HCJDA 38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT

Writ Petition No.22107 of 2020.

(The State through Prosecutor General Punjab Vs. Duty Magistrate etc)

Date of hearing 03.06.2020

Petitioner (State) by Mr. Waqas Anwar, Deputy Prosecutor
General.
Fiaz SI along with record.
Respondent No.2 Zafar Abbas present in person along with
Mr. Amir Raza Bhatti, Advocate.

Malik Shahzad Ahmad Khan J:- The State through Prosecutor

General Punjab has filed the instant petition against order dated

09.05.2020, passed by Duty Magistrate 1 st Class, Karor Lal Esan,

whereby the request of the Investigating Officer in case FIR

No.220/2020, dated 08.05.2020, under section 9(c) of the Control of

Narcotic Substances Act, 1997, police station Karor, District Layyah

for judicial remand of Zafar Abbas (accused-respondent No.2), was

turned down and the said respondent was discharged from the

abovementioned case. Vide the impugned order, it was further

directed that the recovered amount of Rs.4500/- (alleged sale proceed

of narcotics), personal mobile phone and GLI car bearing registration

No.LE-5842, be also handed over to respondent No.2.

2. Arguments heard. Record perused.

Writ Petition No.22107 of 2020 2

3. As per brief facts of the present case, FIR No.220/2020, dated

08.05.2020, under section 9(c) of the Control of Narcotic Substances

Act, 1997 (hereinafter to be referred as the Act, 1997), was registered

against Zafar Abbas (accused-respondent No.2), at police station

Karor, District Layyah with the allegation that on 08.05.2020, at 9.30

a.m, Nazeer Ahmad ASI (complainant) along with other police

officials of police station Karor was present near the railway crossing

situated at Layyah Road, Karor. In the meanwhile, he received a spy

information that a notorious drug peddler namely Zafar Abbas

(accused-respondent No.2), was coming in his GLI car bearing

registration No.LE-5824, from Laskaniwala road towards Railway

crossing situated at Layyah Road, Karor. On the abovementioned

information, the police party installed a barricade at the above-

mentioned road. In the meanwhile a car bearing registration No.

LE-5824, driven by Zafar Abbas (accused-respondent No.2), came

from the side of Laskaniwala road. On seeing the police party, Zafar

Abbas (accused-respondent No.2), tried to turn back his car but he

was apprehended by the police party. On checking the

abovementioned car, 3800-grams Charas (in the form of four big

pieces), wrapped in polythene bags, was recovered from beneath the

driving seat of the said car. Sample parcel of 190-grams Charas and a

parcel of remaining Charas were prepared. On personal search of

Zafar Abbas (accused-respondent no.2), an amount of Rs.4500/-

Writ Petition No.22107 of 2020 3

(alleged sale proceed of narcotics) and a mobile phone Nokia were

also recovered, which were taken into possession vide recovery

memo, hence the abovementioned FIR.

On 09.05.2020, Zafar Abbas (accused-respondent No.2), was

produced before Duty Magistrate 1st Class, Karor Lal Esan and the

Investigating Officer made request for judicial remand of the accused-

respondent No.2. The Duty Magistrate 1st Class, Karor Lal Esan

instead of granting judicial remand of Zafar Abbas (accused-

respondent No.2), discharged the said accused-respondent No.2 in the

abovementioned case vide impugned order dated 09.05.2020, which

reads as under:-

“ORDER
Present: Accused Zafar Abbas in custody.
Rana Javed Akhtar learned counsel for the
accused.
I.O Nazir Ahmad alongwith record.
I.O requested for judicial remand of the
accused namely Zafar Abbas. Accused have been heard.
2. Arguments advanced by the learned counsel for the
accused. Record perused.
3. After perusing the record it appears that the police has
registered the FIR U/s 9-C of CNSA 1997 on information
upon suspicion without mentioning the name of informer. The
accused has been arrested by the mobile police at Phatak
Layyah road Karor. The mobile police team did not give any
statement before the I.O regarding the source of information
having Charas in his own personal car. The accused is the
farmer having land 10 Acer and also has his house in city
Karor as well as in village Chak No.100-B/TDA. The
Writ Petition No.22107 of 2020 4

