SHAHID HAMEED DAR, J.--- The appellant in fact was the investigating officer of case FIR No.10/1998, dated 29-4-1998, under sections 7, 8, 9(c), 15 of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Lahore and he was examined as P.W.4 during trial of Sharaf-ud-Din Sheikh, the accused of the above-said case, but he (appellant) ended up in a situation, beyond his imagination, as he, without any notice from the trial court, within the meaning of A section 26 of the Act (ibid) was held guilty for defective and delinquent investigation and awarded sentence of three months (what this period was meant for, not ascertainable) with fine of Rs.10,000, in default whereof he was supposed to undergo fifteen days imprisonment (simple or rigorous, a riddle), vide judgment dated 17-10-2002, by the learned Judge, Special Court, CNS, Lahore.
2. The appellant filed the titled appeal without having surrendered before the police, probably bearing in mind that he needed not court arrest because of the novel and ambiguous verdict, passed by the learned trial court. His appeal was admitted to regular hearing on 28-11-2002. He appeared before this court on 25-3-2013 in response to a notice issued to him vide order dated 6- 3-2013. On appearing, he sought and obtained adjournment to engage a counsel. He was not questioned, if he was on bail or not. He did not appear on 15-9-2014, wherefore, a notice was issued to him for 18-9-2014. He entered appearance today along with his learned counsel, Mr. Muhammad Qasim, advocate. He was inquired if he was on bail in this case, in answer to which he replied that he had never been asked by anyone to seek bail in this case or surrender before the police, hence, he has no idea as to the recourse, to resort to. His learned counsel has submitted that the appellant has surrendered and put himself at the mercy of the court, therefore, he may be dealt with as per requirement of section 426, Cr.P.C. The learned Special Prosecutor for ANF did not appear much enthusiastic so as to oppose the stance taken by the appellant and he honestly submitted that the appellant might be granted bail by way of suspension of his sentence. The judgment passed by the learned trial court as to conviction/sentence of the appellant is so ridiculous and bizarre that we need not direct the appellant to file a regular petition under section 426, Cr.P.C. Learned counsel for the appellant has submitted that the impugned portion of the under discussion judgment is not sustainable by any stretch of imagination, hence, mercy and grace may be shown to set the appellant free by suspending his sentence. He has further submitted that he is ready to argue the main appeal, if so asked. Learned Special Prosecutor for ANF too felt that the sentence of the appellant might be suspended even without any application by him in this regard and he also showed readiness to argue the main appeal, if directed. In this situation of concurrence of ideas, the sentence of the appellant is suspended and he is directed to submit personal surety bond to the satisfaction of this court, in the sum of Rs.10,000, to be recovered from him as penalty, if he violated terms thereof. Guidance in this regard may be had from Mazhar Ahmad's case, reported as 2012 SCM R 997. The academic discussion as to suspending the sentence of the appellant and setting him at liberty is wound-up and we proceed to hear the main appeal with the assistance of the learned counsel for the parties.
3. Precisely, the story of FIR No.10/1998 (supra) is that Syed Hassan Ijaz Kazmi, Deputy Director, ANF Lahore received a letter dated 23-2-1998 from Lt.Col.Latif, Joint Director (Operations), ANF Headquarters, Rawalpindi on 29-4-1998, which in fact was a forwarding instrument qua office memorandum dated 17-2-1998 issued by the Liaison Officer, Narcotics Branch, Embassy of Federal Republic of Germany. In the enclosed memorandum, the Liaison Officer had mentioned that huge quantity of Hasheesh weighing 302 kilograms was seized at Frankfort Airport, Germany on 23-1- 1998, which consignment had been flown into Germany vide flight No.PK-715, the consigner being Razzaq International Lahore. The narcotic substance was packed in ship-cylinders, sealed in four wooden crates. It was requested in the said memorandum that necessary data might be collected as to the whole affair. Syed Hassan Ijaz Kazmi conducted an inquiry and found that one Faheem Babar, joined by his cronies, Ali Akbar, Anwar Shah and Pervaiz Malik had exported said consignment of Hasheesh to Netherland through their front-man Aslam, the proprietor of Aslam Traders, Lahore. In this background, F.I.R. No.10/1998 (supra) was registered against the above-said notorious exporters of the said drug.
4. Ahmad Jaleel Raja-appellant was the Assistant Director-ANF and he being the investigating officer arrested Faheem Babar, Sharaf-ud-Din, who was already confined in jail in case F.I.R.
