Abid Ullah Vs The State

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Cr.A.No.994-P/2025

Abid Ullah ........ ..........................Appellant Vs The State....................... .............Respondent Present: Syed Asghar Ali Shah, Advocate, for the appellant.

Mr. Tariq Kakar, Special Prosecutor ANF, for the State.

Date of hearing: 05.03.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Appellant namely Abid Ullah has called in question the order/ judgment of his conviction dated 30.09.2025 passed by the learned Presiding Officer, Special Court CNS-1, Peshawar rendered in case FIR No. 40/2022 dated 01.02.2022 under Section 9-D of The Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 registered at Police Station ANF, Peshawar, vide which the appellant was convicted and sentenced as follows:-

“The accused Abid Ullah s/o Muhammad Javed aged 32 years (at the time of framing of charge) guilty of the offence u/s 9 (d) KP CNSA 2019 and while convicting him there under I sentence him to life imprisonment with fine of Rs One million or in

default of payment further 06 months. These sentences in case of default of payment shall run concurrently to the main sentence. Benefit of section 382-b Cr PC is extended to accused.

Prima facie case exist against the co- accused namely, Din Muhammad, Azmat and Fazal, therefore, perpetual warrant of arrest be issued against them and their names be entered in relevant register of Proclaimed offender.”

2.Precisely the facts of the case, as set forth in Murasila (Ex.PW 2/2), are that on 01.03.2022, pursuant to spy information that an inter-provincial smuggler namely, Abid Ali, would smuggle a huge quantity of narcotics in a white Toyota Corolla bearing Registration No. LEB-7567, from Peshawar to Punjab through motorway. Acting on this, a raiding party was constituted and Nakabandi was laid near Toray Kabab, Charsadda Road, Peshawar.

Upon arrival of the said vehicle, it was stopped and the person seated on the driving seat was deboarded who disclosed his name as Abid Ullah, the present appellant. During initial interrogation, he after some dilly dally admitted the presence of narcotics in the vehicle and on his pointation, 246 packets of narcotics were recovered from the diggi (trunk) of the said vehicle, out of which, 210 packets were found to be that of chars while 36 packets were

found to be that of opium. On weighment, each packet of narcotics came out to be 1200 grams, total came out to be 252 KGs chars and 43.200 KGs of opium. From the recovered contraband, sample of 10/10 grams was separated from each packet for chemical analysis and sealed in separate parcels, whereas rest of the contraband was also sealed in separate parcel and a monogram of “ZG” was affixed. On further interrogation on the spot, the accused disclosed the name of one Fazal to be the owner of the narcotics. The Murasila (Ex.PW 2/2) was drafted and sent from the spot through constable namely, Usman Shafique for the registration of FIR.

Accordingly, the aforesaid case FIR was registered against the accused.

3.During the investigation, the present appellant disclosed the names of other co-accused namely, Din Muhammad, Azmat and Fazal. Police made efforts for arresting the absconding co-accused but could not succeed. After completion of investigation, challan against the appellant was submitted before trial court, in which Din Muhammad, Azmat and Fazal were shown as absconders. The present accused-appellant was summoned by the learned

trial Court and charge was framed against him on 29.09.2022, to which he pleaded not guilty and claimed trial, whereas after completing the necessary formalities against the absconding accused, they were declared as proclaimed offender. The prosecution was invited to produce its evidence, who accordingly examined five (05) witnesses in support of their case and thereafter statement of the accused was recorded under section 342 Cr.P.C. On conclusion of proceedings in trial, the accused/appellant was convicted and sentenced vide the impugned order/judgment dated 30.09.2025 of the Court of learned Presiding Officer, Special Court CNS-1, Peshawar, as stated hereinabove. The appellant has now challenged the aforesaid order/judgment by filing the instant appeal before this Court.

4.Arguments heard and record perused.

