WIQAR AHMAD, J.- Appellant Mukhtiar Ahmad, the then SHO of Police Station Dera-Town, D.J.Khan, has preferred instant criminal appeal against judgment, dated 13.9.2023, passed by learned Additional Sessions Judge-VI, D.I.Khan, whereby he was convicted under Section 32 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (hereinafter referred to as 'the Acts) and sentenced for 03 years imprisonment and a fine of Rs.1,00,000/- or in default thereof to undergo 02 months S.I.
2. Facts, in brief, leading to filing of instant appeal arc that on 12.6.2022, the appellant as complainant lodged a report that he received information that accused Barkat Ullah alias Nooni, whO was a notorious drug peddler and required in case FIR No.53/22, under Sections 9(d)/11(b)
CNSA of Police Station Paroa, D.l.Khan, was present in his house alongwith huge quantity of narcotics. Thus, he obtained a search warrant from concerned Judicial Magistrat. Thereafter he alongwith police party including lady constable rushed to house of the accused. After observing formality of pardah through lady constable, the house was raided. The accused was apprehended and charas weighing 3030 grams, wrapped in three packets and ice weighing 365 grams was recovered from his residential room. I-lence, a case vide FIR No.200. dated 12.6.2022, was registered under Sections 9(d)/11(b) of the Act, at Police Station Dera-Town, D.I.Khan.
3. After completion of investigation challan was submitted. Learned trial Court framed formal charge against the accused, recorded pro and contra evidence and after hearing arguments, acquitted the accused vide judgment, dated 22.3.2023 and issued a show cause notice to the appellant under section 32 of the Act for violating the provision of section 103 Cr.PC. The appellant submitted his reply. After hearing arguments, the learned trial Court convicted the appellant, as referred in preceding Para-1, vide impugned judgment, dated 13.9.2023.
4. Learned counsel for the appellant contended that the appellant was convicted under Section 32 of the Act and sentenced for a term of three years imprisonment alongwith line of Rs.1,00,000/- without any regular trial, therefore, the impugned order was not sustainable in the eyes of law. He also contended that offence under Section 32 of the Act was not at all constituted in the case as the element of vexatious entry was missing. Learned counsel also placed reliance on the cases of Karl John Joseph v. The State (PLO 2004 Supreme Court, 394), Mushtaq Ahmad v. The State throkeh Deputy Attorney General, Khyber Pakhtunkhwa, Peshawar and another (2020 P Cr. LJ 1618 [Peshawar]), Abdul Hafeez v. Mahmood Ahmad alias Mooda and another (2016 P Cr.LJ 275 [Lahore]), Muhammad Jabal Nawaz v. The State (2019 MLD 954 [Sindh] and Saiful Hussain alias Faisal Hussain and 2 others v. The State (2013 MLD) 1431 [Sindh]).
5. Learned Addi: A.G. submitted in rebuttal that facts of the case are mostly admitted which included conducting of the raid as well as presence of the ladies inside the house, therefore, there was no need of trial in the case and the impugned conviction and sentence need no interference by this Court. He placed reliance on judgment of Hon'ble Sindh High Court reported as Asadullah v.
The State (2014 MLD 121).
6. I have heard arguments of learned counsel for the parties and perused the record.
7. Perusal of record reveals that learned Additional Sessions Judge-VILISC, D.I.Khan vide judgment, dated 22.3.2023, while acquitting accused Barkat Ullah, in a case registered vide FIR No.200, dated 12.6.2022, registered under Section 9(d)/11(b) of the Act, at Police Station Dera-Town, D.I.Khan, issued following show cause notice to the appellant: Whereas a criminal case FIR No.200 dated 12.6.2022 was registered at PS Dera Town D.I.Khan under sections 9-D/11-B of 10 CNSA registered against the accused Barkat Ullah, wherein it is established that you entered into the dwelling house of the accused Barkat Ullah without compliance of section 103 of the Code and did not give an opportunity to the women of such dwelling house to observe pardah, as provided in sub-section (1) of section 27 which is violation of section 32 of the Control of Narcotics Substances Act, 2019.
