| Citation(s) |
|---|
| 2025 SLG 3617 2025 SLD 3617 = 2025 SHC 1650 |
Criminal Miscellaneous Application No.304 of 2025
KHALID HUSSAIN SHAHANI, J
Respondent No.2 : Mst. Nasreen Bano M/s Muhammad Jibran Nasir, Daniyal Muhammad Hussain and Rana Daniyal Akram, Advocates
Applicant : Musawer Ahmed son of Israr Ahmed Through Muhammad Rehman Ghous, Advocate. Respondent No.1 : The State Through Mr. M. Mohsin Mangi, APG Sindh
Law: Pakistan Penal Code, 1860
Section: 302,319,34
Law: Control of Narcotic Substances Act (XXV of 1997)
Section: 9,16
Law: Criminal Procedure Code (V of 1898)
Section: 173,221, 227,265-D,561-A
Law: Sindh Criminal Prosecution Service (Constitution, Functions and Powers) (Amendment) Act, 2015
Section: 9
Summary:
This case concerns a challenge to the order of the Judicial Magistrate-V, Karachi South, which took cognizance under Sections 302/34 PPC read with Sections 9 and 16 of the Control of Narcotic Substances Act, 1997 (CNSA), and forwarded the case to the Sessions Court for trial. The applicant argued the Magistrate lacked jurisdiction to alter charges in a positive police report and improperly added CNSA sections without recovery of narcotics evidence. The Magistrate, aided by the District Public Prosecutor’s scrutiny note and forensic reports linking the deceased’s death to methamphetamine and cannabis overdose, found prima facie grounds for the more serious charges. The High Court upheld the Magistrate’s order except for the inclusion of Sections 9 and 16 of the CNSA, which were set aside due to lack of evidence of narcotic possession or trafficking by the accused. The case will proceed under Sections 302/34 PPC alone.
Core Points:
- Nature of case: Challenge to cognizance order taking up Sections 302/34 PPC and Sections 9, 16 CNSA.
- Initial investigation: IO submitted final challan under Section 319/34 PPC.
- Prosecutor’s scrutiny: Based on chemical and forensic reports indicating intentional drug overdose causing death, recommended upgrading charges to Section 302/34 PPC with CNSA provisions.
- Role of Magistrate: Judicial mind applied; Magistrate has authority to add appropriate sections if supported by evidence, but not to delete positive reports arbitrarily.
- Legal principle: Magistrate must take cognizance on a positive report without conducting a fresh inquiry; powers to scrutinize and alter charges exist at preliminary/framing stage in the Sessions Court.
- Findings on CNSA applicability: No recovery or evidence of narcotics possession or trafficking linked to accused; inclusion of CNSA Sections 9 and 16 is untenable.
- High Court order: Upholds Magistrate’s cognizance under Sections 302/34 PPC; excludes Sections 9 and 16 CNSA; directs trial to proceed and conclude expeditiously.
Law and Sections Table:
| Law/Statute | Section(s) | Key Provision / Principle |
|---|---|---|
| Pakistan Penal Code (PPC) | 302 (Murder) | Intentional causing of death. |
| Pakistan Penal Code | 319 (Qatl-i-Khata) | Culpable homicide amounting to death by mistake. |
| Pakistan Penal Code | 34 (Common intention) | Liability for acts done in furtherance of common intention. |
| Control of Narcotic Substances Act 1997 | 9 | Offence of possession, sale, trafficking of narcotics without lawful authority. |
| Control of Narcotic Substances Act 1997 | 16 | Penalties for contravention relating to cultivation, trafficking, financing; organized narcotics offences. |
| Criminal Procedure Code (Cr.P.C.) | 173 | Submission of final report (challan) by Investigating Officer. |
| Criminal Procedure Code (Cr.P.C.) | 221, 227 | Framing of charges by trial court. |
| Criminal Procedure Code (Cr.P.C.) | 265-D | Trial court’s power to examine record before framing charge. |
| Criminal Procedure Code (Cr.P.C.) | 561-A | Procedure for revision or seeking orders under High Court jurisdiction. |
| Prosecutors Ordinance, 2006 | 9 | Powers and duties of Public Prosecutors related to scrutiny and forwarding of final report under Cr.P.C. |
| Sindh Criminal Prosecution Service Act | 9 | Role of Public Prosecutor in scrutinizing and forwarding police reports for prosecution. |
O R D E R