' ABDUS SATTAR ASGHAR, J.--Dildar Hussain one of the accused of case F.I.R. No,4/2012 dated 19-1- 2012, in the offence under section 9(b) read with section 15 of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Lahore, through the instant appeal under section 48 of the Act ibid has sought setting aside of the order dated 9-4-2012 passed by the learned Judge, Special Court CNS, Lahore whereby his application under section 265-K, Cr.P.C. Seeking acquittal during the trial has been dismissed.
2. As per contents of the F.I.R. Lodged by Haroon Tariq, Inspector/S.H.O. Police Station ANF, Lahore on 19-1-2012, it is alleged that on spy information received by the higher authorities of ANF that Dildar Hussain (appellant) is a Drug Trafficker and that his agent Attique Ahmad Khan resident of Rawalpindi will try to smuggle heroin to Bangkok by concealing it in his shoes to board Flight No,TG- 346 from Lahore, a raiding party was constituted, which reached Allama Iqbal International Airport, Lahore; that at about 1-00 p.m. One passenger reached at the counter of ANF for checking whose name according to the passport was found as Attique Ahmad Khan resident of Rawalpindi; on suspicion he was thoroughly checked and from each of his shoes 210/210 grams heroin was recovered; that the said Attique Ahmad Khan disclosed that the seized contraband was handed over to him by Dildar Hussain resident of Tench Bhatta, Rawalpindi.
3. After completion of the investigation challan was submitted in the trial court. Charge was framed against the appellant by the learned trial court on 19-4-2012 to which he pleaded not guilty. During the trial before the learned Judge, Special Court the appellant lodged an application under section .265-K, Cr.P.C. For his acquittal, which was dismissed vide order dated 9-4-2012, hence this appeal.
4. It is argued by learned counsel for the appellant that he is innocent and has been implicated in the case with mala fide intention of the ANF officials on the basis of alleged statement of his co- accused legally not admissible in evidence; that no contraband substance was recovered from the appellant; that there is no incriminating material with the prosecution to connect him with the alleged offence; that co-accused Attique Ahmad Khan was apprehended by the ANF officials on 19-1-2012 and named him, as agent of the appellant; that the appellant has no concern with the said Attique Ahmad Khan; that continuance of the trial against the appellant would be a futile exercise in the absence of any legally admissible incriminating material against him.
5. On the other hand, the learned Special Prosecutor for ANF has contended that the appellant along with his co-accused is indulged in the heinous offence of Narcotic trafficking; that co- accused Attique Ahmad Khan from whom heroin was recovered acted as an agent of the appellant; that the prosecution has prima facie incriminating material against him; that there is possibility of his conviction on completion of the trial, therefore he is not entitled to acquittal at this early stage without completion of trial.
6. Arguments heard. Record perused.
7. Perusal of the record transpires that the appellant was not arrested at the spot and no recovery of narcotic substance was effected from his possession rather he was implicated in this case on the basis of some disclosure allegedly made by his co-accused namely Attique Ahmad Khan. It is an established principle of law that statement of the co-accused is not admissible in evidence.
Learned trial Court while dismissing appellant's application has A altogether ignored the intention and spirit of the legislation in introducing the provision of section 265-K, Cr.P.C. Since no legally admissible incriminating material against the appellant is available with the prosecution and there is no probability of the accused being convicted in the offence, therefore his trial would amount to abuse the process of Court and untenable in law. Section 265-K, Cr.P.C. Was enacted to save such persons from the rigors of trial.
8. For the above discussion and reasons, this appeal is allowed. The impugned order dated 9-4- 2012 passed by the learned Judge, Special Court (C.N.S.), Lahore is set aside and the application lodged by appellant Dildar Hussain under section 265-K, Cr.P.C. Is accepted and he is acquitted of the charges in the above mentioned case. Record reveals that the appellant is already on bail. His sureties shall stand discharged of the liability of the bail bonds.