' MUHAMMAD NASIM CHAUDHRY, 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 Ahmed, Constable P.W. (not produced). He was supervising the Nakabandi at Jasokendhone 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 Articles 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 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 defense on oath under section 340(2) of the Code of Criminal Procedure. In his defense 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 Articles 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 I A Article 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 L 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 commune observant non est. Referendum--- 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 the 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 resoled. 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 Qanun-e-Shahadat Order, 1984 according to which the acceptance or denial of 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 juice. We, therefore, accept this appeal, set aside the impugned judgment and acquit Khalid Nawaz appellant. He is enjoying the concession of bail. His bail bond is cancelled and surety discharged.
Appeal accepted.
1990 P Cr. L J 394 [Karachi] Before Mrs. Majida Razvi and Rasheed A. Razvi, JJ TAHIRUDDIN---Applicant versus THE STATE---Respondent Miscellaneous Applications Nos.410 and 411 of 1997 in Criminal Appeal No,174 of 1995, decided on 15th May, 1997.
Criminal Procedure Code (V of 1898)--- ----S. 561-A---West Pakistan Arms Ordinance (XX of 1965), S.13-D--Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7(2)---Suspension of sentence---Applicant/convict who had sought suspension of his sentence had contended that his appeal which was to be decided within three months under S.7(2) of Suppression of Terrorist Activities (Special Courts) Act, 1975 was not decided accordingly despite same was admitted in 1995---Prosecution witnesses who had not supported prosecution case, their statements had also indicated that correct facts were not mentioned in F.I.R. And that Mashirnama and charge-sheet cast doubt in regard to facts of case against the convict---Case against applicant/accused being hardship case, provisions of S.561-A, Cr.P.C. Could be invoked---Suspension of sentence, passed by Trial Court, was ordered pending final disposal of his appeal. [p. 395] A Abdul Khaliq v. The State PLD 1990 Kar. 448 ref.
Shahadat Awan for Applicant.
Muhammad Saleem, A.A.-G, for the State.
' This is an application under section 561-A, Cr.P.C. Filed on behalf of the accused/appellant praying for suspension of the sentence awarded to him by the Special Court of Suppression of Terrorist Activities, Karachi, and also to release him on bail.
' Mr. Shahadat Awan learned counsel for the appellant stated that the appellant was convicted by the trial Court on 14-9-1995 and the present appeal was filed on 11-10-1995 which was admitted on 19-10-1995 and although the paper book was prepared but the case could not proceed for no fault of the appellant. According to him this is a hardship case and he relied upon Full Bench decision of this Court in the case of Abdul Khaliq v. The State PLD 1990 Kar.
448. He has also relied on an unreported judgment, dated 25-5-1993 passed by a Division Bench of this Court wherein bail was granted in a similar case. According to the learned counsel section 7(2) of the Suppression of Terrorist Activities Act, 1975 provides that an appeal, filed by a convict is to be decided within three months but the present appeal which was admitted in 1993 has not proceeded since then. Although the allegations are that the appellant was carrying arms and ammunition but the prosecution witness No,1 clearly stated that he was stopped by the police and Rangers and was told that they have recovered arms and ammunitions from the persons whose names were also disclosed by them. He could not recognize the accused and stated that the ammunition in bag is too heavy and one person cannot carry the same. P.W.2 who is Inspector of Police, admitted that "bag with ammunition was lying on the street and Tahiruddin accused was butting his hands on it" which fact was not mentioned by him in the F.I.R. Mashirnama or in the charge-sheet submitted by him. It is further pointed out by the learned counsel that one Badar Iqbal was arrested along with the accused but was made Mashir subsequently and was not produced before the Court. The statement of the witness indicates the conduct of the Investigating Officer that the correct facts were not mentioned, in the F.I.R., Mashirnama or the charge-sheet casting doubts in regard to the facts of the case. There is no allegation of any firing or injury.
' In view of the circumstances that the case is a hardship case, we are of the opinion that the provision of section 561-A, Cr.P.C. Can be invoked. We, therefore, order the suspension of the sentence passed by the trial Court pending final disposal of this appeal and direct that the appellant shall be released on furnishing one surety in the sum of Rs, L,00,000 and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
2. Granted. Documents may be kept on record, which will be considered at the time of regular hearing.