accused was driving the car GLI- LE-5824 moving towards

his house. The mobile team has not mentioned the source as
well as information relating the possession of the huge
quantity of Charas by the accused in his own personal car.
Moreover, the complainant of FIR who is the police official
has not mentioned the purpose of possessing huge quantity of
Charas in his own vehicle. Learned counsel for the accused
has provided certified copy of previous trial case FIR
No.637/18 of the accused in which the accused was acquitted
on merit. The accused remained judicial lockup for about 07
month without any proof of possessing of NARCOTIC
SUBSTANCE in previous case. Neither the police has not got
any evidence from locality or any other person through which
it can be ascertained that the accused run the business of
NARCOTIC SUBSTANCE. The accused having three child
(sons) is a peaceful citizen and earn his livelihood by the
agriculture. This the harvest season of the wheat crops, the
accused time and again makes his movement on his personal
car from village to city. The recovery memo has been
prepared by Nazir Ahmad ASI after initial interrogation and
put the accused before Muhammad Sharif ASI. Being
complainant Nazir Ahmad ASI cannot initially interrogate the
matter which is clear violation of section 103 Cr.P.C. I.O
further mentioned in police Zemni No.1 and serial No.7 that
no one is ready to give evidence against the accused relating
to commission of offence. The FIR registered by the police is
highly doubtful having no authentic source of information
relating to the commission of offence. An innocent person
cannot be kept in judicial custody mere on suspicion and
allegation. There is no incriminating material available on
the record which connect of the accused with the commission
of offence. Therefore, the request of I.O for judicial remand
is hereby turned down and the accused person is hereby
Writ Petition No.22107 of 2020 5

discharged, he be released forthwith if not required in any

other case. The recovered amount i.e. Rs.4500/-, personal
mobile phone and the vehicle car GLI No.LE 5842 is handed
over to the accused without any delay.”

4. The Duty Magistrate 1st Class, Karor Lal Esan has passed the

impugned order mainly on two grounds amongst others that the name

of the informer (spy), who gave information to the police regarding

transportation of narcotics by the accused (respondent No.2), has not

been mentioned in the FIR and on the ground that the police did not

record statement of any person of the locality to ascertain that

accused-respondent No.2, runs the business of narcotic substances and

as such violation of section 103 Cr.P.C, has been committed in this

case. Insofar as the ground mentioned in the impugned order that the

name of informer (spy) has not been mentioned in the FIR, is

concerned, in this respect, we may refer here Article 8 of the Qanun-e-

Shahadat Order, 1984, which reads as under:-

“8. Information as to commission of offences:- No

Magistrate or police-officer shall be compelled to say
whence he got any information as to the commission of any
offence, and no Revenue-officer shall be compelled to say
whence he got any information as to the commission of any
offence against the public revenue”
(bold and underlining supplied for emphasis)

It is, therefore, evident from the perusal of the abovementioned

provision of law that the complainant (Nazeer Ahmad ASI), was

Writ Petition No.22107 of 2020 6

legally not bound to mention the name of informer (spy) in the FIR

and he had legal protection to keep secret the name of informer (spy).

Likewise, the provision of section 103 Cr.P.C, is not applicable in the

cases registered under the Act, 1997 as envisaged under section 25 of

the Act ibid, which reads as under;-

“25. Mode of making searches and arrest.—The provision of

the Code of Criminal Procedure, 1898, except those of
Section 103, shall mutatis mutandis, apply to all searches and
arrests in so far as they are not inconsistent with the
provisions of sections 20, 21, 22 and 23 to all warrants issued
and arrests and searches made under these sections.”
(bold and underlining supplied for emphasis)

It is clear from the perusal of the abovementioned provision of the

Act, 1997 that association of private witnesses at the time of recovery

of narcotics or recording the statement of any person of the locality to

ascertain that as to whether or not, an accused runs the business of

narcotic substances was not mandatory in the case in hand. Moreover,

it is by now well settled that in the cases registered under the Act ibid,

the police officials are as good witnesses as private/public witnesses.

In the case of “Muhammad Hanif Vs. The State” (2003 SCMR

1237), the August Supreme Court of Pakistan observed as under:-

4.………………The police officials are equally good witnesses

and could be relied if their testimony remains unshattered
during cross examination. In this regard reference can be
made to Muhammad Naeem v. State (1992 SCMR 1617),
Muhammad v. State (PLD 1981 SC 635).”
Writ Petition No.22107 of 2020 7

The same view was reiterated by the Hon’ble Supreme Court of

Pakistan in the judgments reported as “Surraya Bibi Vs. The State”

(2008 SCMR 825) and “Salah-ud-Din Vs. The State” (2010 SCMR

1962).

5. The next ground mentioned in the impugned order is that

Nazeer Ahmad ASI being the complainant of the case has prepared

the recovery memo, which shows that he initially investigated the case

and then handed over Zafar Abbas (accused-respondent No.2), to

Muhammad Sharif ASI/investigating Officer of this case, which is

clear violation of law. The said ground mentioned in the impugned

order has also no blessing of the law of the country on the subject.

Nazeer Ahmad ASI is the complainant of this case, who along with

other police officials apprehended Zafar Abbas (accused-respondent

No.2) and recovered 3800-grams Charas from the car driven by the

said respondent, therefore, he has not committed any illegality, if he

had prepared the recovery memo of the recovered Charas in this case.

Even otherwise, there is no legal bar that a complainant of the case

registered under the Act, 1997, cannot be the Investigating Officer of

the said case. It is by now well settled that functioning of a police

officer in a case of Narcotic, in his dual capacity as a complainant and

as an Investigating Officer is neither illegal nor unlawful, so long as it

does not prejudice the case of the accused person. The question of

prejudice (if any), can only be proved at the time of trial and an
Writ Petition No.22107 of 2020 8

accused cannot be discharged on the above-referred ground without

recording evidence by the trial Court. In the case of “Zafar Vs. The

State” (2008 SCMR 1254), the apex Court of the country was pleased

to observe as under:-

“11. So far as the objection of the learned counsel for the

appellant that the Investigating Officer is the complainant
and the witness of the occurrence and recovery, the matter
has been dealt with by this Court in the case of State through
Advocate-General Sindh v. Bashir and others PLD 1997 SC
408, wherein it is observed that a Police Officer is not
prohibited under the law to be complainant if he is a witness
to the commission of an offence and also to be an
Investigating Officer, so long as it does not in any way
prejudice the accused person……………………………….”

Similar view was taken by the Hon’ble Supreme Court of Pakistan in

the judgment reported as “State through Advocate-General, Sindh

Vs. Bashir and others” (PLD 1997 Supreme Court 408).

6. The finding in the impugned order that the Mobile Police Team

did not give any statement before the Investigating Officer regarding

possession of Charas by the accused (respondent No.2), in his car, is

also against the record because it is not the case of the prosecution

that any Mobile Police Team played any role in this case. Learned

counsel for accused-respondent No.2, has argued that it was the

complainant and other police officials, who have been mentioned as

Mobile Police Team in the impugned order because it was stated in

Writ Petition No.22107 of 2020 9

the FIR that the official vehicle bearing registration No.LYG-19 was

in the use of the complainant party. If it is so, then we have noted that

the statements of the police officials (mobile team) mentioned in the

FIR namely Muhammad Imran 854/c and Pervaiz Akhtar 577/c, have

duly been recorded in this case under section 161 Cr.P.C. Both the

abovementioned prosecution witnesses namely Muhammad Imran

854/c and Pervaiz Akhtar 577/c, have also been cited as witnesses in

the recovery memo and as such the abovementioned observation in

the impugned order that Mobile Police Team did not give any

statement before the Investigating Officer regarding possession of

Charas by the accused (respondent No.2), in his car, is also against

the record.

7. Learned counsel for accused-respondent No.2, next argued that

as the complainant Nazeer Ahmad is an Assistant Sub-Inspector of

police, therefore, he was not authorized to arrest Zafar Abbas

(accused-respondent No.2) and lodge the above-referred FIR as

provided under section 21 of the Act, 1997 and this fact was also

considered by the Duty Magistrate, while passing the impugned order.

The said argument of learned counsel for accused-respondent No.2,

has no force because the provisions of section 21 of the Act, 1997, are

not mandatory and they are only directory in nature, therefore, arrest

of the accused by Nazeer Ahmad ASI, recovery of narcotics by him

from the possession of accused-respondent No.2 and lodging of FIR

Writ Petition No.22107 of 2020 10

on the complaint of said police official, do not vitiate the prosecution

case. Reference in this context may be made to the judgments reported

as “Muhammad Akram Vs. The State” (2007 SCMR 1671), “The

State Vs. Abdali Shah” (2009 SCMR 291) and “Zafar Vs. The

State”(2008 SCMR 1254).

8. The next ground mentioned in the impugned order is that

learned counsel for the accused-respondent No.2, has provided

certified copy of previous trial of the accused-respondent No.2, in

case FIR No.637/2018, in which he was acquitted on merits and he

remained in judicial lockup for about seven months in the said case

without any proof of possession of narcotic substance. The said

ground is also not a valid ground for discharge of the accused-

respondent No.2, in the instant case because every criminal case has

to be decided on the basis of its own peculiar facts and acquittal of an

accused in an earlier case does not mean that he has to be discharged

in all subsequent cases, irrespective of the merits of the said cases.

