AMJAD ALI SAHIT O, J.---Applicant Muhammad Iqbal Nawaz has impugned the judgment dated 17.01.2007 passed by learned Special Judge Contro l of Narcotics Substances/2nd Additional Sessions Judge Hyderabad in Special Case No,36 of 2005 whereby he acquitted the accused from the charge for an offence punishable under section 9(b) CNS Act, 1997 registered with P.S. Excise Crime Branch Hyderabad vide crime No,04 of 2005 and directed the District Police Officer (Operation) Hyderabad for registration of FIR against the complainant Inspector Muhammad Iqbal Nawaz (applicant) under section 9(b) of CNS Act, 1997.
2. Precisely the facts of the FIR are that Excise Inspector Muhammad Iqbal Nawaz lodged FIR at Excise Crime Branch Hyderabad stating therein that on 24.4.2005 at 1200 hours Hyderabad stating therein that on 24.4.2005 at 1200 hours he along with his subordinate staff left police station vide Entry No,85 in Government vehicle and when they reached at Anwer Shah Hotel near Kesana Morri, they noticed three persons namely Muhammad Bukhsh Zardari, Anwer Shah and Habib Shah were sitting, on seeing the police mobile accused Anwer Shah and Habib Shah while throwing blue colour plastic bags made their escape good whereas one accused was apprehended by them who on inquiry disclosed his name as Muhammad Bukhsh son of Allah Dino Zardari. He also disclosed the names of absconding co-accused as Anwer Shah and Habib Shah. On his personal search a plastic shopping bag containing small and big pieces of charas was recovered from side pocket of his shirt and an amount of Rs,40/-.
The recovered charas was weighed on spot which become 250-grams, while the charas thrown by absconding co- accused Anwer Shah and Habib Shah were also weighed on spot which become 220 grams and 150 grams respectively , out of which 10/10 grams were separated as samples from the recovered charas for chemical analysis and sealed the same on spot, such memo. of arrest and recovery was prepared in presence of mashir EC Ahtshamul Haq and EC Muhammad Usman. Thereafter the accused along with recovered case property were brought at police station and lodged instant FIR under section 9(b) Control of Narcotics Substances Act 1997 against all above named three accused persons on behalf of the State.
3. After completing investigation, report under section 173, Cr.P.C. was submitte d before learned Special Judge Control of Narcotic Substances, hyderabad, wherefrom the case was transferred to learned 2nd Additional Sessions Judge/Special Judge Control of Narcotic Substances Hyderabad for the trial of accused persons.
4. The accused Muhammad Bukhsh pleaded not guilty at the time of framing of charge against him at Ex.2 and claimed his trial. At the trial in order to establish the charge against the accused, the prosecution examined PW-1 complainant Excise Inspector Muhamma d Iqbal Nawaz at Ex.4, he produced memo of arrest and recovery at Ex.4/A, FIR at Ex.4/B, Roznamcha Entry at Ex.4/C, letter for sending sample to chemical examiner at Ex.4/D and report of chemical analyzer at Ex.4/E, PW-2 EC Ahtshamul Haq at Ex.5. Thereafter learned DDA for the State closed the prosecution side vide statement at Ex.6.
5. Statement of accused under section 342, Cr.P.C. was recorded at Ex.7 in which he denied the prosecution's allegations leveled against him and by pleading his innocence further stated that he has no concern with the alleged charas and it was foisted upon him. However , he neither examined himself on oath in terms of section 340(2), Cr .P.C. nor led any evidence in his defense.
6. The learned trial court after hearing the parties and on assessment of the evidence, acquitted the accused vide its judgment dated 17.01.2007 and directed the District Police Officer (Operation) Hyderabad for registration of FIR against Inspector/complainant Muhammad Iqbal Nawaz (applicant) under section 9(b) CNS Act, 1997 as well as departmental action against him, hence the applicant impugned the judgment before this court by way of filing instant criminal revision application.
7. Learned counsel for the applicant contended that learned trial court has totally failed to appreciate the material available on record and formed an opinion totally contrary to the factual position; that the observation of the trial court are totally contrary to the wisdom provided by section 26 of CNS Act, 1997; that in the examination in chief PW EC Ahtshamul Haq has supported the contention of the memo. of arrest and recovery , whereas, in his cross- examination he departed from his version taken in the examination in chief; learned trial court without providing opportunity/issuing show cause notice to the applicant, has directed for registration of FIR; lastly he prayed to allow the instant revision application. He has placed reliance on the case of Sulleman v. The State reported in 2007 PCr.LJ 46.
8. Conversely learned DPG has submitte d that in terms of section 26 of the Cont rol of Narcotics Substances Act, 1997, the learned Judge, Special Court Control of Narcotics Substances is competent to pass the direction for registration of the case, if he finds that a person has been vexatiously and un-necessarily detained. However , he admitted that no show-cause notice was issued to the applicant and without hearing the applicant, the directions were given to the District Police Of ficer (Operation) for registration of the FIR.
9. We have heard the learned counsel for the applicant, learned Deputy Prosecutor General for the State and minutely gone through the record with their able assistance.
10. From the record it reveals that the applicant was complainant in FIR No,04 of 2005 for offence under section 9(b) CNS Act, 1997 registered at P.S. Excise Crime Branch Hyderabad and after full dress trial the accused was acquitted by the trial court from the charge leveled against him, however , while acquitting the accused, learned 2nd Additional Sessions Judge Hyderabad observed in judgment in its paras. Nos,17 and 18 as under:--
17. "Through evidence on record and in view of my above discussion, it has been proved that accused Muhammad Bux has been falsely implicated in this case and 250-grams charas has been foisted upon the accused, which as in possession of complainant Inspector Muhammad Iqbal Nawaz at the time of registration of case. I therefore, order that let the FIR under section 9-B CNS Act, 1997 be lodged against the complain ant Inspector Muhammad Iqbal Nawaz and also for giving false evidence and implicating the accused in a false case".
18. "Copy of this judgment be sent to the Director Excise and Taxation Department for taking departmental action against the complainant Inspector Muhammad Iqbal Nawaz and so also to the District Police Officer (Operation)
Hyderabad, for registration of FIR against the Inspector complainant Muhammad Iqbal Nawaz"
11. Before expounding upon the matter in issue, it would be appropriate to reproduce the relevant section of Control of Narcotic Substances Act, 1997 as under:--
26. Punishment for vexatious entry , searc h, seizure or arrest... Any person empowered under section 20 or 21 who- --
(a) without reasonable grounds of suspicio n, 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 substances, controlled substance or any other article or document relating to any offence under this act AND
(c) vexatiously and unnecessarily detains, searches or arrest 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".
12. The sections 26 of the Control of Narcotic Substances Act, 1997 can only be invoked where it appears that seizure and arrest is vexatious and unnecessary and direction for registration of FIR hardly be exercised only when it is established on the record through cogent evidence that the narcotics has been foisted upon the accused and falsely implicated in the case, otherwise, in each and every case of acquittal, it will be pressed by the accused to direct the police officer for registration of FIR against the complainant or 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 law and the police official will be disinclined to be the complainant in the case. The contradictions in the evidence of prosecution witnesses which might be occurred due to lapse of time, do not cause to punish the complainant.
13. In view of above, the instant criminal revision application was allowed and the impugned judgment dated 17.01.2007 passed by the learned Speci al Judge Control of Narcotic Substances /2nd Additional Sessions Judge Hyderabad was set aside to the extent of paras. Nos,17 and 18 wherein the directions were issued for registration of FIR against the applicant as well as initiation of departmental proceedings.
These are the detailed reasons of the short order dated 21.6.2018 announced by us.