5.At the very outset, learned counsel representing the appellant raised an objection that the case property comprising of 252 K.Gs chars and 43.200 KGs of opium (which was in the form of 246 packets) has never been produced before the learned trial court for its exhibition and in this regard, he

made reference to the statement of seizing officer namely, Zaigham Gillani, who appeared in the Court as PW-2 on 18.04.2023 by stating that the said case property has been shown as exhibited in his court’s statement, however, the routine order sheet of learned trial court of the said date i.e. 18.04.2023 would show that the same was not produced and that’s why the same was requisitioned for the adjourned date. Learned counsel for the appellant also stated that even on the subsequent several dates, direction for production of case property was issued but at no point of time, the same has been produced.

Learned counsel for the appellant further stated and made reference to order sheet No. 40 dated 11.06.2025, whereby though the learned trial court has sent the recovery memo in original alongwith its scanned copy to the FSL for the writing expert so as to opine that as to whether the date in the end of the original recovery memo has been tampered with or not, but the said exercise has also not been taken to its logical end and thus the learned counsel representing the appellant stated that since the case property has not been produced and important documents i.e. recovery memo has been found as

tampered by the trial court, therefore, the appellant deserves acquittal.

6.As against this, the learned Prosecutor ANF representing the State opposed the aforesaid submission of the learned counsel for the appellant and stated that during the course of cross examination of PW-2 namely, Zaigham Gillani, no such objection qua non-production of the case property has been raised by the defence counsel which prima facie shows that the case property was available before the learned trial court and as such he defended the impugned order and judgment of conviction.

7.In view of the above submission of both the learned counsel for the appellant and that of the learned Prosecutor representing the State, we have gone through the record and the evidence produced by the prosecution, and noted that in this case, the statement of the seizing officer / complainant namely, Zaigham Gillani (PW-2) has been recorded on 18.04.2023, in which the case property especially the incriminating contraband has been shown as exhibited alongwith the motorcar and other articles as Ex.P-1 to Ex.P-10 (Chars), Ex.P-11 to P-12

(opium), whereas motorcar has been shown exhibited as Ex.P-13, however, the routine order sheet of the learned trial court of even date i.e. 18.04.2023 would show that it was specifically directed that the remaining PWs be produced and the case property be requisitioned for 09.05.2025. The order sheet of 09.05.2023 would again show issuance of an identical direction to the effect that all the remaining prosecution witnesses alongwith the case property be summoned. The record would further show that the aforesaid directions were issued by the ordinary court of Additional Sessions Judge-II, Peshawar, however, as per direction of the High Court, the trial of the instant case was transferred to the learned Judge, Special Court, Peshawar and the order sheet of the learned Judge, Special Court dated 19.07.2023 would also show that after framing of the formal charge, PWs alongwith the case property were summoned.

During the pendency of the trial of the appellant, the non-production of the case property before the trial court further find supports from the order sheet of the learned trial court dated 13.01.2025. The same being relevant is reproduced below:-

“O-32

Learned SP for the State present. Accd present in custody with counsel. Complainant / I.O Zaigham Gillani is also present. His examination-in-chief has already been recorded and today the case is fixed for his cross-examination, however, the learned counsel for the accused submitted that though the case property in the shape of a motorcar has been exhibited by the said complainant present in his chief-examination, but she was not present at that time before the learned trial Court. This Court perused the order sheet dated 18.04.23 which shows that the presence of learned counsel for the accused facing trial has not been therein which proves her stance which is accepted and the witness is directed to produce the case vehicle alongwith Case property for The aforesaid order sheet would show that though PW-2 namely, Zaigham Gillani was present, however, his cross examination could not be carried out as the defence counsel had submitted that though the case property in the shape of motorcar has been exhibited by the said complainant in his examination- in-chief recorded on 18.04.2023 but by then the defence counsel was not in attendance, which fact was appreciated and acknowledged by the learned trial court as per the stance of the learned defence counsel and PW-2 namely, Zaigham Gillani was specifically and clearly directed to produce the case vehicle alongwith the case property for 29.01.2025.

The subsequent order sheet of the learned trial court

including order sheet dated 13.03.2025 would also show that repeated directions were issued for the production of the case property but the same has never been produced to the satisfaction of the appellant.

