BASHIR AHMAD alias BASHIRI vs THE STATE and others
This criminal appeal challenges an order of the Additional Sessions Judge/Judge Special Court, Kasur, which dismissed the appellant's application under Section 265-K of the Code of Criminal Procedure 1898. The appellant was charged under Section 9(c) of the Control of Narcotic Substances Act 1997 for possession of 1050 grams of Charas. Subsequent police investigations revealed that the recovery was planted by the arresting officer, Khalil Ahmad, A.S.-I., who was subsequently charged for the same offence. The core legal question was whether the appellant's trial should proceed when the prosecution itself, through a subsequent report under Section 173 of the Code of Criminal Procedure 1898, alleged the recovery was false and planted. The Court held that proceeding with the trial would be an exercise in futility and a waste of judicial resources, as the evidence (the narcotic substance) was required for the trial of the police officer who planted it. Consequently, the Court set aside the impugned order, allowed the application under Section 265-K, and acquitted the appellant.
- Can an accused be acquitted under Section 265-K of the Code of Criminal Procedure 1898 when subsequent police investigation declares the recovery to be planted?
- Is a trial an exercise in futility when the prosecution's own subsequent report exonerates the accused?
- Should a trial proceed if the evidence against the accused is the same evidence required to prosecute the police officer who allegedly planted it?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 173, Code of Criminal Procedure 1898
- Section 265-K, Code of Criminal Procedure 1898
' SH. ABDUR RASHID, J.----Bashir Ahmad appellant was arrested in case F.I.R. No,347, dated 18-8- 2003, under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Saddar Raiwind, District Kasur with the allegations that Khalil Ahmad, A.S.-I., of the said police station had apprehended him and recovered from his possession 1050 grams of Charas. Upon completion of the investigation, report under section 173, Cr.P.C. Had been submitted against him.
Thereafter, the appellant's father submitted an application before the District Police Officer, Kasur alleging that Khalil Ahmad, A.S.-I. Had made out a fake case against him by planting the narcotic substance and during the investigations conducted by the superior police officers, it was found that false recovery had been planted upon the appellant by Khalil Ahmad, A.S.-I. Subsequently, the said A.S.-I. Had also been arrested in this case and a report under section 173, Cr.P.C. That he had committed offence under section 9(c) of the Control of Narcotic Substances Act, 1997 had been submitted against him as well. The appellant filed an application under section 265-K, Cr.P.C.
Seeking his acquittal on the ground that he had been falsely challaned. Vide impugned order dated 20-10-2004, the Additional Sessions Judge/Judge Special Court, Kasur dismissed the appellant's application. Feeling aggrieved this appeal has been filed.
2. Both the sides have been heard at length and the record perused. It is borne out from the record that in the subsequent report under section 173, Cr.P.C. It had been positively alleged that the narcotic substances had been planted by Khalil Ahmad, A.S.-I. Upon the appellant, and the same was not recovered from him and consequently the case was recommended to be cancelled against the appellant. Since the charge had already been framed against the appellant, therefore, the case could not be cancelled, which constrained the appellant to file an application under section 265-K, Cr.P.C. The trial Court has failed to appreciate that in the subsequent report under section 173, Cr.P.C. It had been positively alleged that the narcotic substance was planted by Khalil Ahmad, A.S.-I. And in the trial of the said A.S.-I., this narcotic substance will be exhibited against him, leaving no other narcotic substance to be exhibited on the file, if trial of the appellant is held.
Therefore, the appellant's trial is only going to be an exercise in futility and wastage of the time of the Court as well as of the prosecution.
3. The State by submitting the subsequent report under section 173, Cr.P.C. Against Khalil Ahmad, A.S.-I., does not support this case against the appellant, therefore, by accepting this appeal, we set aside the impugned order, allow the appellant's application under section 25-K, Cr.P.C. And acquit him of the charge. The appellant is on bail and stands discharged of his bail bonds.