Quashment after dismissal of 265-K

PLJ 2012 Cr.C. (Lahore) 673 (DB)
[Rawalpindi Bench Rawalpindi]

Present: Kh. Imtiaz Ahmad & Ch. Muhammad Younis, JJ.

MUHAMMAD NAEEM--Petitioner

versus

STATE--Respondent

Crl. Misc. No. 2-Q of 2012, decided on 20.3.2012.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 561-A & 265-K--Quashment--Application for acquittal u/S. 265-K was dismissed by Special Judge--Assailed--No evidence was collected by the I.O.--to establish any nexus of the petitioner with the narcotics or the vehicle from which the same was recovered--Statement of the co-accused in custody of the police/ANF cannot be used against accused as the same is not admissible in evidence--There is not an iota of evidence to connect the petitioner with the commission of offence except the statement of the co-accused--In order to frame charge against the petitioner there must have been some incriminating evidence available on the record butinspite of the fact that no such evidence was available the charge was framed against the petitioner which is groundless--Trial of the petitioner would be an exercise in futility as there is absolutely no probability of the petitioner being convicted for the offence--Impugned order is thus not sustainable in the eye of law--Petition was accepted.         [P. 674] A

Mr. Noor Alam Khan, Advocate for Petitioner.

Mr. Wasim Ahmad Qureshi, Special Prosecutor ANF for State.

Date of hearing: 20.3.2012.

Order

Through this petition under Section 561-A, Cr.P.C. the impugned order dated 26.9.2011 passed by learned Special Judge CNS Court Rawalpindi whereby he dismissed an application of the petitioner under Section 265-K, Cr.P.C. has been assailed.

2.  The learned counsel contends that on 8.9.2010 Muhammad Abbas son of the petitioner was apprehended while he was driving Car No. IDS-848. As a result of search of the vehicle 12 kilograms of heroin was recovered from the secret cavities thereof. The petitioner was involved in this case on the statement of his son Muhammad Abbas co-accused.

3.  The learned counsel for the petitioner contends that there is absolutely no incriminating evidence on the record on the basis of which the charge could be framed against him or the trial could be conducted. The statement of the co-accused while in custody of the ANF authorities cannot be used against the petitioner so the petitioner moved an application under Section 265-K, Cr.P.C. which was dismissed by the learned Special Judge CNS Rawalpindii vide impugned order dated 26.9.2011. The learned counsel goes on to submit that the petitioner has no nexus with the commission of offence and the challan is groundless so the impugned order is not sustainable in the eye of law and is liable to be set aside. He prayed for accepting the petition under Section 265-K, Cr.P.C. and acquitting the accused.

4.  The learned Special Prosecutor ANF has vehemently opposed the petition and argued that the petitioner was implicated in this case on the statement of his son/co-accused Muhammad Abbas so the learned Judge Special Court CNS Rawalpindi has rightly dismissed the application of the petitioner under Section 265-K, Cr.P.C. He however affirmed that the only material against the petitioner on the record is the statement of the co-accused while in custody.

5.  We have considered the arguments advanced from both the sides and have perused the record. A careful perusal of the record shows that except the statement of his son Muhammad Abbas while in custody of the ANF authorities there is absolutely no evidence on the record against the petitioner. The investigating officer could not collect any incriminating piece of evidence to connect the petitioner with the commission of offence. Admittedly at the time of occurrence the petitioner was inSaudi Arabia. No evidence was collected by the I.O. to establish any nexus of the petitioner with the narcotics or the vehicle from which the same was recovered. Admittedly the statement of the co-accused in custody of the police/ANF cannot be used against the petitioner as the same is not admissible in evidence. There is not an iota of evidence to connect the petitioner with the commission of offence except the statement of the co-accused. In order to frame charge against the petitioner there must have been some incriminating evidence available on the record but inspite of the fact that no such evidence was available the charge was framed against the petitioner which is groundless. In these circumstances the trial of the petitioner would be an exercise in futility as there is absolutely no probability of the petitioner being convicted for the offence. The impugned order is thus not sustainable in the eye of law. We accept this petition set aside the order of the learned trial Court and acquit the petitioner of the charge against him invoking the provisions of Section 265-K, Cr.P.C.

(A.S.)   Petition accepted