Muhammad Ismail etc. Vs ASJ Pakpattan Sharif etc.

HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Crl. Appeal No.198685/2018 Muhammad Ismail, etc Versus Addl. Sessions Judge, etc.

JUDGMENT

Date of hearing: 14.10.2025

Appellants by: Mr. Saif Ullah Khan, Advocate.

Mr. Abdul Samad, Additional Prosecutor General State by:

along with Munir, S.I.

Farooq Haider, J.:- Through this appeal under Section 48 of the Control of Narcotics Substances Act, 1997 read with Section 410 Cr.P.C, appellants namely Muhammad Ismail T/ASI, Muhammad Ashraf, S.I., Muhammad Saeed 100/C and Abdul Hamid 430/C have made the following prayer:- “Under the circumstances, it is most respectfully prayed that instant appeal may kindly be accepted and the impugned order dated 07.04.2018 passed by Mr. Syed Faiz-ul-Hassan, learned Addl. Sessions Judge, Pakpattan Sharif may kindly be set aside and the compensation awarded to the appellants may kindly be ended in the interest of justice equity and fair play.

Any other relief which this Honourable Court deems fit and proper may also be awarded.”

2.Brief however necessary facts for decision of instant appeal are that case with the allegation of recovery of 1530 grams of Charas against Abid Ali alias Mani (respondent No.2 in appeal) was got registered by Muhammad Ismail T/ASI (appellant No.1 in appeal) vide FIR No.218/2017, dated 19.06.2017 under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station: City Pakpattan, District Pakpattan, however, trial court while acquitting Abid Ali alias Mani (mentioned above) vide judgment dated 07.04.2018 issued notice to the STATE for proceedings under Section 250 Cr.P.C. and it was further ordered that proceedings shall be conducted separately; in this regard, relevant portion from paragraph No.15 of the judgment is hereby reproduced:- “15. Before parting with the judgment, it has been observed that false documents have been prepared in this case by the complainant and Investigating Officer. They alongwith

Muhammad Saeed 100/C (PW-2) and Abdul Hameed 430/C deposed falsely before the Court. Due to their illegal and unlawful act, the accused remained under custody for more than nine months. Hence it is a fit case where accused should be compensated under section 250 Code of Criminal Procedure, 1898. Show notice to State is being issued under said provision of law and proceedings in this regard shall be conducted separately.”

(Emphasis added) Then trial court while conducting proceedings under Section 250 Cr.P.C. vide order dated 07.04.2018 imposed compensation of an amount of Rs.30,000/- each upon Muhammad Ismail T/ASI (complainant) and Muhammad Ashraf, S.I. (Investigating Officer) as well as compensation of Rs.20,000/- each upon Muhammad Saeed 100/C and Abdul Hamid 430/C (now appellants) which order is impugned through this appeal.

3.Learned counsel for the appellants at the very outset submits that notice was only issued to the State and not to the appellants, therefore, impugned order is against the law, hence, not sustainable; further requests for setting aside impugned order and remanding matter to the trial Court for re-deciding the same while observing requirements of law.

4.Learned Addl. Prosecutor General very fairly submits that he does not support the impugned order because neither notice was issued to the appellants nor any reply was obtained from them; further adds that impugned order is liable to be set aside and it is appropriate to refer the matter back to trial Court for re-deciding same after issuing notice to the appellants and obtaining their replies as well as affording them proper opportunity of hearing.

5.Arguments heard. Record appended with this appeal as well as received from the trial Court has been perused.

6.It has been noticed that after conclusion of trial of the case, trial Court while acquitting accused (respondent No.2 in appeal) issued notice to the State for proceedings under Section 250 Cr.P.C. and it was ordered that further proceedings would be conducted separately

in this regard. Copy of show-cause notice issued by trial Court is available at page No.3 of the record and the same is scanned below:- Perusal of aforementioned show-cause notice reveals that it was issued to the State and not to the appellants. Learned Addl. Prosecutor General after going through said record very fairly apprised that neither notice was issued to the appellants nor any reply from them was obtained and even no opportunity of hearing was afforded to them. It is relevant to mention here that for having proceedings under Section 250 Cr.P.C., when order of acquittal is passed, the person upon whose complaint or information, the accusation is made if is present can be called upon forthwith by the court to show-cause that why he should not pay compensation to the accused and if such person is not present, then court can direct for issuance of summons for his appearance and show cause that why he should not pay compensation to the accused; furthermore, the court shall record and consider any cause which such complainant or informant may show and if court is satisfied that accusation was false, then

for the reason to be recorded direct for awarding compensation. For ready reference, Section 250 Cr.P.C. is hereby reproduced:-