No.11/1995, Mujahid Pervaiz, Ilyas Muhammad and Rashid Aslam accused during the course of investigation. He also arrested Ali Akbar Shah, who had been arraigned as accused later on in this case. Some of the accused were declared absconders and one of them, Pervaiz Malik was also arrested by the investigating officer/appellant. During the course of the trial, Ilyas Muhammad, Mujahid Pervaiz and Rashid Aslam admitted their guilt and they were duly convicted/sentenced by the learned trial court on 8-12-1999. The other accused, Ali Akbar, Faheem Babar and Sharaf-ud- Din constantly denied the charge and faced the trial till Ahmad Jaleel Raja (appellant) was examined as P.W.4. It was at this stage when accused moved a petition under section 265-K, Cr.P.C., which was generously allowed by the learned trial court on 17-10-2002. It, however, held the appellant guilty of defective investigation and sentenced him unilaterally to the tune, noted as above. Hence, this appeal.
5. Learned counsel for the appellant has contended that the impugned portion of the above-said judgment, as to conviction of the appellant is patently illegal and liable to be set aside without second thought.
6. Learned Special 'Prosecutor for ANF is equally upset over the modus-operandi adopted by the learned trial court to condemn the appellant. He, however, has submitted that the case may be remanded to the trial court for fresh' trial of the appellant.
7. After hearing learned counsel for the parties and perusing the available record, it is observed that the observations recorded by the learned trial court in awarding conviction/sentence to the appellant do not impress us at all. It would be an interesting feature to reproduce the impugned portion of the judgment under discussion, so as to get a feeling, how fallacious and unconvincing did it look:- "It is not provided on the file as to what material was available with the I.O. For showing the arrest of the petitioner in the case in hand. The statement of the co-accused under section 164, Cr.P.C. Was not sufficient to implicate the petitioner in the case unless the I.O. Had proceeded to collect other independent evidence against the petitioner in the light of accusations made by Faheem Babar in his judicial confession. In the case in hand the petitioner is facing agony of trial and detention without any justifiable cause and due to mala fide, incompetency and inefficiency of 1.0., therefore, it is fit case for proceedings against the I.O. Under section 26 of CNSA, 1997. Since there are glaring illegalities committed by the Investigating Officer during the investigations against the petitioner, therefore, there is no need to further probe into the matter and as such the LO. Namely Ahmad Jalil Raja Assistant Director, ANF, Lahore is convicted under section 26(c) of CNSA, 1997 and is awarded sentence of 3 (three) months with fine of Rs.10,000 (Rupees Ten Thousands only) and in default of payment of fine he shall further serve the imprisonment for 15 days."
' The trial of the acquitted accused Sharaf-ud-Din Sheikh was at its fag end stage, when the learned trial court entertained petition under section 265-K, Cr.P.C. And acquitted him of the charge. The statement of Ahmad Jaleel Raja (appellant) as P.W.4 was still incomplete as is evident from paragraph 4 of the impugned judgment, when learned trial court rushed into acceptance of the above-said application and simultaneously convicting and sentencing the said P.W., who is none else than the appellant herein. It cannot be perceived from the impugned portion of the above judgment as to how the investigation conducted by the appellant was defective or how was it based on, mala fide. It is not the requirement of section 26 of the Act (ibid) that investigating officer of a criminal case should be condemned at his back, without affording him an opportunity of hearing. The appellant was never put to any notice nor he was called upon to clarify the shortcomings and defects of the investigation conducted by him, as observed by the trial court in the impugned verdict of guilt. The principles of natural justice required that the trial court should have issued a notice to the appellant, requiring him to explain his position as to "glaring illegalities committed" by him during the course of investigation. How could it be observed by the trial court that there was no need to further probe into the matter so as to convict and sentence the appellant. Three co-accused of Sharaf-udDin Sheikh accused named as above, had confessed their guilt during trial, which was an important and crucial circumstance to be kept in view by the trial court while condemning the appellant, but it was not so done and conviction/sentence in question was slapped in his face without any just cause or reason. The appellant certainly deserved to be heard before he was treated in the said fashion by the trial court. The impugned conviction/sentence of the appellant is not sustainable in any way nor methodology practiced by the trial court, in mentioned terms, can be approved of by any stretch of imagination. The conviction/ sentence recorded against the appellant is liable to be set aside.
8. So far as request of the learned Special Prosecutor for ANF that the case the appellant may be remanded to the trial court for his. Fresh trial, we are afraid,. Is not worth entertaining. It happened about twelve years ago that the appellant got the condemnation-in-issue at the hands of the trial court and his appeal also remained pending for an equal period of time, which might have occasionally jotted him that he might be jailed one day to serve the said sentence. The lurking fear on the mind of the appellant of being arrested and confined in jail might have upset his inside chemistry off and on, which itself was not less than a mental trauma. Remitting the case back for regular trial of the appellant by the trial court would not serve the ends of justice in any manner, especially after an interval of twelve years. The contention of the learned Special Prosecutor is, therefore, given a negative nod.
9. The upshot of the above discussion is that the instant appeal is allowed, the conviction/sentence of the appellant is set aside and he is discharged of all the burdens, put on him by the learned trial court. The personal surety bond, which he submitted in the meanwhile, stands discharged.