Moreover, as per police record, the petitioner is involved in eleven

other criminal cases of similar nature and he is also a previous convict

in one other case i.e., FIR No.18/2010, dated 29.10.2010, under

section 9(c) of the Act, 1997, registered at police station ANF,

Mianwali. Zafar Abbas (accused-respondent No.2), present before the

Court though claimed that he was acquitted in appeal in the above-

referred case but he has frankly conceded that he is a previous convict

Writ Petition No.22107 of 2020 11

in another case registered under section 9(c) of the Act, 1997 and the

said conviction was not challenged by him. It is, therefore, evident

that the Duty Magistrate, Karor Lal Esan has passed the impugned

order against the record of the present case.

9. The reason mentioned in the impugned order that no

incriminating material was available on the record to connect Zafar

Abbas (accused-respondent No.2), with the commission of offence, is

also against the record. As mentioned earlier, incriminating material

in the shape of complaint/evidence of Nazeer Ahmad ASI

(complainant), as well as, statements of recovery witnesses namely

Muhammad Imran 854/c and Pervaiz Akhtar 577/c, recorded under

section 161 Cr.P.C along with recovery of 3800-grams Charas is

available on the record, which is prima facie sufficient material to

connect the accused-respondent No.2, with the alleged offence.

10. The other observation made in the impugned order for the

discharge of the accused, is that the accused is a famer having 10-

acres of land and he also owns houses in City Karor, as well as, in

Chak No.100-B/TDA and he also owns a personal car. In this respect,

it is observed that the ownership of agricultural land/houses or a car

does not give a license to any person to possess or transport narcotic

and as such the said ground mentioned in the impugned order for

discharge of accused/respondent No.2, is also fanciful and absurd. It

Writ Petition No.22107 of 2020 12

appears that Duty Magistrate, Karor Lal Esan was of the belief that

the provisions of the Act 1997 are only applicable on the

homeless/landless/carless and poor people.

11. It is also noteworthy that an accused can be discharged in a

criminal case, when no evidence is available against him on the record

or when the evidence available on the record is deficient, whereas in

the instant case, as mentioned earlier, the evidence of Nazeer Ahmad

ASI (complainant), as well as, evidence of recovery witnesses namely

Muhammad Imran 854/c and Pervaiz Akhtar 577/c along with

recovery of 3800-grams Charas is available on the record against

Zafar Abbas (accused-respondent No.2).

12. In the impugned order dated 09.05.2020, a direction has also

been passed for handing over of cash amount of Rs.4500/- (alleged

sale proceed of narcotics), personal mobile phone and GLI car bearing

registration No.LE-5824 to the accused-respondent No.2. The said

direction has been passed without assigning any valid reason and as

such the same is also not sustainable in the eye of law.

13. It is, therefore, evident that the Duty Magistrate, Keror Lal Esan

has passed the impugned order through colorful exercise of his

powers. It appears that the impugned order has been passed on the

basis of extraneous reasons. The impugned order is patently illegally

and void, which has been passed against the abovementioned basic
Writ Petition No.22107 of 2020 13

provisions of law and the same is also against the dictums laid down

in the judgments of the superior Courts of the country on the subject.

In the light of above discussion, the instant petition filed by the State

is allowed and impugned order dated 09.05.2020, passed by Duty

Magistrate 1st Class, Keror Lal Esan is hereby set-aside. The request

for grant of judicial remand of respondent No.2, made by the

Investigating Officer of the case in hand shall be deemed to be

pending before the concerned Magistrate. Zafar Abbas (accused-

respondent No.2), is present before the Court. He is directed to be

taken into custody. Fiaz SI, who is the present Investigating Officer of

this case shall produce Zafar Abbas (accused/respondent No.2), before

the concerned Magistrate (Judicial Magistrate of the Area or Duty

Magistrate other than Mr. Ikram Ullah Khan, Judicial Magistrate 1 st

Class, Karor Lal Esan) for grant of judicial remand and the Magistrate

concerned shall pass an order in this respect in accordance with the

law. Cash amount of Rs.4500/- (alleged sale proceed of narcotics),

mobile phone of accused and GLI car bearing registration No.LE-

5824, if already have been handed over to accused/respondent No.2,

then the same shall be recovered from the said respondent, however,

the fate of the above-mentioned cash/mobile phone/car shall be

determined by the learned trial Court in accordance with the law

without being influenced by any observation made in the instant

order.
 Writ Petition No.22107 of 2020 14

14. We may mention here that a separate confidential note has been

written in this case for perusal of the Hon’ble Chief Justice and

Administrative Committee of this Court.

(Raja Shahid Mehmood Abbasi) (Malik Shahzad Ahmad Khan)

*Aitazaz* Judge Judge

Approved for reporting

Judge Judge