250.False frivolous or vexatious accusations. (1) If in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate, by whom the case is heard acquits all or any of the accused and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may by his order of acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or if such person is not present direct the issue of a summons to appear and show cause as aforesaid.

(2)The Magistrate shall record and consider any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious, may, for reasons to be recorded, direct that compensation to such amount not exceeding twenty five thousand rupees or if the Magistrate is a Magistrate of the third class not exceeding two thousand and five hundred rupees, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.

(2A) The compensation payable under sub-section (2) shall be recoverable as an arrear of land revenue.

(2B) When any person is imprisoned under sub-section (2A), the provisions of section 68 and 69 of the Pakistan Penal Code shall, so far as may be, apply.

(2C) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the compliant made or information given by him:

Provided that any amount paid to an accused person under this section shall be taken into account, in awarding compensation to such person in any subsequent civil suit relating to the same matter.

(3)A complainant or informant who has been ordered under subsection (2) by a Magistrate of the second or third class to pay compensation or has been so ordered by any other Magistrate to pay compensation exceeding fifty rupees may appeal form the order, in so far as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such Magistrate.

(4)When an order for payment of compensation to an accused person is made, in case which is subject to appeal under sub- section (3), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided and, where such order is made in a case which is not so subject to appeal, the compensation shall not be paid before the expiration of one month from the date of the order.

(emphasis added)

Islamabad amendment:

In sub-section (2), for the words “twenty five thousand’ the words ‘one hundred thousand’ shall be substituted by Act XVII of 2017 dated

However, in the instant case, neither appellants were called nor served with any show cause notice, even any reply from them was not obtained and without hearing them, compensation was imposed upon them, therefore, said proceedings are on the one hand against express language, spirit and mandatory procedure mentioned in Section 250 Cr.P.C. whereas on the other hand, it is also hit by maxim “audi alteram partem”; in this regard case of ABDUL RAZAZ versus GUL FITARAT SHAL and others (2014 YLR 1523 Peshawar) can also be advantageously referred. As mentioned above, trial court issued notice to the State through learned Assistant District Public Prosecutor without taking into the consideration that it was not in accordance with law because compensation was not to be imposed upon the Prosecutor.

It is also important to mention here that case in which proceedings under Section 250 Cr.P.C. were conducted, was registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 and Section 26 of the Act ibid was also relevant on the subject and same is hereby reproduced for ready reference:- “26. Punishment for vexatious entry, search, seizure or arrest.-- Any person empowered under section 20 or section 21 who—

(a)without reasonable grounds of suspicion, enters or searches, or causes to be entered or searched, any building, place, premises or conveyance;

(b)vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug, psychotropic substance, controlled substance or any other article or document relating to any offence under this Act; and

(c)vexatiously and unnecessarily detains, searches or arrests any person,

shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to twenty-five thousand rupees.”

But said provision of the relevant law was also not taken into consideration by the trial court while passing the impugned order.

7.In view of what has been discussed above, impugned order dated 07.04.2018 is against law, therefore, same is not sustainable and

thus set aside. Matter is remanded to the Addl. Sessions Judge-I, Pakpattan/trial Court for re-conducting proceedings while observing relevant provisions of law and deciding the same through fresh order. With the observation mentioned above, instant appeal stands disposed of accordingly. Parties will appear before trial Court on 24.10.2025.

(Ali Zia Bajwa) (Farooq Haider) Judge Judge

Approved for reporting

(Ali Zia Bajwa) (Farooq Haider) Judge Judge This order has been dictated, pronounced, prepared and signed on 14.10.2025.

Javaid.S.