MUHAMMAD YASEEN vs THE STATE
This criminal appeal challenges an order passed by an Additional Sessions Judge, Lahore, which dismissed the appellant’s application for acquittal filed under Section 265-K of the Code of Criminal Procedure 1898. The appellant was implicated in a narcotics case based solely on the statement of a co-accused, Safdar Khan, who was apprehended with narcotics. The core legal question was whether the trial court erred in dismissing the acquittal application by relying on the appellant's alleged absconsion and a misreading of the First Information Report regarding the appellant's possession of the narcotics. The High Court held that the trial court’s order was infirm and sketchy, as it misread the record and failed to properly evaluate the merits of the case. The Court set aside the impugned order and remanded the matter for a fresh decision. The key principle laid down is that absconsion, standing alone, is insufficient to justify the denial of an acquittal application, and trial courts must carefully weigh the record to assess the probability of conviction before dismissing such applications.
- Can an application for acquittal under Section 265-K of the Code of Criminal Procedure 1898 be dismissed solely on the ground of the accused's absconsion?
- Does the misreading of the contents of a First Information Report by a trial court constitute valid grounds for setting aside an order dismissing an acquittal application?
- Is absconsion per se sufficient evidence to warrant the denial of an acquittal application in a criminal trial?
- Section 265-K, Code of Criminal Procedure 1898
- Section 15, Control of Narcotic Substances Act 1997
- Section 6, Control of Narcotic Substances Act 1997
- Section 9, Control of Narcotic Substances Act 1997
' ALI NAWAZ CHOWHAN, J.---Through this criminal appeal an order dated 10-3-2005 given by an Additional Sessions Judge, Lahore, is being questioned whereby he dismissed the application made under section 265-K, Cr.P.C. By the appellant Muhammad Yaseen.
2. The matter pertains to case F.I.R. 448, dated 4-12-2002 registered under sections 15 and 6/9 of the Control of Narcotic Substances Act, 1997 at Police Station, Shera Kot, Lahore.
3. The story as narrated in the F.I.R. By the Sub-Inspector, Islampura Circle, Lahore, was that on a spy information when he stopped out car he found the driver Safdar Khan in it whom he arrested while his companion made good his escape. It was on the basis of the statement of said Safdar Khan he was proceeding against Yaseen. The following excerpt from the F.I.R. Is reproduced below. {{URDU TEXT}}
4. According to the learned counsel the statement of an accomplice had scant value in law. That the fact is that the narcotics in question were never delivered to said Yaseen and, therefore, Yaseen never came in possession of these and, as such, no offence was committed by Yaseen even if what Safdar Khan was stating was true.
5. However, the learned Court below was not persuaded by his arguments and it made the following observation while disposing of his application under section 265-K, Cr.P.C. And these are reproduced below:- ' On the assertion that on the same day at 3-00 p.m. Safdar Khan accused was apprehended by the Police and Charas weighting 75-KG was recovered from his car and he indicated that he purchased the said Charas from Yaseen, present petitioner. Now Yaseen, petitioner has filed the application under section 265-K, Cr.P.C. For his acquittal. It is evident from the file that incriminating evidence is available against the present petitioner. Moreover, firstly challan was submitted In respect of Sadar Khan, co-accused and Yaseen present petitioner remained absconder.
Absconsion of the accused Yaseen is sufficient ground to disallow his application, hence the application is dismissed."
6. At the very outset the learned counsel pointed out that there is a misreading on the part of the learned trial Court of the record because it is nowhere given in the F.I.R. That the Charas in question was purchased from Muhammad Yaseen who was being shown as a prospective recipient and who had not as yet received the consignment.
7. Learned counsel was, therefore, of the view that even if this case proceed further it will be an exercise in futility which will not result in any conviction of the said Muhammad Yaseen.
8. Muhammad Yaseen, it is said may be an alleged absconder but abscondence simpliciter is not per se a fact to be read against the appellant.
9. Firstly we find misreading of the F.I.R. Itself by the learned trial Court and secondly, we are of the view that abscondence in record remains an allegation until it is linked with the necessary mens rea.
10. We, therefore, are of the further view that the order in question is infirm, it is sketchy and it does not properly meet the arguments which had been addressed. We, therefore, set it aside and remit the case back to the learned trial Court with directions that he consulted the record weighed the possibilities of the ultimate result of the case ending in conviction or acquittal of the appellant.
Parties are directed to appear there on the date already fixed. We further direct that the learned trial Court will not proceed further in the matter until this matter is disposed of on the basis of record of which the learned trial Court is itself the repository. Disposed of.