' AFTAB AHMED GORAR, J.---Through this application, applicants seek withdrawal of notices issued against them under section 26 of Control of Narcotic Substances Act, 1997(C.N.S Act) by the learned Special Judge CNS/ Sessions Judge Umerkot vide Judgment dated 17-3-2011 in Special Case No,7 of 2010 bearing Crime No,3 of 2010 of Divisional Special Squad Excise Mirpurkhas.
2. Facts leading to this application are that on 1-7-2010 applicant No,2 lodged F.I.R. Under section 9(c) of C.N.S Act, 1997 against accused Muhammad Khan and Shahnawaz, who were allegedly apprehended by the police party on the same day along with motorcycle, 6 Kilgorams charas, cash Rs,50, Nokia phone and 10 Kilogram charas, cash Rs,100 and one Nokia mobile phone respectively in presence of mashirs.
3. The case was investigated by the applicant No,3 and after completion of investigation challan was submitted before the trial court.
4. The learned trial court after recording evidences and hearing the counsel for the parties, passed Judgment whereby acquitted the accused persons and also ordered to issue notices against the applicants under section 26 C.N.S Act, 1997. It is against the issuance of said notices that the present application has been filed.
5. Learned counsel for the applicants contended that the impugned Judgment is against law and equity and is also not a speaking one; order for issuance of notices against the applicants is based on presumptions and in utter disregard to the evidences available on record; the learned trial court based its Judgment on the defence plea taken by the accused persons in their statements under section 342, Cr.P.C, which was an afterthought as such plea was not taken during the cross- examination of the prosecution witnesses. He states that the prosecution witnesses were consistent with each other and their evidences could not be shattered so that their testimony could be falsified. He further states that the issuance of notices against the applicants amounts to miscarriage of justice as well as the order was a result of misreading and non-reading of the evidences available on record. The learned counsel further submitted that so far the plea of enmity of murder case, which has been based by the learned trial court for acquittal of the accused and issuance of notices against the applicants, is concerned the same case was disposed of long ago and has no concern with the present case. Learned counsel further contended that a huge quantity of charas as well as a motorcycle and other articles were recovered from the accused persons, which could not possibly be foisted upon them. Learned counsel, therefore, prayed for withdrawal of the alleged notices against the applicants.
6. On the other hand, learned Additional Prosecutor General Sindh argued that the court is competent to issue notice, if it comes to the conclusion that there was no material available on record in connection with the crime and in such eventuality it can invoke its power under section 26 of the C.N.S Act, 1997. He further contended that if there are any contradictions in the evidence of the witnesses, the trial court could acquit the accused but issuance of notices against the applicants are illegal. He, therefore, does not support the Judgment to the extent of issuance of notices against the applicants.
7. We have heard learned counsel for the parties and have examined the material available on record. For the sake of brevity, section 26 of the C.N.S Act, 1997 is reproduced as under:- "26. Punishment for vexatious entry , search, seizure or arrest.
Any person empowered under section 20 or section 21, who-
(a) without reasonable grounds of suspicion, enters or searches, or causes to be entered or searched any building, place, premises or conveyance;
(b) vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug, psychotropic substance, controlled substance or any other article or document relating to any offence under this Act and
(c) vexatiously and unnecessarily detains, searches or arrests any person; shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to twenty-five thousand rupees.