You are hereby asked, through this show cause notice, why you should not be criminally proceeded against under section 32 for vexatious entry, search, seiner or arrest which shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lac but shall not be less than rupees fifty thousand.
8. On submission of reply to the show cause notice, the learned trial Court heard arguments and resultantly convicted the appellant vide impugned judgment, dated 13.9.2022.
9. Section 32 has been providing punishment for vexatious entry, search, seiner and arrest of a person which is reproduced as under:
32. Punishment for vexatious entry, search, seizure or arrest.---An officer authorized under section 27 of this Act, who,
(a) without reasonable grounds of suspicion, enters or searches or causes to be entered or searched any building, place, premises, dwelling house or conveyance;
(b) vexatious and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic substances or any other article or document relating to any offence under this Act;
(c) enters into dwelling house without compliance of section 103 of the Code or does not give an opportunity to the women of such dwelling house to observe pardah, as provided in sub-section (1) of section 27; and
(d) vexatious and unnecessarily, 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 rupees one lac but shall not be less than rupees fifty thousand.
10. Here in the case in hand, the learned trial Court convicted the appellant and awarded penalty under clause (c) of section 32 mainly for violation of section 103 Cr.PC and not providing an opportunity to the women of dwelling house to observe pardah. The learned trial Court, after forming a tentative opinion that the appellant had violated the section 27 as well as section 31 of the Act and was liable to punishment under section 32, had issued a show cause notice and on receipt of the reply, convicted and sentenced the appellant. In other words, the appellant had never been put to trial nor had any evidence been recorded or he had been confronted with the pieces of evidence as required under Section 342 Cr.PC.
II. In order to know the procedure for the trial, I would have to refer to the provisions of the Act beside the substantive provision of punishment, the procedure for arrest, seiner, investigation and appeals which has been provided to some extent in the Act itself while the remaining part of the procedure has been left to be regulated according to the Criminal Procedure Code, 1898. Section 26 of the Act is relevant in this respect wherein it is provided that except as otherwise provided in the Act, the provisions of the Code shall mutatis mutandis apply to all proceedings under the Act.
Section 21 of the Act is of utmost significance in the context of present discourse which is reproduced hereunder for ready reference:
21. Offence cognizable and non-bailable.--All the offences under this Act shall be cognizable and non-bailable. it has categorically been laid down in the above referred section of law that all the offences under the Act would be cognizable and non-bailable. Reading of section 21 can only lead to one inference that the offence under section 32 would also be cognizable and non-bailable. No exception has been provided in section 21. Due to the connotation "all the offences under the Act" no other interpretation could be placed on section 21 of the Act. Here we may consider section 55 of the Act in the context of lodging FIR against person authorized under the Act or exercising powers thereunder. Section 55 is also reproduced hereunder for ready reference:
55. Indemnity.---No suit, prosecution or other proceedings shall lie against Government or any officer of the Department and Police Establishment for anything, in good faith, done or intended to be done in pursuance of this Act or the rules.
The section of law providing for indemnity cannot be equated with immunity for the reason that the section by itself requires "good faith" for claiming benefit thereof. If a Court makes a tentative opinion on conclusion of trial of an accused that action in good faith is missing in given circumstances of case, then the Court can, while proceeding further, issue direction to appropriate police station to lodge an FIR against the authorized officer who is found to have violated section 32 of the Act. A Court cannot be deemed divested of the powers to issue directions for lodging such a report (under section 55) for the additional reason that same act while providing indemnity against prosecution is itself providing in section 32 thereof, punishment for vexatious entry, search, seiner and arrest of a person. Section 55 cannot be read in isolation but it had to be read alongwith other provisions of the Act including section 32. Reading the two sections together lead to one inference that the indemnity clause would not be having the effect of preventing trial Court or Appellate Court, from lodging prosecution against an authorized officer under section 32, if the essential clement for constitution of offence are found forthcoming. This is the only way in which both the sections can be reconciled together and read harmoniously. While rendering judgment in the case of "Commissioner of Income Tax v. MIS. Hindustan Bulk Carriers" (2003) 259 ITR 449 (SC), the Supreme Court of India laid down the following principles for harmonious construction:-
1. The Courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions.
2. The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its efforts, is unable to find a way to reconcile their differences.
