MIRZA VIQAS RAUF, J. The appellant Abdul Hafeez has called in question the judgment dated 13th of February, 2004 passed by the learned Additional Sessions Judge, Okara, whereby while acquitting the respondent No.1 from the case FIR No.600 dated 19th of October, 2001 registered at Police Station Saddar, Okara directed the SHO, Police Station, Saddar, Okara to register a case under Section 26 of The Control of Narcotic Substances Act, 1997 against the appellant.
2. Precisely the facts necessary for adjudication of instant appeal, as emanate from the statement of Abdul Hafeez S.I/appellant who appeared as complainant/PW-1 are as under:- "On 19.10.2001, I was posted at CIA Staff, Okara and was present alongwith Abdul Rashid ASI, Muhammad Sarwar, Muhammad Azim, Arshad, Nasir, Nousher and Shahid Hussain constables at Depalpur chowk in connection with our patrol duty. In the meantime, I received a secrete information that Muhammad Ashraf and Mehmood Ahmad both brothers deal in narcotics. On this information, I reached at Chak No.54/2-L and haulted the police party near the house of Mehmood Ahmad accused present in court about 25 yards away. In the meantime, Ashraf and Mehmood Ahmad came to their house on a Motorcycle within our sight, Ashraf was driving the Motorcycle within our sight, Ashraf was driving the Motorcycle dropped Mehmood Ahmad accused from the Motorcycle who was sitting on the rear seat and went away, when Mehmood Ahmad came near us he was apprehended by me. He was holding a shopper in his right hand. The polithine shopper was searched from where 1250 grams charas P.1 was recovered. Ten grams charas was separated from the main quantity and this ten grams and the remaining main quantity P.1 were made into two different sealed parcel. Charas P.1 was taken into possession by me vide recovery memo Ex.P-A. I then drafted the complaint Ex.P-B and sent it to the P.S for the formal registration of the case through Nousher Ali constable."
On the basis of above stated facts, case FIR No.600 dated 19th of October, 2001 (Exhibit-PB/1)was registered against the respondent No.1 at Police Station Saddar, District Okara.
3. After formal investigation, report under Section 173 of The Code of Criminal Procedure, 1898 was submitted before the learned trial Court and the respondent No.1 was sent to face the trial. The learned trial Court, while taking cognizance of the matter, framed the charge against the respondent No.1 under Section 9(c)of The Control of Narcotic Substances Act, 1997 on 07th of March, 2002 to which he pleaded not guilty and claimed trial.
4. In order to prove the alleged recovery, the prosecution led its evidence. In this regard, Abdul Hafeez S.I,being the complainant as well as Investigating Officer appeared as PW-1. Shahid Hussain No.487-C was examined as PW-2.He deposited the sealed parcel to the office of Chemical Examiner, Lahore on 26.10.2001.Nousher 709-C, one of the recovery witness was produced as PW-3.
He narrated the events which led to the recovery of charas weighing 1250 grams. Muhammad Hashim 1034/HC, who was officiating as Moharrar at the relevant time was examined as PW-4. He chalked out the FIR (Exhibit-PB/1) and also deposed about the keeping of sealed parcel of charas and its further transmission to the office of Chemical Examiner.The learned Deputy District Attorney gave up PW Muhammad Azim 113 C, being unnecessary.The report of Chemical Examinerwas tendered in evidence as Exhibit-PDand thereafter the prosecution evidence was closed.
5. After completion of prosecution evidence, the statement of respondent No.1 was recorded under Section 342 of The Code of Criminal Procedure, 1898 wherein he pleaded his innocence and submitted that he has been falsely involved in this case. He produced Shah Muhammad as DW-1 and Muhammad Ashraf as DW-2 whereas he also tendered certified copy of Criminal Miscellaneous No.1692/H of 2001 as Exhibit-DA, certified copy of order dated 19.10.2001 as Exhibit- DA/1, copy of affidavit of Mst. Bashiran Bibi as Exhibit-DB, copy of affidavit of Muhammad Irshad as Exhibit-DC and copy of order dated 31.05.1997 as Exhibit-DD in his defense, however, he did not opt to appear in the witness box in terms of Section 340(2) of The Code of Criminal Procedure, 1898.