8. Perusal of the record reveals that accused persons were apprehended at the spot and allegedly 16 K.G charas was recovered from them and such F.I.R. Was registered, case was investigated and challaned before the trial court. Learned trial court has acquitted the accused persons and has issued notices under section 26 of the C.N.S Act, 1997 on the basis of plea raised by the accused persons in their statements under section 342, Cr.P.C. When such defence plea was not taken during the cross-examination of the P.Ws. According to accused persons, two sons of Abdul Ghafoor Arain were murdered and such F.I.R., was lodged by him against Sajjan Khan Chandio and others, who were convicted by the court and appeal was filed by the said accused persons before this court at principal seat at Karachi. During pendency of the appeal, parties patched up and on the basis of such compromise accused Sajjan and others were acquitted. The accused persons stated before the trial court that such compromise was taken on the undertaking given by Sajjan Khan that the complainant party would be compensated and would be given 100 acres of land by Sajjan which had not been given to them. According to accused such deal was outside the court before compromise application and after acquittal of Sajjan and others, said Abdul Ghafoor was demanding such compensation but Sajjan Khan refused to handover such compensation to the said complainant. Thereafter P.W 3 approached Sajjan Khan for the said purpose but he could not succeed in the matter which resulted into arrest of accused persons in this case by foisting charas upon them. It is noted that one accused claimed to be grand son of the said Sajjan Chandio and other to he his close relative. The incident of aforesaid murder case took place in 1998 and parties had patched up their matter in 2000 while this case was registered against the accused persons in July, 2010. A question could arise as to how it is possible that after a lapse of more than 10 years applicant No,3 booked the accused persons and foisted 16 Kilograms of charas upon them when the said applicant No,3 did not arrest accused persons but applicant No,2 arrested both the accused persons and allegedly recovered charas from them. The applicant No,3 being the Investigating Officer, recorded 161, Cr.P.C. Statements of the witnesses, sent the sample for chemical examination and thereafter challaned the case. As per the record, there appears to be no role of applicant No,3 in the arrest of accused and recovery of charas etc. From their possession.
Even otherwise, in the aforesaid case, Abdul Ghafoor is by caste Arain and the applicant No,3 is by caste Bajwa and no close relationship of applicant No,3 with the aforesaid Abdul Ghafoor was proved by the accused persons.
9. It is also noted that no doubt in every criminal case, the prosecution is duty bound to prove its case beyond any shadow of reasonable doubt and if single circumstance creates doubt in the prudent mind, its benefit must be extended to the accused persons and they can be acquitted on the basis of golden principle of benefit of doubt but for invoking provision of section 26 of the C.N.S Act, 1997 it is to be seen whether arrest and seizure are vexatious or necessary or not, which aspect has not been proved with cogent material.
10. We have also examined the defence plea taken by the accused persons in their statements under section 342, Cr.P.C, with regard to compromise arrived at between the complainant Abdul Ghafoor and accused Sajjan and others in the above referred case. It is an admitted position that the offence under section 302, P.P.C. Is compundable and if the parties in said case had patched up and filed compromise application, which has not only been signed by the parties but their counsel also and if there was an undertaking about the 100 acres of land, it would have been mentioned in the said compromise application as it is hardly believable that on the basis of mere oral undertaking of the said Abdul Ghafoor the matter was compromised with the accused persons. Even otherwise neither any document was furnished nor any witness was cited by the accused persons before trial court showing that the accused Sajjan Khan had given such undertaking to handover 100 acres of land to the said Abdul Ghafoor in lieu of the compensation of murder of his two sons. Even such question relating to the above observation was not raised by the learned defence counsel to the P.Ws. In their cross-examination. We, therefore, feel no hesitation to hold that such defence plea was not only an afterthought but was also not proved.
11. Section 26 of the C.N.S Act, 1997 relates to vexatious entry, search and seizure or arrest and provides punishment for a person, who vexatiously and unnecessarily seized the property of any person on the basis of seizing or searching narcotic substance or detains, searches or arrests any person. However, in the present case, as per prosecution case, the accused persons were apprehended along with huge quantity of charas viz. 16 Kilograms besides motorcycle, mobile phones etc, which in view of the facts obtaining in the present case could not be arranged and foisted upon them. We, thus, do not find that this is a case of invoking the provisions of section 26 of C.N.S Act, 1997, as there is no material to substantiate that the arrest and seizure from the accused persons by the applicants was in any way vexatious or unnecessary.
12. For the foregoing reasons, we allow the application and set aside the Judgment of the learned trial court to the extent of issuance of notice to the applicants under section 26 of C.N.S Act, 1997 as a consequence thereof the notices are directed to be vacated.
' Vide our short order dated 23-1-2013, this Criminal Miscellaneous application was allowed and above are the reasons thereof.