3. When it is impossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such a way so that effect is given both the provisions as much as possible.
4. Courts must also keep in mind that interpretation that reduces one provision to a useless number or dead is not harmonious construction.
5. To harmonize is not to destroy any statutory provision or to render it fruitless.
12. Here, in this case also, the conflict between Section 32 of the Act and Section 55 of the Act can only be resolved by reading the two sections together. The indemnity provided under section 55 is, therefore, to he decided on the basis of evidence to be led before the trial Court but same cannot be taken to be absolute immunity. Once the Court comes to a conclusion tentatively and forms an opinion that the offence under Section 32 is forthcoming in a case then the course open to such Court would be to direct the appropriate police station to register a separate FIR against the authorized officer. Before ordering registration of FIR against an authorized officer the court will have to form a tentative opinion on the basis of material present before it. For said purpose, a show-cause notice should also be served on the authorized officer and lie should be provided an opportunity of hearing before lodging criminal prosecution against him. After such an FIR is registered, investigation of the case would automatically trigger. Regarding the police station where such FIR is supposed to be lodged the Act was also containing section 44 which was providing as follows:
44. Establishment of Excise Police Station.- --(1) Department with the approval of Chief Minister] shall, by notification in official Gazette, establish such number of Excise Police Stations, as may be required, from time to time: Provided that till the establishment of Excise Police Station, the existing District officers of the Directorate-General shall perform the functions of Excise Police Station.
(2) The Department, in consultation with Secretary to Government, Home and Tribal Affairs Department may declare one or more existing police stations under the Khyber Pakhtunkhwa Police Act. 2017, as Police Station for the purposes of this Act.
(3) Upon establishment of new Excise Police Stations, the Circle Officers shall be designated for the purpose of management of one or more such police stations in the manner as may be prescribed.
(4) Subject to section 58A, the Department may, in consultation with the Regional Director, declare one or more existing ANF Police Stations, to be the Police Stations under this Act.
The above reproduced provision leads no doubt an FIR would be lodged. Similarly, regarding investigation of the case, section 45 has been provided which reads as under:
45. Powers to invest. ---(1) Department may, invest any officer of Department or ANF Police Establishment, or any officer of law enforcement agency within their respective jurisdiction with the powers of an officer-in-charge of a Police Station for the investigation of offence under this Act.
(2) An authorized officer may, investigate any case registered under this Act, in the area of his jurisdiction and may exercise the powers of investigation provided in Chapter 14 of the Code.
13. In accordance with section 45 of the Act read with Chapter 14 of Criminal Procedure Code investigations arc to be conducted by another authorized officer. At the conclusion of investigation report is to be submitted to the learned trial Court in the form of challan like in rest of the cases and then the special Court is supposed to conduct trial in the case having exclusive jurisdiction to try the case under Section 23 of the Act. After registration of the FIR, the procedure of investigation, trial, appeal and execution of the sentence etc as provided under the law (the Act and Cr.P.C) is supposed to be followed. During the trial, however, the accused (authorized officer) would have an opportunity of raising the defence of section 55 of the Act and same should be decided according to the facts and circumstances of the case and evidence available before the trial Court in the subsequent trial.
14. Judging the instant case on the above mentioned touchstone, this Court naturally comes to the conclusion that the conviction and sentence awarded to the appellant without any investigation and trial is not sustainable. Resultantly, this appeal is partially allowed, the impugned judgment, dated 13.9.2023 is set aside and the matter is remanded to the learned trial Court with the direction to decide same strictly in accordance with law in the light of above observations.