PLJ 2025 Cr.C. (Note) 197
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram and Tanveer Ahmad Sheikh, JJ.
MUKHTIAR HUSSAIN--Appellant
versus
STATE and another--Respondents
Crl. A. No. 521 of 2025, decided on 15.5.2025.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
منشیات کی برآمدگی--استغاثہ کی جانب سے دورانِ مقدمہ پیش کیے گئے گواہوں میں سے کسی نے بھی یہ بیان نہیں دیا کہ مذکورہ نشہ آور مواد درخواست گزار کی تحویل سے برآمد ہوا تھا، اگرچہ استغاثہ کا مقدمہ یہ تھا کہ یہ درخواست گزار ہی تھا جس نے آصف ریاض کے خلاف جھوٹا مقدمہ درج کرایا تھا--سوال جو تعین اور شواہد کی دوبارہ جانچ پڑتال کا متقاضی ہے وہ یہ ہے کہ نشہ آور مواد درحقیقت کب برآمد ہوا اور کیا یہ آصف ریاض کی تحویل سے برآمد ہوا تھا، جیسا کہ استغاثہ کے گواہوں نے خود بیان کیا ہے یا یہ درحقیقت درخواست گزار کی تحویل میں تھا جیسا کہ دورانِ تفتیش ریکارڈ پر لایا گیا، تاہم، ان سوالات پر فیصلہ صادر کرتے وقت توجہ نہیں دی گئی--انہی حقائق کو شواہد کی دوبارہ جانچ پڑتال کی ضرورت ہے اور درخواست گزار کو ریلیف دیا جا سکتا ہے جس کا اس نے دعویٰ کیا ہے--ایسی صورتحال میں، اس عدالت کو شواہد کی دوبارہ جانچ پڑتال کے بعد یہ دیکھنا ہے کہ کیا ٹرائل کورٹ نے درخواست گزار کو مجرم قرار دینے میں حق بجانب تھی--ایڈیشنل پراسیکیوٹر جنرل کے اس استدلال میں کوئی وزن نہیں ہے کہ مذکورہ بالا نکات پر اس مرحلے پر توجہ دینا شواہد کی گہری تعریف کے مترادف ہوگا، اس لیے کہ درخواست گزار کے وکیل نے صرف فیصلے میں موجود خامیوں کی نشاندہی کی ہے--درخواست منظور کی جاتی ہے۔
----S. 9(1)3(c)--Conviction and sentence--Challenge to--Criminal
appeal--Recovery of narcotics--None of witnesses produced by prosecution during course of trial stated that it was from possession of petitioner that said narcotic substance was recovered though case of prosecution was that it was petitioner who had lodged a false case against Asif Riaz--The question which needs determination and reappraisal of evidence is as to when narcotic substance was actually recovered and whether it was recovered from possession of Asif Riaz, as narrated by prosecution witnesses themselves or it was actually in possession of petitioner as brought on record during course investigation, however, these questions were not addressed while passing judgment--These very facts need reappraisal of evidence and petitioner can be extended of relief claimed for--In such a situation, it is to be seen by this Court, after reappraisal of evidence, whether trial Court was justified in convicting petitioner--There is no substance in, argument of Additional Prosecutor General that adverting to above-said points, at this stage, would amount to deeper appreciation of evidence, inasmuch as counsel for petitioner has only pointed out deficiencies in judgment itself--Petition allowed. [Para 6] A & B
Ch. Zulfiqar Ali Sidhu, Advocate for Appellant.
Malik Riaz Ahmad Saghla, Addl. Prosecutor General for State.
Dates of hearing: 15.5.2025.
Order
Crl. Misc. No. 01-M of 2025.
Through this petition filed under Section 426, Cr.P.C., the petitioner namely Mukhtiar Hussain son of Ghulam Shabir seeks suspension of the sentence awarded to him by the learned Special Court, established under the Control of Narcotic Substances Act, 1997, Chowk Sarwar Shaheed, vide judgment dated 30.04.2025.
2. The petitioner namely Mukhtiar Hussain son of Ghulam Shabbir was convicted and sentenced after trial in case F.I.R. No. 304/2023, dated 26.06.2023, registered at Police Station City Sarwar Shaheed, District Kot Addu, in respect of offence under Section 9-(1)/3(c) of the Control of Narcotic Substances Act, 1997, and sentenced as under:
“Rigorous imprisonment for fourteen years under Section 9-(1)/3(c) of the Control of Narcotic Substances (Amendment) Act, 2022 and directed to pay fine of Rs. 400,000/- and in default thereof to suffer simple imprisonment of six months.”
The benefit provided under Section 382-B of the Code of Criminal Procedure, 1898 was extended to the petitioner by the learned trial Court. The petitioner lodged the Criminal Appeal No. 521 of 2025, assailing the above said conviction and sentence. The main appeal is still pending adjudication, hence, this petition.
3. The learned counsel for the petitioner submitted that no evidence was brought on record that any narcotic substance was recovered from the possession of the petitioner rather according to the statements of the prosecution witnesses the petitioner was the complainant of the case, who had recovered the narcotic substance, however, despite these facts the learned trial Court proceeded to convict and sentence the petitioner.
4. The learned Additional Prosecutor General opposed the contentions of the learned counsel for the petitioner and submitted that the petitioner had been convicted by the learned trial Court on the basis of a well-reasoned judgment, hence the petitioner was not entitled to the concession of bail by way of suspension of the sentence awarded to him and prayed for the dismissal of the instant petition.
5. We have heard the learned counsel for the petitioner and the learned Additional Prosecutor General and perused the record with their able assistance.
6. The perusal of the judgment passed by the learned trial Court reveals that it was on the information of the petitioner himself that the case F.I.R. No. 304 of 2023 was registered at Police Station City Sarwar Shaheed, District Kot Addu, as against one Asif Riaz from whose possession, it was alleged that 1800 grams of chars was recovered. During the course of trial of the case, the prosecution got examined as many as seven witnesses, however, Hadia Bibi on whose application the proceedings against the petitioner were initiated, did not appear as a witness during the course of trial. Moreover, Allao Din, Sub-Inspector (PW-3), who investigated the case, also made a statement that during the course of investigation he visited the place of recovery and it was from Asif Riaz that the narcotic substance was recovered, however, he stated that subsequently during the investigation of the case he found that one Muhammad Asghar alias Nanha had handed over 1800 grmas charas to the petitioner and thereafter the petitioner used the said charas to lodge a case against Asif Riaz. A similar statement was made by Muhammad Iqbal Akhtar, Sub-Inspector (PW-4), who also stated that during the investigation he determined that 1800 grams charas was not recovered from Asif Riaz rather it was the petitioner who got lodged a false case in this regard. Now the paramount question which needed determination was that whether the narcotic substance was recovered from Asif Riaz on 26.06.2023 or whether the said narcotic substance was recovered from the possession of the petitioner, however, none of the witnesses produced by the prosecution during the course of trial stated that it was from the possession of the petitioner that the said narcotic substance was recovered though the case of the prosecution was that it was the petitioner who had lodged a false case against Asif Riaz. The question which needs determination and reappraisal of evidence is as to when the narcotic substance was actually recovered and whether it was recovered from the possession of Asif Riaz, as narrated by the prosecution witnesses themselves or it was actually in possession of the petitioner as brought on record during the course investigation, however, these questions were not addressed while passing the judgment. These very facts need reappraisal of evidence and the petitioner can be extended the of relief claimed for. In such a situation, it is to be seen by this Court, after the reappraisal of evidence, whether the learned trial Court was justified in convicting the petitioner ..Reliance is placed on the case of “Nasir Ali vs. The State and others” (2016 SCMR 1283). There is no substance in the argument of the learned Additional Prosecutor General that adverting to the above-said points, at this stage, would amount to deeper appreciation of evidence, inasmuch as the learned counsel for the petitioner has only pointed out the deficiencies in the judgment itself.
7. In the light of above discussion, the instant petition is allowed. The sentence of the petitioner is suspended and he is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs. 700,000/- (rupees Seven hundred thousand only) with two sureties, each in the like amount, to the satisfaction of the Deputy Registrar (Judicial) of this Court. The petitioner namely Mukhtiar Hussain son of Ghulam Shabir is directed to appear before this Court on each and every date of hearing in the main Criminal appeal No. 521 of 2025 till its final decision.
(A.A.K.) Petition allowed
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