ARBAB MUHAMMAD TAHIR, J: Through the instant criminal appeal under section 48 of the Control of Narcotics Substances Act, 1997 ("Act of 1997"), appellant (Muhammad Shah) impugns judgment dated 10.09.2021, passed by the learned Additional Sessions Judge-I/Judge Special Court, (CNS), Islamabad (East), whereby he was convicted under Section 9(C) of the Act of 1997 for trafficking 5264-grams heroin and sentenced to undergo 10 years R.I. with fine of Rs. 110,000/-, in default whereof, to further undergo 10 months S.I. and for trafficking 135 grams opium to undergo 01 year and 02 months R.I. with fine of Rs. 5,000/-, in default to further under 03 months S.I. with benefit of section 382-B Cr.P.C and both the sentences to run concurrently, in case F.I.R No.400, dated 02.11.2020, under Section 9-C of the Act of 1997, registered at Police Station Lohi Bher, Islamabad.
2- According to allegations set-forth in complaint Ex. PE, on 02.11.2020, at about 12:40 a.m. within the area of Bhinder Stop, Islamabad Highway, where Qasim Zia S.I. / PW-6 alongwith other police officials including Naveed Ahmed, Anjum Nisar, HC, Qaiser Abbas, Constable, was present pursuant to a spy information, apprehended the appellant having a black colour bag in his hand. On search of the said bag, five packets of round shape wrapped in yellow colour insulation tape, were recovered from a coloured chaddar. The said round shape packets were weighed and their weight came to 1132, 1248, 994, 990 and 900-grams respectively, in-total 5264 grams. The S.I./I.O. Qasim Zia separated 10-grams from each packet, prepared sample sealed parcels and sealed the remaining contraband in a separate parcel, affixed the seal "QZ" on all the six parcels and took the same in possession through recovery memo Ex.PA attested by Naveed Ahmed HC/PW-3 and Anjum Nisar, Constable/PW-4. On personal search of the appellant, a white colour polythene shopper was recovered from right pocket of his shirt. On search of the said shopper, opium weighing 135-grams was recovered. Out of the substance, SI/PW-6 separated 10-grams; prepared its parcel while the remaining substance was also sealed in separate parcel and the seal "QZ" was affixed. SI/PW-6 then took into possession both the said parcels through recovery memo Ex.PB attested by Naveed Ahmed HC/PW-3 and Anjum Nisar, Constable/PW-4. After due investigation, on being found guilty, report in terms of section 173 Cr.P.C was submitted before the trial Court against the appellant.
3- At the trial, prosecution produced six witnesses in all i.e. PW-1 Qaiser Abbas Constable, PW-2 Naveed Akhtar, HC, PW-3 Naveed Ahmed HC, PW-4 Anjum Nisar, HC, PW-5 Naseeb Ullah, ASI, and PW-6 Qasim Zia, SI. The learned ADDP tendered in evidence the report of National Forensic Science Agency-NFSA as Ex.PG.
PW-1: Qaiser Abbas, Constable had been the member of the police party and deposed to testify the apprehension of the appellant and recovery of the contraband. The witness took complaint to the Police Station for the registration of FIR and then came back to the place of occurrence alongwith the original complaint and copy of FIR, which he handed over to Qasim Zia SI/PW-6.
PW-2: Naveed Akhtar, HC, on 02.11.2020, kept the case property in safe custody in Malkhana received from S.I./PW-6 and on 05.11.2020, on the direction of SI/PW-6 handed over six parcels to Anjum Nisar, HC, for onward transmission to the office of NIH Islamabad.
PW-03: Naveed Ahmed, HC, had also been the member of the raiding party deposed to prove the proceedings conducted at the spot including the recovery of contraband.
PW-4: Anjum Nisar, HC, deposed to testify apprehension of the appellant and the recovery of contraband. The witness on 05.11.2020 deposited sealed sample parcels in the office of NFSA Islamabad, which he received from the Moharrar.
PW-5: Naseeb Ullah, ASI,on 02.11.2020 recorded formal FIR (Ex.PD) on the basis of complaint (Ex.P-E).
PW-06 Qasim Zia, SI, is the complainant as well as the Investigating Officer of the case. The witness deposed to prove the apprehension of the appellant, recovery of contraband i.e. heroin and opium and the details of the investigation.
4- After the recording of above prosecution evidence, the appellant was examined under Section 342 Cr.P.C wherein he denied the prosecution evidence and had taken the plea that "I am innocent and neither anything has been recovered from my possession nor on my pointation. On 13.09.2020 Noor Elahi and Habib Ullah took me from Peshawar KPK to Car Cell Sabzi Mandi alongwith 03 others namely Saif Ur Rehman, Umer Shah and Zahoor. My spouse Kausar Begum and brother Saif Ur Rehman filed petition under section 491 Cr.P.C., which are annexed alongwith orders passed by the learned Additional Sessions Judge, Peshawar as Ex.DB/1-5 and Ex.DC/1-10 respectively. We all were kept in illegal detention for about 50 days and then divided in different police stations and registered fake cases against us. I and two other accused namely Umer Shah and Zahoor were handed over to the Police Station Lohi Bher whereas Saif Ur Rehman was handed over to the Police Station Noon. Qasim Zia, present I.O./Complainatn of the instant case registered two cases one against me and other against Zahoor. Copies of FIR registered against Zahoor, Umer Shah and Saif ur Rehman are Mark-DA, Mark-DB and Mark-DC respectively.
