Khalid Mehmood Versus State Malik Zia Shafiq

Order

Through instant criminal appeal filed under Section: 48 of the Control of Narcotic Substances Act, 1997, Khalid Mehmood (appellant/accused in case arising out of FIR No.28/2024 dated: 23.05.2024 registered under Sections: 9 (1) 2(d), 14 and 15 of the Control of Narcotic Substances Act, 1997 at Police Station: ANF, District: Faisalabad) has challenged the vires of order dated: 26.01.2026 passed by learned Additional Sessions Judge, Faisalabad/trial court, whereby application under Section: 265-K Cr.P.C. filed by him for his acquittal, has been dismissed; relevant portion of the impugned order is hereby reproduced as under:-

2.Brief however necessary facts for decision of instant appeal are that as per case of prosecution, poppy straw weighing 2400-kilograms was recovered from present appellant and his co-accused who were transporting the same, report under Section: 173 Cr.P.C. was submitted in the Court, copies under Section: 265-C Cr.P.C. were delivered to the accused persons including present appellant and charge was framed against them on 23.09.2024; copy of the charge sheet is available at Page No.10-11 of instant appeal and the same is hereby scanned below for ready reference: -

3.Learned counsel for the appellant submits that impugned order is against the law and facts of the case therefore same is liable to be set aside.

On Court s query, he submits that though report of Punjab Forensic Science Agency in this case has been received yet same has still not been exhibited in the case.

4.Learned Deputy Prosecutor General has supported the impugned order.

5.Arguments heard and record appended with the appeal perused.

6.It has been noticed that as per case of prosecution, poppy straw weighing 2400-kilograms was recovered from present appellant and his co-accused. Poppy Straw has been defined under Section: 2 (w) of the Control of Narcotic Substances Act, 1997 and for ready reference, same is hereby reproduced as under: -

poppy straw means all the parts, except the seeds, of the opium poppy after mowing;

(emphasis added)

Perusal of aforementioned definition clearly reveals that poppy straw means all the parts, except the seeds, of the opium after mowing. It (poppy straw) is a narcotic drug as defined under Section: 2(s) of the Act (ibid), which is hereby reproduced below for ready reference: -

narcotic drug means coca leaf, cannabis, heroin, opium, poppy straw and all manufactured drugs;

(emphasis added)

Furthermore, it has been categorically mentioned in Section: 6 of the Act (ibid) that no one shall produce, manufacture, extract, prepare, possess , offer for sale, sell, purchase, distribute, deliver, transport , dispatch, any narcotic drug , psychotropic substance or controlled substance; for ready reference, Section: 6 of the Act (ibid) is hereby reproduced as under: -

(emphasis added)

Similarly, import of narcotic drug into Pakistan, export from Pakistan, transport within Pakistan or tranship of any narcotic drug , psychotropic substance or controlled substance has been prohibited under Section: 7 of the Act (ibid), which is hereby reproduced below for ready reference: -

7.Prohibition of import or export of narcotic drugs, etc. (1) No one shall

(emphasis added)

Likewise, trafficking in or financing the trafficking of narcotic drugs etc. has also been prohibited under Section: 8 of the Act (ibid), which is also hereby reproduced as under: -

8.Prohibition on trafficking or financing the trafficking of narcotic drugs etc. No one shall (a) organize, manage, traffic in , or finance the import, transport, manufacturing or trafficking of, narcotic drugs, psychotropic substances or controlled substances; or

(emphasis added)

Contravention of Sections: 6, 7 and 8 (mentioned above) has been made punishable under Section: 9 of the Act ( ibid ) and punishment to the extent of Post ( پوست ) or Poppy Straw has been mentioned in Section: 9(1) 2(a), (b), (c) and (d) of the Act (ibid) which are scanned below for ready reference: -

It is relevant to mention here that cases which are to be tried by the Magistrate under Chapter XX of the Code of Criminal Procedure Code, 1898 (hereinafter to be referred as Code ), Magistrate has the power to acquit the accused at any stage of the case under Section: 249-A of the Code ( ibid ) if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence; for ready reference, Section: 249-A of the Code (ibid) is hereby reproduced as under: -