6. After completion of evidence and hearing both the sides, the learned trial Court, vide its judgment dated 13.02.2004acquitted the respondent No.1, however, directed the SHO P.S Saddar, Okara to register a case under Section 26 of The Control of Narcotic Substances Act, 1997 against the appellant.
7. Learned counsel for the appellant submitted that section 26 of The Control of Narcotic Substances Act, 1997 is not attracted in the present circumstances as the search was made in terms of section 22 of The Control of Narcotic Substances Act, 1997. He maintained that while giving the direction for registration of case, the findings of the learned Additional Sessions Judge are mainly influenced with the outcome of case FIR No.09 of 1997, thus the impugned judgment is not tenable under the law. Learned counsel contended that there was no material on the record that the appellant has proceeded malafidly in the instant case. Learned counsel further contended that by virtue of section 75 of The Control of Narcotic Substances Act, 1997, no prosecution can be initiated against the appellant. Learned counsel argued that no such direction can be passed for registration of case against the appellant in terms of Section 26 of The Control of Narcotic Substances Act, 1997 and in any case, the prosecution has to proceed in terms of Section 195 of The Code of Criminal Procedure, 1898. In support of his contentions, learned counsel has placed reliance on ASADULLAH versus The STATE (2014 M LD 121)and SAIFUL HUSSAIN alias FAISAL HUSSAIN and 2 others versus The STATE (2013 M LD 1431).
8. Conversely, learned Additional Prosecutor General submitted that in terms of Section 26 of The Control of Narcotic Substances Act, 1997, the learned Judge, Special Court, Control of Narcotic Substances is competent to pass the direction for registration of case if he finds that a person has been vexatiously and unnecessarily detained. Learned Prosecutor contended that the Court is competent to proceed in terms of Section 26 of The Control of Narcotic Substances Act, 1997 without adopting the mode provided under sections 190, 195 and 476 of The Code of Criminal Procedure, 1898. He, however, submitted that the impugned judgment is based on personal knowledge and observations and thus the same does not meet the requirement of Section 26 of The Control of Narcotic Substances Act, 1997.
9. We have heard the learned counsel for the appellant as well as learned Additional Prosecutor General at some length and perused the record with their assistance.
10. Record reveals that though the instant appeal was filed challenging the impugned judgment in toto but on 29th of June, 2004, learned counsel for the appellant stated that he will not press this appeal to the extent of acquittal of respondent No.1 so in the light thereof the appeal has become infructuous to that extent.
11. The appellant was complainant in case FIR No.600 dated 19th of October, 2001, offence under Section 9(c) of The Control of Narcotic Substances Act, 1997 registered at Police Station Saddar, District Okara on account of alleged recovery of charas weighing 1250 grams from the respondent No.1. The respondent No.1 was tried by the learned Additional Sessions Judge, Okara and ultimately he was acquitted from the charge leveled against him. However, while acquitting the respondent No.1, learned Additional Sessions Judge, Okara observed as under:- "This case has been got registered by Abdul Hafeez SI who was posted at CIA, Okara. Under the law, CIA cannot investigate any case without permission of the DPO concerned but no such permission has been obtained by the police. The prosecution has hopelessly failed to prove the charge against the accused. So, the accused is hereby acquitted from this case. He is present on bail. He and his surety are discharged from their bail/surety bonds. All this is sufficient to convince me that Abdul Hafeez SI has planted a fictitious and malafide case against the accused whereby, the accused has suffered mental and physical torture by the police. It is common practice of the police officers that they involve innocent people in fictitious and frivolous cases only to show their efficiency or for satisfaction of their personal grudges and enmities or on the recommendations of their friends, relatives and influencial people. This practice has made the life of innocent persons un-safe and under constant apprehension and danger of police atrocities which has made whole country a police state. Therefore, such type of police officials should be discourged. Rather, must be penalized and dealt with heavy hands. Therefore, I hereby direct SHO P/S Saddar, Okara to register a case U/S 26 of CNSA against Abdul Hafeez SI presently posted at CIA Staff, Okara and to proceed in accordance with law. Copy of the FIR be produced before this court within 24 hours from the receipt of this order. The file be consigned to record room after due completion."
