' MUHAMMAD NASEEM CHAUDHRI, J.--- This Appeal is directed against the judgment, dated 31-10- 1996 passed by the learned Special Judge/Sessions Judge, Okara whereby he convicted and sentenced Khalid Nawaz appellant son of Nawab caste Wattoo resident of Wan Mahteke, Tehsil Depalpur, District Okara to undergo R.I. For a period of three years under section 9 of the Control of Narcotic Substances Ordinance VI of 1995. The appellant was allowed the legal benefit contained under section 382-B, Cr. P. C .
2. The facts giving rise to this appeal are that on 26-8-1995 at 3-00 p.m. Muhammad Bashir A.S.-I.
P.W.3 posted in Police Station Sadar Depalpur was on Gasht of the area alongwith Abdur Razzaq, Constable P.W,4 and Saeed Ahmad, Constable P.W. (not produced). He was supervising the Nakabandi at Jasokedhone bridge when a person arrived on a cycle. He was found to be suspicious and stopped. He was Khalid Nawaz appellant. His person was searched when heroin wrapped in a polythene bag was recovered from the right flank, pocket. Its weight was 12 grams.
Two grams of heroin was sealed in one parcel while the remaining heroin was sealed in another parcel. The memo. Of recovery Exh.P.B. Attested by Abdur Razzaq P.W.4 and Saeed Ahmad P.W. (not produced) was prepared. Site plan Exh.P.C. Of the place of recovery was also drafted. Muhammad Bashir, A.S.-I. Complainant sent complaint Exh.P.A. To the S.H.O., Police Station Sadar Depalpur, District Okara where formal F.I.R. Exh.P.A./1 was prepared by Noor Muhammad, Head Constable P.W.1. Both the sealed parcels containing the heroin were handed over to Noor Muhammad, Head Constable P.W.1. He delivered one packet to Muhammad Anwar P.W.2 which he handed over in the office of Chemical Examiner, Lahore from where report Exh.P.D. Was received in the positive. The challan was submitted before the trial Court. Khalid Nawaz appellant was charged .Under Article 9 of the Control of Narcotic Substances Ordinance VI of 1995 who pleaded not guilty thereto and claimed to be tried.
3. At the trial the aforesaid P.Ws. Stood in the witness-box and supported the prosecution case. At one stage the effort was made to decide the case on special oath of Muhammad Bashir A.S.-I.
Complainant with respect to the recovery of the heroin which could not materialize.
4. When examined under section 342 of the Code of Criminal Procedure Khalid Nawaz appellant claimed to be innocent who termed the aforesaid recovery as false and concocted. He did not claim the heroin. He did not choose to appear in his own defence on Oath under section 340(2) of the Code of Criminal Procedure. In his defence he produced Ghulam Ali D.W.1, Jaffar Ali D.W.2 and Muhammad Hussain D.W.3 who stated about his innocence and deposed that due to the enmity of Khalid Nawaz appellant with one Falak Sher who was having the connection with Muhammad Ali Constable he was falsely involved. After hearing the parties the learned trial Court gave the weight to the recovery effected by Muhammad Bashir A.S.-I. And convicted Khalid Nawaz appellant as narrated above who has preferred this appeal which has been resisted by the State.
5. We have heard the learned counsel for Khalid Nawaz appellant as well as the learned State counsel and gone through the record before us. Learned counsel for the appellant has referred to sections 21 and 22 of the Control of Narcotic Substances Ordinance VI of 1995 applicable on the relevant date of recovery (26-8-1995) and argued that an officer not below the rank of Sub- Inspector of Police could not seize in any public place or in transit the narcotics, drugs etc and also could not detain or search any person whom he had reason to believe to have committed an offence punishable under the Ordinance who was not competent to arrest him. As against the aforesaid provisions of law learned counsel for the State could not bring to our notice any codified law. A perusal of section 22 of the Control of Narcotic Substances Ordinance VI of 1995 when read in the light of Article 21 of the same Ordinance has made us to hold that Muhammad Bashir A.S.-I.
Was not competent and having the authority to detain, search and arrest Khalid Nawaz appellant for the recovery of the narcotics. We express the view that the power and authority to set the law in motion is linked with the substantive jurisdiction without which the proceedings could not be initiated and consequently could not be processed with by Muhammad Bashir A.S.-I. It would also be proper to refer the maxim:--- A communi observantia non est recedendum.---Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, the same would not be lawful.
' If the working of Muhammad Bashir A.S.-I. Is affirmed there would be administrative chaos resulting in the judicial anarchy. This is the crux of the matter to make us pass the order of exoneration of Khalid Nawaz appellant.
6. The recovery memo Exh.P.B. Is attested by Abdur Razzaq Constable P.W.4 and no person from the public was joined. Muhammad Bashir complainant had no jurisdiction to detain, search and arrest Khalid Nawaz appellant as expressed and held above. Viewed in this perspective, the alleged recovery witnessed by a subordinate of Muhammad Bashir A.S.-I. Shall have to be viewed with caution and the same, as such, has no legal force.
7. We have seen with grave concern that an effort was made by the trial Court to decide the case on special oath of Muhammad Bashir A.S.-I. With respect to the recovery of the heroin. Initially Khalid Nawaz appellant agreed but later on resiled. In our view the aforesaid portion of the working of trial Court cannot be approved keeping in view the mandatory provisions contained under Article 163 of the Qanoon-e-Shahadat Order, 1984 according to which the acceptance or denial of the claim on Oath with respect to a civil dispute has been provided and allowed while according to para 3 of the aforesaid Article 163 "Nothing in this article applies to laws relating to the Enforcement of Hudood or other criminal cases." It means that the criminal case could not be decided on the special oath of Muhammad Bashir A.S.-I. P.W.3. The aforesaid working, even if carried on, would have proved to be an exercise in futility. It would be instructive to pass the remark that trial Court should refrain from deciding the criminal cases on oath.
8. For what has been said above, we hold that Muhammad Bashir A.S.-I. P.W.3, Police Station Sadar, Depalpur District Okara had no jurisdiction to initiate the proceedings against Khalid Nawaz appellant. The sentence recorded against him is held to be illegal being coram non judice. We, therefore, accept this appeal, set aside the impugned judgment and acquit Khalid Nawaz appellant. He is enjoying the concession of ball. His bail bond is cancelled and surety, discharged.