. ' The facts gave rise to this revision petition, before this Court may be summarized as, that A.N.F.
3. Police Gilgit arrested accused Miss Zhaogin, a citizen of China, at Sust Check Post Gilgit and lodged F.I.R. No,10 of 2006 against her, alleging recovery of 800 grams of heroin from her possession; which as per prosecution allegations was being smuggled from Pakistan to China. The said lady accused, during interrogation by the A.N.F. Police, allegedly stated before the Police, that she has been supplied, the recovered heroin by the. Respondents at Islamabad. The A.N.F. Police after getting permission from the learned Special Court Gilgit, proceeded to Islamabad along with the accused Miss Zhaogin in their custody and arrested 9 persons including respondents out of which accused.
4. Andy Chukudi Obi is now in judicial lock-up at Adiala Jail Rawalpindi, but brought 8 of them, to Gilgit in police custody. The respondents including the main accused were sent to judicial lock-up and the challan was put into the Special Court. At this juncture, it is pertinent to note, that the A.N.F.
5. Police Gilgit alleged, that during the raid, they recovered 2000 grams of heroin from the possession of the respondents at Islamabad, but instead of lodging a separate F.I.R. Against the respondents at Police Station Islamabad, the A.N.F. Police wanted, the respondents to be charged for the said offence too, in the Special Court Gilgit, under the same F.I.R. No,10 of 2006 by claiming benefit of section 179, Cr.P.C.
6. ' The learned Special Judge, Gilgit vide order-sheet 7-9-2006, directed the parties to the case to argue, the point of jurisdiction of the learned Special Court Gilgit to frame charge against the respondent and consequently, the learned Special Judge came to the conclusion that, neither the alleged 2000 grams of heroin has been recovered from the possession of the respondents, within the territorial jurisdiction of the learned Special Court, nor the respondents have supplied 800 grams of heroin to the accused Miss Zhaogin allegedly recovered from her possession at Sust Check Post as such, the learned Special Judge refused to frame charge against the respondents under F.I.R. No,10 of 2006 and also discharged the respondents holding no evidence to be on the record of the case against the respondents, hence this petition.
7. ' I heard counsel for the parties and also invited legal assistance of the learned Advocate-General as well as the senior Advocates Malik Haq Nawaz and Jamal Khan as Amicus Curiae. The learned counsel for the petitioners attacked the impugned order with the points as under, that:--
(a) No separate F.I.R. In Islamabad was required to be lodged, against, the respondents for the recovery of 2000 grams of heroin from their possession for the reason.
8. ' That under sections 179 and 180, Cr.P.C., the learned Special Court, is well competent to take, cognizance of the above offence.
(b) Respondents have supplied 800 grams of heroin to the accused Miss Zhaogin in Islamabad, which was recovered from her possession at Sust Check Post in Gilgit as such reondents were also accused of abetment under section 14 of the Control of Narcotic Substances Act, 1997, (hereinafter called the Act) in the case under F.I.R. No,10 of 2006 and the trial of the respondents, for the said offence, after framing charge against them, was well within the jurisdiction of the Special Court, Gilgit under sections 179 and 180, Cr.P.C., but the learned Special Judge has ironically held lack of jurisdiction, therefore, the impugned order is not tenable in the eyes of law and liable to be set aside.
9. ' In response to the above points, the learned counsel for the respondents urged that:--
(a) The alleged recovery of 2000 grams of heroin from the possession of the respondents during the raid by the A.N.F. Police Gilgit, if for arguments sake presumed to be true, then too, it was an independent offence committed in Islamabad as such it does .Not come within the ambit of the case under F.I.R. No,10 of 2006 lodged in A.N.F. Police Station Gilgit and the learned Special Court has no jurisdiction to frame charge against the respondents for the said offence. Sections 179 and 180, Cr.P.C. Are wrongly referred by the learned counsel for the petitioner. The learned Special Court has not violated any provision of law, by holding that he has no jurisdiction to frame charge against the respondents, hence, the impugned order need not to be interfered by this Court.
(b) That there is no iota of evidence available on the record of the case to prove, supply of 800 grams of heroin by the respondents to the accused Miss Zhaogin and for arguments sake, if it is presumed to be proved, then too, the learned Special Judge in Gilgit has no jurisdiction to try the case against the respondents as, the prosecution story reveals that the supply of the illegal substance was made to the accused in Islamabad and not in Gilgit.
10. ' I have gone through the above points raised by both the learned counsel and also looked into the relevant law with the intention to find out a legal answer to the above points. Section 177, Cr.P.C.
11. Contemplates ordinary territorial jurisdiction for competency of taking cognizance of criminal cases to try them. It provides that every offence ordinarily shall be enquired in and tried by a Court within the local limits of whose jurisdiction it was committed. This section lays down the general principle of territorial jurisdiction of the Courts in Pakistan. On the other hand sections 179 and 180, Cr.P.C. Provide exceptions to the general principle of territorial jurisdiction of the Courts if offences or an offence comes within the ambit of two sections. So I am going to discuss section 179, Cr.P.C.
