ASADULLAH vs The STATE

SAJJAD ALI SHAH, J.---The appellant has called in question order dated 26-6-2009 passed in Sessions Case No.64 of 2008 by learned Special Court for Narcotics, Badin, whereby the appellant an Excise Inspector for arresting an innocent person and imputing an offence under sections 6, 9(b) of CNS Act 1997 was convicted under section 26(c) of CNS Act, 1997 and sentenced to suffer simple imprisonment for two years and to pay fine of Rs.20,000.

2. Syed Madad Ali Shah, learned counsel for the appellant contends that the appellant who is an Excise Inspector after recovering 300 grams of charas arrested one Muhammad Umer in Crime No.4 of 2008, Excise Police Station, Badin and submitted challan for an offence under section 9(b) before the Special Court for Narcotics Badin. Per counsel, the trial Court after regular trial acquitted the accused Muhammad Umer and issue show-cause notice to the appellant being Investigating Officer of the Crime No.4 of 2008 to explain as to why he should not be convicted under section 26(c) of CNS Act, 1997 for filing a false case. The appellant submitted his detailed reply and the trial Court while discarding the reply, convicted the appellant 'under section 26(c) of CNS Act and sentenced him to suffer simple imprisonment for two years and fine of Rs.20,000.

3. It is contended by the counsel that the trial Court after rejection of the response to the show- cause notice was supposed to frame a charge after supplying of all necessary documents to the appellant and ought to have follow the procedure prescribed either under Chapter XX or XXI of the Code of Criminal Procedure. Per counsel, conviction of the appellant is without providing an opportunity of hearing. It is lastly contended that since the acquittal is based on considering the defence plea and newspaper reporting produced by the accused of Crime No.4 of 2()03 in his statement under section 342 Cr.P.C. therefore, the appellant was entitled to cross examine the accused.

4. On the other hand, Mr. Kalhoro learned Addl. P.G. conceded that in the circumstances the trial Court ought to have adopted summary procedure for criminal trial as provided under Chapter-XX of Cr.P.C. in order to provide a proper opportunity of hearing to the appellant.

5. We have heard the learned counsel for the appellant as well all Addl. P.G. for the State and perused the record.

6. The scrutiny of record reflects that the appellant an Excise Inspector upon recovery of 300 grams of charas arrested one Muhammad Umer in Crime No.4 of 2008 under section 9(b) of the Control of Narcotic Substances Act, 1997 and on 29-2-2008 submitted final investigation report in the Special Court for Narcotics Badin. The report disclosed that on 28-2-2008, the appellant along with his subordinate staff in official vehicle when reached near Hyderabad Bus Stop Badin. City he saw a person who after seeing the police party tried to escape but was apprehended. On inquiry he disclosed his name as Muhammad Umer and on his personal search two pieces of charas wrapped in a plastic bag from the pocket of his trouser Weighing 300 grams were recovered; 10 grams were separated and sent for the purposes of chemical analysis and the remaining was sealed separately; memo of arrest and recovery was prepared. The trial Court framed charge against the accused and on his not pleading guilty tried him in accordance with law.

7. From the prosecution side the evidence of Ali Ahmed Buledi Excise P:C. and the accused Excise Inspector Asadullah Malik was recorded as P.W.1 and P.W.2 respectively. P.W.1 produced memo of arrest and recovery as Exh.5 whereas P.W.2. affirmed Exh.P-5 and produced daily diary entry report No.7 as Exh.7, F.I.R. as Exh.8, Chemical Examiner report as Exh.9. Thereafter the accused got his statement under section 342 recorded which reads as follows:-- "I had been arrested by the P. W.2 complainant Excise inspector Abdullah(sic) from Hyderabad and brought one at Badin and later-on contraband charas was foisted upon me. I produce news cutting appearing in daily Sindhi newspaper namely "Faisla" from Hyderabad dated 1-3-2008 as Exh.12 and also' daily "Pak" Sindhi newspaper from Hyderabad as Exh.13. 1 also produce affidavit dated 29-10-2007 of may wife Mst. Bushra and Nikahnama dated 29-10-2007 as Exhs.14 and 15 (originals of 'Exhs.14 and 15 have been seen and returned. Photostat copies retained as record). I have been falsely implicated in this case. I am innocent and pray for justice."

7. The learned Judge while acquitting the accused besides believing he accused of Crime No.4 of 2008 was arrested by the appellant from Hyderabad and brought to Badin also observed that the appellant had arrested accused Muhammad Umer at the instance of the parents of his wife as he had married their daughter without their consent but such observations are not supported through the defence reproduced above. In view of the fact that acquittal was recorded by the trial Court on plea of defence, therefore, in our view the appellant was entitled to a summary trial enabling him to cross-examine the accused whose statement under section 342 Cr.P.C. was accepted as gospel truth. The learned trial Court further erred upon relying on the newspaper cuttings without being produced in the manner as provided under the law.

8. In view of what has been discussed above, we while accepting this appeal set aside the impugned order whereby the appellant was convicted and sentenced to suffer imprisonment for two years and to pay fine of Rs.20000 and remand the case to the trial Court to proceed the same in accordance with law.