Before dilating upon the matter in issue, it would be advantageous to go through section 26 of The Control of Narcotic Substances Act, 1997 which reads 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."
Since in the instant case, recovery was effected from the personal search of the accused, so sub- clause (c) of section 26 of The Control of Narcotic Substances Act, 1997 would be relevant for the said purposes. The contentions of the learned counsel for the appellant that section 26 of The Control of Narcotic Substances Act, 1997 is not attracted to the search proceedings conducted under Section 22 of The Control of Narcotic Substances Act, 1997 are misconceived. From bare reading of section 26 of the Act, ibid, it is manifestly clear that the provisions of this penal section will be attracted to any person who is empowered under Sections 20 or 21 of the Act and while vested with such powers vexatiously and unnecessarily detains, searches or arrests any person.
12. Section 21 of the Control of Narcotic Substances Act, 1997 deals with the powers of an officer for the purposes of entry, search or seizure of any narcotic drug, psychotropic substance or controlled substance which is kept or concealed in any building, place, premises or conveyance whereas section 22 of the Control of Narcotic Substances Act, 1997 deals with the seizure and arrest in any public place. The Authorization for the said purpose is to be regulated under Section 21 of the Control of Narcotic Substances Act, 1997. Though initially such authorization was given on individual basis keeping in view the respective areas of jurisdiction of police officers but in the year 2004by virtue of S.R.O. 656(I)/2004 dated 2.8.2004 the Federal Government was pleased to authorize all the members not below the rank of Sub-Inspector or equivalent of the Anti Narcotics Force, Provincial Excise and Police Departments, Inspector or equivalent of the Customs Department and Subedar in the Frontier Corps in the Provinces of Balochistan and the North-West Frontier to exercise the powers and perform the functions under the aforesaid section and sections 22, 23, 37(2) and 38 of the Control of Narcotic Substances Act, 1997 within the areas of their respective jurisdiction. The said notification is reproduced below for ready refinance: "S.R.O. 656(I)/2004 dated 2.8.2004---In exercise of the powers conferred by subsection (1) of section 21 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), and in supersession of its Notification No. S.R.O. 1134(I)/97, dated 7th July, 1997, the Federal Government is pleased to authorize the members not below the rank of Sub-Inspector or equivalent of the Anti Narcotics Force, Provincial Excise and Police Departments. Inspector or equivalent of the Customs Department and Subedar in the Frontier Corps in the Provinces of Balochistan and the North-West Frontier, Sub-Inspector or equivalent of Pakistan Rangers (Sindh), Inspector or equivalent of Pakistan Rangers (Punjab), Naib Subedar or equivalent of Pakistan Coast Guards and to the Officers of Maritime Security Agency not below the rank of Chief Petty Officer to exercise the powers and perform the functions under the aforesaid section and sections 22, 23, 37(2) and 38 of the Control of Narcotic Substances Act, 1997 within the areas of their respective jurisdiction."
In view of above, no ambiguity is left that section 26 of the Control of Narcotic Substances Act, 1997 will come into play even in case of proceedings conducted under section 22 of the Act ibid. Since section 26 of the Control of Narcotic Substances Act, 1997 prescribes a punishment with imprisonment for a terms which may extend to three years and a fine as well which may extend to twenty-five thousand rupees, so by virtue of schedule II of The Code of Criminal Procedure, 1898 relating to offences against other laws, the same is cognizable and in terms of section 154 of The Code of Criminal Procedure, 1898 FIR can be registered directly under the said Section without adopting any other mode.