Neither I was arrested as per mode and manner alleged in the instant FIR nor any recovery has been affected from my possession". The appellant tendered copies of petitions under section 491 Cr.P.C. and that of FIRs as Exh.DB/1-5, Exh.DC/1-10, Mark-DA to Mark-DC. The learned Trial Court, after hearing the counsel for the appellant and learned ADDP, convicted and sentenced the appellant vide judgment dated 10.09.2021 in terms noted in Para-1 above, being assailed through the instant criminal appeal.
5- Learned counsel for the appellant while referring to the grounds contained in the memo of the appeal argued that the impugned judgment, on the face of it, is bad in law, sketchy, slipshod, devoid of reasoning, liable to be set aside. According to the learned counsel, the prosecution evidence more significantly, the statements of Naveed Akhtar and Moharrar PW-2, Naveed Ahmed, HC/PW-3 are not only in-conflict with each other on material aspects but are in direct conflict with the statement of PW-6/I.O. The learned counsel went on to argue that the way the trial court had delivered the judgment, not only reflects casual approach in dealing with the sensitive judicial business but is also oblivion to the principles on the subject set-in Chapter XXVI of the Code of Criminal Procedure, 1898 in terms of section 366 and 367 thereof. It is added that the appellant is accused of the offence of capital punishment and, therefore, the treatment afforded to him in no way can be termed to be a judicious dispensation rather offensive to the principles of natural justice and fair trial envisaged in Article 10A of the Constitution.
6- On the other hand, learned State Counsel repelled the above submissions by contending that the prosecution evidence is firm to establish unbroken chain of events which is corroborated by the report of NFSA. Further argued that the prosecution evidence being of unimpeachable character establishes charge against the appellant, therefore, the impugned judgment does not call for any interference.
7- We have heard the learned counsel for the appellant, learned State Counsel and have gone through the record with their able assistance.
8- At the very outset, in order to respond to the submissions made by the learned counsel for the appellant on the veracity of the judgment vis--vis its contents and the reasoning made basis for arriving at conclusion to convict the appellant, we with due care and caution have gone through the impugned judgment.
9. Bare perusal of the impugned judgment reveals that after narrating the facts in paragraphs 2 to 6, the trial court recorded its observations in subsequent paragraphs 8 and 9 only. In paragraph 8 and 9 too there is reproduction of the substance of the statement of PW-6/SI/IO twice, once in the beginning of paragraph 8 and second in the midst of paragraph 9. The significant aspect that pinches the mind is that while referring the statement of PW-6/I.O. at the start of operative paragraph 8, the trial court mentioned / reproduced the part of statement of said witness in following terms.- "8. As per the statement of PW-6 Qasim Zia SI/I.O., on 01.02.2018, he along with police party were present at Lehtrar Road Sanam Chowk Islamabad on account of patrolling duty; that on suspension he arrested the accused present in the Court and on his search five packets of heroin weighing 5264 grams and 135 grams of opium were recovered from black colour of bag which the accused was holding in his hand."
10. The portion of the statement ibid is absolutely in conflict with the statement of PW-6/Qasim Zia- SI, as the alleged occurrence took place on 02.11.2020 and not on 01.02.2018 and that, too, within the area of Bhinder Stop, Islamabad Highway and not at Lehtrar Road, Sanam Chowk, Islamabad. This aspect, on the face of it, reflects casual approach while deciding the case wherein the appellant had faced the trial for an offence that entails capital punishment and, therefore, in no way can be termed to be justified, in accordance with the principles of natural justice and also the judicial dispensation of a criminal case.
11. Another important aspect of the matter is that there is no reasoning at all for reaching at conclusion to hold the appellant guilty for the offence charged. The reasons gathered from the operative paragraphs at the most were to the effect that.- "Above said three material witnesses were subjected to cross examination by the defence but they remained knitted to the statement that the narcotic weighing 5264-grams of heroin and 135- grams of opium were recovered from the accused." (last sentence of paragraph 8 of the impugned judgment).
"The safe custody of the samples right from recovery till submission to the NIH has also been proved. It has also been verified through the report of Chemical Examiner Ex.P-G that recovered substance was narcotics." (paragraph 7 after reproducing the facts).
12. No reasons whatsoever had been given on the basis of which the trial court formed its opinion.
Section 47 of the Act of 1997 provides that the provisions of the Code of Criminal Procedure, 1898 (the Code) (including provisions relating to confirmation of a death sentence) shall apply, to trials and appeals before a Special Court under Act. The application of the procedure contained in the Code is mandatory for and to trials and appeals before a Special Court under the Act of 1997.