12. First.
13. ' The bare reading of the section transpires the following prerequisite of its application into a case,
(a) This section applies when the act done and the consequences ensuing therefrom jointly constitute the offence (b) such offence may be inquired into or tried by a Court within the limits of whose jurisdiction any such act has been done or any such consequence has ensued. (c) This section would not apply when the act or omission is a complete offence itself, irrespective of any' consequence, which has ensued. Likewise the prerequisites of section 180, Cr.P.C. Are as such, that.
14. ' This section purports (a) an act committed becomes an offence by reason of its relation to any other act which is also an offence or (b) which would be an offence if the doer were capable of committing of offence (c) a charge of the first offence may be tried or inquired into by a Court within the local limits or whose jurisdiction either act was done for instance "A" provides a pistol to "B" in Islamabad and also instigates him to kill "C" in Gilgit, "A" comes with the pistol to Gilgit from Islamabad and kills "C" with the same pistol, the Sessions Judge, Gilgit may frame charge against "A" for instigation and abetment of murder of "C" and he is well-competent to try the same.
15. Keeping in view the above discussion about sections 179 and 180, Cr.P.C., if I look into the "case of recovery of 2000 grams of heroin" it does not come within the ambit of either of the above sections.
16. The recovery of 2000 grams of heroin, from the 'possession of the respondents, during the raids by the A.N.F. Officials in Islamabad is an independent offence .Under Narcotic Laws, it is neither an act done nor the consequence ensued therefrom, together constitute the offence under F.I.R. No,F0 of 2006. The offence is also not an offence by reason of its relation to the offence under F.I.R. No,10 of 2006, hence the offence is a complete and an independent offence committed in Islamabad, as such, I am in consonance with the opinion of the learned Special Court, that the respondents may not be charged for the said offence under F.I.R. No,10 of 2006 by extending benefit of either of the above sections. The offence could be registered separately in Islamabad, if so advised.
17. ' As far the alleged offence of the respondents to supply 800 grams of heroin to the accused Miss Zhaogin is concerned, prima facie, from the plain reading of the challan of the case No,10 of 2006 and without going into the merits of the case, it falls under section 14 of the Act and also comes within the ambit of sections 179 and 180 of the Cr.P.C. And it is 'an abetment if proved, hence the Special Court has jurisdiction to take cognizance of the above case against the respondents. At this stage, it is pertinent to differentiate between "taking cognizance or jurisdiction of a matter" and "deciding the same on merits after taking cognizance of the matter i.e." mere allegation in any complaint, F.I.R. And challan are required to be looked into, to determine issue of jurisdiction and once a Court takes cognizance of a case, then the Court is empowered to acquit the accused, if charge is not made good by the evidence or even the Court can discharge an accused after or before framing charge against, if, the evidence is inadmissible or insufficient on the record.
18. ' It is evident from the perusal of the impugned order, that the learned Special Judge has confused the above two different aspects of the case. For instance, in page 2 of the impugned order, the learned Judge holds as:-- "The offence allegedly committed by above named (8) accused was committed in Islamabad and this Court has no jurisdiction to try the case of said accused. Even for arguments sake if it is admitted that the above named accused supplied 800 grams of heroin to accused Zhaogin resulting to occurrence, this Court has no jurisdiction to try the said accused.
19. ' But on the same page in its operative part, the learned Special Judge holds as under:-- ' Above named accused discharged from the case of occurrence of F.I.R. No,10 of 2006 of Police Station A.N.F. Gilgit holding that there is no evidence showing any abetment committed by the above named (8) accused in commission of the offence of occurrence of F.I.R. No,.10 of 2005 of Police. Station A.N.F. Gilgit.
20. ' The first observation of the learned Special Judge clearly shows, that the learned Special Judge has come to the conclusion that, the Court has no jurisdiction to take cognizance against the respondent. So the learned Special Judge has refused to take cognizance of the same, but at the same breath, the learned Special Judge entered into the merits of the case by discharging the respondents from the alleged offence of abetment for having no evidence. In my opinion; the learned Special Judge was functus officio to discharge the respondents after holding the matter beyond his jurisdiction, indeed, he could discharge the respondents even before framing charge against the respondents by exercising his powers under section 265-K, Cr.P.C. But after taking cognizance of the same, holding, the same to be in his jurisdiction.
21. ' The conclusion of the above discussion is that the learned Special Judge has jurisdiction under sections 179 and 180, Cr.P.C. To take cognizance of the alleged offence of abetment under section 14 of the Act, against the respondents for supplying 800 grams of heroin to accused Miss. Zhoagin.
22. The impugned order is partially set aside to the extent of discharging' the respondents from alleged offence of abetment under section 14 of the Act. The respondents/accused present in the Court are ordered to be taken into custody and remanded to judicial lockup as under-trial prisoners. They be produced before the Special Judge, Gilgit on 2-10-2006 for further proceedings, but before parting with the judgment I appreciate valuable legal assistance of learned Advocate- General, Malik Haq Nawaz and Mr. Jamal Advocates as amicus curiae in this case.