13. The Control of Narcotic Substances Act, 1997, being the special law and having an overriding effect in terms of Section 72 will prevail upon the general law, i.e. The Code of Criminal Procedure, 1898, thus for initiating the proceedings under Section 26 of the Control of Narcotic Substances Act, 1997, the Court is not obliged to adopt the procedure provided under Sections 190, 195 or 476 of The Code of Criminal Procedure, 1898. The judgment cited by the learned counsel for the appellant reported as ASADULLAH versus The STATE (2014 M LD 121) is based on totally different facts as in the said case, the Excise Inspector who was proceeded under Section 26 of the Control of Narcotic Substances Act, 1997 was convicted and sentenced without adopting proper procedure whereas the judgment cited as PERVAIZ KHAN versus THE STATE (2010 YLR 2005) is passed by one of the learned Single Bench of the Sindh High Court, Karachi is perhaps the result of improper assistance by the contesting parties and with utmost reverence the law laid down in the said case is not binding on this Court, being not based on proper appreciation of relevant provisions of The Control of Narcotic Substances Act, 1997.
14. We, while adverting to the merits of the case observed that the learned Additional Sessions Judge, while proceedings in terms of Section 26 of The Control of Narcotic Substances Act, 1997 was mainly influenced with the outcome of case FIR No.09 of 1997 under Section 302 of The Pakistan Penal Code, 1860 wherein accused Muhammad Arshad was allegedly tortured and killed by the police in custody. The other ground which prevailed upon the learned Additional Sessions Judge was that there were certain contradictions in the statements of the prosecution witnesses and the appellant, being member of CIA staff was not competent to investigate the case. We are afraid that the learned Additional Sessions Judge, while passing a direction for registration of case under section 26 of The Control of Narcotic Substances Act, 1997 has failed to take into account the pre- requisites mentioned therein. In order to proceed against a person in terms of Section 26 of the Act, ibid, it has to be established on the record that the accused was vexatiously and unnecessarily detained, searched or arrested in the offence.
15. The word "vexatious" is defined in Black's Law Dictionary Seventh Edition by Bryan A. Garner as "without reasonable or probable cause or excuse; harassing; annoying" and the word "unnecessary" is defined as "not required under the circumstances; not necessary." The impugned judgment passed by the learned Additional Sessions Judge is completely silent on the above aspect and the learned Additional Sessions Judge did not term the search or arrest as vexatious and unnecessary. He neither discussed the veracity of the other prosecution witnesses as the recovery was supported by Nousher 709-C who appeared as PW-3 and the other attesting witness of recovery Muhammad Azim 113-C who was given up. The penal clause provided under Section 26 of the Control of Narcotic Substances Act, 1997 can only be invoked where it appears that the seizure and arrest is vexatious and unnecessary, otherwise in each and every case of acquittal it will be pressed by the accused to proceed in terms of Section 26 of the Control of Narcotic Substances Act, 1997 against the complainant which will certainly damage the scheme of the law and the police officials will become reluctant to be complainant in the case. The powers under Section 26 of the Control of Narcotic Substances Act, 1997 should rarely be exercised only when it is established on the record that the arrest and seizure is vexatious and unnecessary. Reliance in this respect can be placed on SAIFUL HUSSAIN alias FAISAL HUSSAIN and 2 others versus The STATE (2013 M LD 1431).
16. For what has been discussed above, we are inclined to allow the instant appeal and set aside the judgment dated 13th of February, 2004 passed by the learned Additional Sessions Judge, Okara to the extent of issuance of direction for registration of case under Section 26 of the Control of Narcotic Substances Act, 1997 against the appellant.