Chapter XXVI of the Code envisages mode of delivering the judgment, language of the judgment and contents of the judgment in section 366 and 367 thereto.
13. Section 367 (1) of the Code provides that every judgment shall, except as otherwise expressly provided by the Code, be written by the Presiding Officer of the Court or from the dictation of such Presiding Officer in the Language of the Court or in English; and shall contain the points or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the Presiding Officer in open Court at the time of pronouncing it and where it is not written by the Presiding Officer with his own hand, every page of such judgment shall be signed by him. The provision lays down that every judgment should contain the point or points for determination, the decision thereupon and the reasons for the decision. The latter requirement is sine qua non for the judicious dispensation of a criminal case. The reasons should be rational with the facts and the attending circumstances, being made basis to form any opinion. An opinion without reasons with reference to the facts/evidence cannot be termed to be a judicious dispensation which, of course, effects right of either party. The very structure of any judgment should flow from the facts/evidence, made basis to draw said opinion.
14. It had been the consistent view of the Hon'ble Apex Court that for judicial dispensation, the points for determination, decision thereupon and the reasons for decision are essential having binding status. In the case of "Ch. Abdul Kabeer v. Mian Abdul Wahid & others, (1968 SCMR 464), 3 Member Bench of the Hon'ble apex Court headed by C.J. A.R. Cornelius, graciously observed "it may, however, be pointed out that from judgment of single judge of the High Court a Letter Patent Appeal could be entertained and when important questions of law are in issue it would be all the more necessary that the Appellate Court must state points for determination, the decision thereon and the reasons for the decision."
15. Similarly, in the decision rendered by the 5 member Bench of the Hon'ble apex Court headed by C.J. S.A. Rahman, in the case of Mollah Ejahar Ali v. Government of East Pakistan and others(PLD 1970 S.C. 173), it was held that:- "To deal with the second contention first, there is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable in the substance in the petition which is accepted", should not be equally blessed.
This will reduce the whole judicial process to authoritarian decree without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncement investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardship and expenses involved do expect a patient and judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involve for their proper adjudication. The ultimate result may be reached by a laborious efforts, but if the final order does not bear an imprint of that efforts and on the contrary discloses arbitrariness of the thought and action, the feeling with the painful results, that justice has neither been done nor seems to have been done is inescapable. When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision had reached."
16. In the case of Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736), 5 member Bench held that the detailed reasons necessarily include the law and the grounds on which the decision is founded, apart from the reasons appearing from the case set out by the parties. In addition, guidance can also be taken from the dictum reported as "Iqbal Ahmad v. The State (2013 SCMR 271),The State through Mehmood Ahmad Butt v. Sharaf ud Din Sheikh and another (2013 SCMR 565), M/S MFMY Industries Limited & others v. Federation of Pakistan through Ministry of Commerce and others (2015 SCMR 1550) and Muzaffar Ali & 5 others v. The Collector Land Acquisition, Mirpur and 16 others (2020 YLR 451).
17. The failure of the Trial Court to specify the points for determination as required under section 367 of the Code is an omission, not curable under section 537 of the Code and absence of decision on the said points and want of reasons in the judgment amounts to an illegality that prejudices the case of the accused. Reliance is placed upon case of "Farrukh Sayya r and 2 others v. Chairman, NAB, Islamabad and others" [2004 SCMR 1].In this judgment the august Supreme Court has dealt with the question whether such a defect can be cured by a High Court itself without remanding the matter to the Trial Court, in the following manner.- "Learned counsel for the petitioners further contended that the High Court itself ought to have written the judgment instead of remanding the case which in fact amounts to retrial of the petitioners. The contention cannot prevail because; firstly, the case has been remanded for fresh hearing and judgment and not for retrial of the petitioners and, secondly, the remand order is in line with the law laid down by this Court in Sahab Khan v. The State 1997 SCMR 871. The judgment recorded by the High Court in that case did not meet the requirements of section 367, Cr.P.C. inasmuch as it neither dealt with the points for determination nor contained evaluation of the evidence and reasons for arriving at the conclusion.
18. In view of the above the impugned judgment is not legally sustainable as the failure of the Trial Court to specify the points for determination as required under section 367 of the Code is an omission, not curable under section 537 of the Code and absence of decision on the said points and want of reasons in the judgment amounts to an illegality which prejudices the case of the appellant. Consequently, the impugned judgment dated 10.09.2021 is set aside. The case is remanded for re-writing of the judgment afresh after hearing the parties in accordance with law on the subject without being influenced by any observation ibid which is restricted to appreciate the veracity of the impugned judgment and shall have no impact upon merits of the case. The learned Sessions Judge (East), Islamabad shall entrust the case to any other learned Presiding Officer having jurisdiction under the Act of 1997 for decision of the case in due course. Copy of this judgment shall be transmitted to all the concerned.
19. The instant appeal is allowed in the above terms.