And for the cases triable by Court of Sessions under Chapter XXII-A of the Code (ibid), Court can acquit the accused at any stage of the case if after hearing the prosecutor and the accused and for the reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence; Section: 265-K of the Code (ibid) is also hereby reproduced below for ready reference: -

When language of Section: 249-A is compared with the language of Section: 265-K of the Code ( ibid ), then it becomes crystal clear that Magistrate can acquit the accused at any stage of the case under Section: 249-A Cr.P.C. if he considers that the charge is groundless or there is no probability of the accused being convicted of any offence whereas under Section: 265-K Cr.P.C., Court can acquit the accused at any stage of the case only if he considers that there is no probability of the accused being convicted of any offence and the reason for acquittal that charge is groundless, is not included in the same.

It is quite understandable that legislature in its wisdom gave power under Section: 249-A Cr.P.C. to the Magistrate to acquit the accused at any stage of the case if charge is groundless or there is no probability of conviction for the reason that punishments for the offences triable by the Court of Magistrates are lesser as compared to the punishments provided for the offences triable by the Court of Sessions, therefore, if Magistrate comes to the conclusion that on the basis of material/evidence available on the record, charge is groundless, he can acquit the accused under Section: 249-A Cr.P.C. and furthermore, if he finds that such material has come on the record that now there is no probability of the accused being convicted of any offence, he can also acquit the accused under Section: 249-A Cr.P.C. whereas since offences triable by the Court of Sessions are of heinous/ serious nature entailing heavy punishments, therefore, acquittal of the accused on the basis of charge is groundless is not provided in Section: 265-K Cr.P.C. and prosecution is to be afforded full and complete opportunity to produce evidence for proving the case and in this regard, Subsection (2) of Section: 265-F Cr.P.C. can also be safely referred, according to which, Court shall ascertain from the Public Prosecutor or, as the case may be from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it; for ready reference, Subsection (2) of Section: 265-F Cr.P.C. is hereby reproduced below: -

However, if Court finds that there is no probability of conviction of the accused of any offence only then, he can be acquitted at any stage of the case under Section: 265-K Cr.P.C. i.e. if evidence/material of such nature has come on the record that further evidence of any nature/kind whatsoever cannot result into conviction of the accused, then he can be acquitted under Section: 265-K Cr.P.C.

Nutshell in simple words at the cost of repetition is that under Section: 249-A Cr.P.C. if the material/evidence available on the record makes the charge groundless, accused can be acquitted and similarly, such sort of material/evidence if comes on the record, which has made the conviction impossible, even then accused can be acquitted under Section: 249-A Cr.P.C. whereas under Section: 265-K Cr.P.C., accused can be acquitted at any stage of the case by the Court of Sessions if such sort of material/evidence comes on the record, which makes the conviction impossible and any further evidence cannot change the result.

Since in this case charge has been framed as per material available on the record, Muhammad Bilal, HC/Moharrar has been produced as PW-1 whose examination-in-chief has been recorded however cross-examination over him has been reserved on behalf of the accused persons and any evidence is not available on the record till now to show that there is no probability of conviction of the accused/ appellant of any offence, therefore, in such circumstances, there is no occasion for exercising power under Section: 265-K Cr.P.C. and throttling the case of prosecution at its infancy i.e. initial stage. Furthermore, it is clarified that for invoking power under Section: 265-K Cr.P.C., material/evidence available is not only relevant but material/evidence, which can be produced, and if produced, can cause conviction of the accused of any offence, is also to be considered.

7. In view of what has been discussed above, it has been noticed that impugned order has been passed by learned Additional Sessions Judge, Faisalabad/trial court while keeping in view the peculiar facts and circumstances of the case as well as relevant law on the subject, therefore, same needs no interference by this Court. Hence, instant appeal is without merits and is hereby dismissed in limine .

JK/K-9/L Appeal dismissed.