8.It would also be relevant to mention and as stated hereinabove that the examination-in-chief of the seizing officer / complainant namley, Zaigham Gillani (PW-2) was recorded on 18.04.2023 and thereafter repeated directions were issued for the production of the case property but those directions were never materialized or complied with and it was on 11.06.2025 when his cross examination has been carried out, however, on the said date, the learned trial court itself noted an apparent tampering on the date of original recovery memo and as such the learned trial court vide order dated 11.06.2025 has directed that “the recovery memo in original be sent alongwith its scanned copy to the FSL to the writing expert in the FSL with the direction to examine both and submit his opinion on whether the date in the end of the original recovery memo has been tampered with or not”, and to submit its report, however, the said direction has never been taken to

its logical end as the subsequent order sheet of the learned trial court and the record of the case are completely silent about the same, therefore, in the given facts and circumstances, we understand that firstly, prima facie, it is established from the record that the case property especially the incriminating contraband which is comprising of huge quantity of narcotics i.e. 252 K.Gs chars and 43.200 KGs opium (which was in the form of 246 packets) has never been produced by the prosecution before the learned trial court despite repeated requests of the appellant and repeated directions of the trial court and secondly that when the learned trial court itself noted that there is an apparent tampering on the date of original recovery memo and when it by itself sent the original recovery memo alongwith the scanned copy to the FSL to determine that whether any tampering has been made on the original recovery memo qua its date or not but that opinion has never been ensured and procured, therefore, we understand that the appellant has not been provided a fair opportunity of his trial.

9.During the course of arguments, it remained a point of contention between the learned counsel for

the parties that whether this Court being an appeal court could remand the instant case to the trial court for the aforesaid irregularities or not, however, we gone through Section 423 Cr.P.C and are of the considered opinion that keeping in view the peculiar facts and circumstances of this case, and that the word occurring “sent for trial” in clause (b) and the wording of clause (d) of Section 423 Cr.P.C to the effect that the appellate court may make any amendment; or any consequential or incidental order that may be just or proper is of much significance and as such the appeal court is fully empowered to remand the case to the trial court where a fair opportunity of a fair trial has not been provided to both the parties or where such remand is essential for a just and proper decision between the parties. This Court in case1 has held that as far as, the authority of an Appellate Court or remanding the case to the trial Court is concerned, section 423(d) of the Cr.P.C. is clear and has been approved by the apex Court in Farrukh Sayyar's case (2004 SCMR 1), in terms that:

"It was contended by the learned counsel for the petitioners that the High Court Muhammad Said and another .vs. The State (2015 P Cr.LJ 1108)

having heard the case as an Appellate Court was not empowered to remand the case for writing a fresh judgment in view of clause (b) of section 423, Cr.P.C.

The argument is not tenable for the short reason that the impugned judgment is fully covered by clause

(d)of section 423, Cr.P.C. which is too relevant to be ignored or overlooked. It reads as under:- "(d) make any amendment or any consequential or incidental order that may be just or proper."

10.In view of the above, this appeal is allowed, the impugned order and judgment of the learned trial court dated 30.09.2025 is set aside and this case is remanded back to the learned trial court with the direction:-

i. firstly that it has to obtain the FSL report qua the apparent tampering as was noted by the learned trial court and as reflects in the order sheet dated 11.06.2025;

ii. secondly that it shall also re-examine PW-2 namely, Zaigham Gillani by ensuring that the case property of this case be produced before the learned trial court and an opportunity of cross examining be provided to the appellant; and

iii. thirdly that it shall thereafter record the statement of accused under Section 342 Cr.P.C to the extent of post-remand evidence and thereafter it shall decide the case afresh in accordance with law on the basis of a post-remand evidence as well as evidence earlier recorded by the prosecution. Order accordingly. Since the appellant is confined in jail since 01.03.2022, therefore, the learned trial court is directed to complete the aforesaid exercise within three months positively and compliance report in this regard be submitted to the Additional Registrar (Judl) of this Court for our perusal in chamber.

Announced 05.03.2026 Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

(D.B) Hon’ble Mr. Justice S.M.Attique Shah, Chief Justice Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah