1. Two F.I.Rs,, one being 3 of 2004 and other being 4 of 2004 were registered at Police Station ANF, Sukkur on 12-6-2004. The present applicants are nominated as accused persons in F.I.R. No, 3 of 2004 and one Zulifqar Ali and another person was nominated in F.I.R. No,4 of 2004. Since F.I.R. No, 4 of 2004 ultimately resulted in Criminal Revision Application No, 52 of 2006 decided by this Court on 21-12-2006 and facts have been reproduced in that order, dated 21-12-2006 and are as under:-- "Briefly, the facts of the prosecution case are that on 12-6-2004 at 1730 hours at Chowk Al-Abbas, Railway Station Road, Larkana, Inspector Sher Ali Shah Sherazi, Station House Officer, Anti-Narcotic Force, Police Station Sukkur intercepted two cars coming from the side of Kazi Petrol Pump. One was Honda Civic of white colour bearing registration No,712 and the other, Suzuki FX of Khakhi colour bearing registration No,H-8602. One Ghulam Nabi Jamali was driving the Honda Car and the present applicant was sitting by his side on the front seat. Two bags of Charas weighing 50 kilograms were recovered from it. The driver of the other car was Gulzar Ahmed Bhutto, while Suhrab Bhutto was sitting by his side on the front seat. Two bags of Charas weighing 80 Kilograms were recovered from it. Two cases, one bearing No,3 of 2004, regarding recovery of 50 Kgs. Of Charas from the Honda Car, and the other bearing No,4 of 2004 regarding recovery of 80 Kgs. Of Charas from the Suzuki Car, were registered at the Police Station and two separate charge-sheets were filed in Court showing all the four occupants of the two cars as accused in each case. The trial Court charged the applicant in both the crimes i.e. Crime No,3 of 2004 and Crime No,4 of 2004 and by its impugned order, dated 1-11-2006 refused to treat him as accused only in Crime No,3 of 2004."
2. ' Thereafter the revision application was allowed for the following reasons:-- "The main contention of applicant's advocate was that there was nothing to show that he had any connection with the Charas recovered from the other car (Suzuki FX) as neither he is shown to be owner or possessor of the said car nor to have any relation, with its occupants and nor there was any evidence to show that the Charas belonged to him. The learned Special Prosecutor, on being specifically asked, failed to show any evidence to connect the applicant with the Charas recovered from the Suzuki Car. Merely because the two Cars had reached there together, it cannot be said that occupants of one car were responsible for possessing or transporting Charas recovered from the other Car. In law there is no scope for such an assumption. In absence of any evidence having been collected against him to show that he had any connection with the other car or with its occupants or with the Charas in it, the applicant cannot be charged and tried for possession or transportation of Charas recovered from it.
3. ' Thus, in absence of any evidence against him, the trial Court was not justified in charging the applicant with the offence of possessing and transporting 80 Kg of Charas recovered from the Suzuki Car. Accordingly, the impugned order, dated 1-11-2006 refusing to amend the charge is set aside and the applicant is discharged in the case based upon crime No,4 of 2004 of Police Station Anti-Narcotic Force, Sukkur regarding recovery of Charas from the Suzuki Car and the revision is allowed."
4. The present applicants were nominated in F.I.R. No,3 of 2004. The application under section 265-K, Cr.P.C. Was filed before the Court of Special Judge (Narcotics) Larkana and that applicant was dismissed by order, dated 11-8-2007. Being aggrieved by that order, this Criminal Miscellaneous Application No,145 of 2009 was filed.
5. ' Right at the beginning learned Special Prosecutor stated that Criminal Miscellaneous Application under section 561-A, Cr.P.C. Is not maintainable because the order passed by the Court below. Was a revisable order and therefore Criminal Revision Application would have been maintainable.
6. Although title of the application is "under section 561-A, Cr.P.C." but in the body of the application, it is repeatedly stated that it is revision application and the prayer is also made for calling of record and proceedings of the impugned order and setting aside of the same and allowing of the instant revision application. Consequently, this Criminal Miscellaneous Application is treated as Criminal Revision Application and is decided as such.
7. ' Learned counsel for the applicants submitted that the applicants were in one Car and those accused in F.I.R. No, 4 of 2004 were in the other Car. No link or connection between the two cars has been shown and that was the reason that this Court in Criminal Revision Application No,5 of 2006 ordered discharge of applicants in that case in respect of F.I.R. Against applications (F.I.R. No,3 of 2004). He submitted that same benefit, though vice versa should be given to the present applicants and they should be discharged from F.I.R. No,4 of 2004.
8. ' Learned Special Prosecutor, ANF read from the challan where Ghulam Nabi one of the accused in F.I.R. No,4 of 2004 stated during investigation that few days earlier Zulifqar Ali, the second accused in F.I.R. No,4 of 2004 came to him and told him that a party in Karachi wanted to purchase 200 kilograms Charas and with that party bargain has been struck for 130 Kilograms. On the day of the incident both the cars were going for delivery of the quantity of Charas when they were caught in the way. He referred to section 14 of the Control of Narcotic Substances Act, 1997 and contended that two cars were going for a common purpose and therefore present applicants are not entitled to be discharged from F.I.R. No,4 of 2004 and consequently supported the order of the Court below.
9. ' Exercising his right of reply, learned counsel for the applicants submitted that the order passed by this Court in Criminal Revision Application No,52 of 2006 on 21-12-2006 has not been challenged by the prosecution and therefore has been accepted by them. Consequently, he submitted that point that has not been raised by the prosecution in that revision application cannot be raised by the prosecution in this application.
10. ' We have considered the submissions made by the learned counsel and have also gone through the order passed by this Court on 21-12-2006 as well as the record. In our opinion the linch pin of the order passed by this Court on 21-12-2006 was, in the words of the Court "absence of any evidence having been collected against him to show that he had any connection with the other car or with its occupants or with the Charas in it". It was on this basis that the order was passed on 21-12-2006. Statement of co-accused Ghulam Nabi given during investigation which statement is referred to above had not been brought to the notice of that Bench which passed order on 21-12- 2006 and therefore as far as this particular aspect of Ghulam Nabi's statement is concerned the order of the Bench passed on 21-12-2006 is an order subsilention. Contention of Mr. Ghanghro that it is only a statement by a co-accused would be something for the trial Court to consider when evidence is recorded and to decide it thereafter. At this stage neither the trial Court nor this Court can say that statement of Ghulam Nabi should be totally ruled out of consideration. Consequently, this Criminal Revision Application is dismissed.