2005 P Cr (PLP)

DOST MUHAMMAD KHAN, J.

Appellant Raees Khan was put on trial by the leaned Judge, Special Court (Narcotics), Peshawar on the charge under section 9(b), C.N.S.A., 1997 and after finding him guilty has been sentenced to two years' R.I. with a fine of Rs.50,000 or in default thereof to suffer six months' S.I. with benefit of section 382-B, Cr.P.C. The personal belongings of the appellant consisting of different household articles shown in the recovery memo. Exh.P.W.1/1 were also confiscated in favour of the State. Arguments heard record perused.

2. Briefly, the facts of the prosecution case are that on a tip off, received from superior officer by Inspector Sameen Jan (P.S. A.N.F., Peshawar) P. W.1 that a residential house No. 169 situate in Street No. 23, Sector' D-4, Phase-I, Hayat Abad, Peshawar was being used as a den of narcotics by an international smuggler, namely Raees Khan, the appellant, and the Capsules filled with heroin powder are concealed therein, he along with A.N.F. officials raided the above stated house, the appellant was found sitting in the drawing room and on search from a tube of a T. V. Trolley two plastic packets containing 62 Capsules filled with heroin powder and 35 small packets with 3 passports were recovered. The heroin powder turned out to be 800 grams in weight. The appellant was arrested and all the household articles including Carpet, T.V. set, Telephone set, A.C. etc. shown in the above memo. were also taken into possession. Murasila was sent to the police station and case F. I. R. No. 15 was registered on 4-8-2003 at 12-05 hours. After necessary investigations charge-sheet was filed in the trial Court where the prosecution produced 3 P. Ws. in all while the appellant gave statement on oath under section 340(2), Cr.P.C. besides producing Muhammad Tahir, his defence witness as D.W.1.

3. The co-accused involved during investigations were not traceable, therefore, trial was held in their absence under section 512, Cr.P.C. P. W.1 Sameen Jan, Inspector who conducted the raid, recovered the articles and investigated the case, admitted in cross-examination that he received the information at 9-30 a.m. on the day of conducting raid, they left for the crime house at 10-00/10-15 hours and reached there within 10 minutes. He has admitted that no one from the adjoining houses was associated in the investigations, search and seizure and for such omission no reason has been shown in the case diaries. He admitted that no incriminating article was recovered from the personal possession of the appellant. Strangely enough, during the search an amount of Rs.10,00,000 Pakistani currency was also taken into possession by the seizing Officer. Initially charge under section 13 of the C.N.S.A. was added in the F.I.R. as well as in the challan but, as no evidence whatsoever was brought on record in its support, the trial Court dropped the said charge and the appellant was only charged under sections 9, 9(b) of the Act on 16-1-2004. The prosecution accepted this position and took no exception to it for obvious reason that it was having no evidence to substantiate the same.

4. The other witness, namely Adeel Riaz Khan, A.S.-I. P.W.2 is marginal witness to the recovery memo. aforesaid. He has supported the mode and manner of the recovery of heroin powder and other articles as mentioned above.

5. In the instant case, the I.O. (P.W.1) had prior information early in the morning at about 9-00 a.m. which he considered a credible one thus, when he was going to search a residential house, he was required to have obtained search warrant from the Judge, Special Court as required under section 20 of the Act because by then he was having ample opportunity to obtain the search warrant. It is correct that section 20 of the Act as held by the apex Court is directory in nature and in cases requiring quick action so that the, narcotics are neither removed nor the culprits to escape, obtaining of search warrant would not be necessary but keeping in view the language of the provision of section 21, the I.O. making the seizure must form a definite opinion that the obtaining of search warrant would consume such a time which would afford an opportunity to the accused to conceal or destroy the evidence/the contraband or otherwise would enable him to escape. Again subsection (2) of the said provision has placed legal burden on him to record reasons and grounds for making such opinion and to send a copy of the same to his superior Officer. The law-makers on one hand has provided a facility/opportunity to the agency dealing with crimes of narcotics to search any building, vessels, vehicle or enclosure without search warrant which is a clear departure from the settled principle of law but at the same time has provided a check and balance system by enacting section 21 of the Act so that the traditional chicanery and foulplay committed by such agencies are brought under control by check and balance system and in this way the officer conducting a raid on residential building has no free hand to act on his whims and choice. Whenever he makes a departure from the established procedure provided by the ordinary law, he is essentially required .to provide reasons and grounds for such action in writing either in the F.I.R. itself or in the case diary In the instant case there is a clear omission on the part of I. O. for which no plausible explanation has come forth on record. 6 We are mindful of the adverse impact and effects on the society of the drug (narcotics) business being on rise alarmingly and the Legislature has rightly felt persuaded in making departure on the point of search of a building etc. by the I.Os. without search warrant to be obtained but at the same time the sanctity of a residential house cannot be lightly compromised on the ground of such necessity. In case of residential house unless serious emergency is shown and recorded by the raiding officer in his notes/case diaries as required by the law, he would not be acting within the parameters and safeguards provided by the provision of section 21 of the said Act, therefore, we are of the view that as in the instant case, a meagre quantity of narcotics was recovered from a residential house without obtaining a search warrant from the Court, which in the circumstances of the case could have been conveniently obtained, the irregularity committed is of a nature if not sufficient to vitiate the trial, would create very grave doubts about the honesty and credibility of the entire investigations.

7. Apart the above, the narcotics were not recovered from the personal possession of the appellant but from the T.V. trolley. No evidence has been brought on record that the appellant was having conscious knowledge of the same. The alleged crime house is situated in a posh locality of Hayat Abad, the record of each and every house, both rented out or owned by any person, is regularly maintained by the Peshawar Development Authority besides the Excise and Taxation Department. Not a single step was taken in the investigations to ascertain as to who was the owner of the house and whether the appellant was staying as a guest, as a tenant or was the owner of the house. This deliberate omission on the part of investigating agency has left behind many aspects of the case untraced, susceptible to serious doubts and is subject to a serious debate. This missing link is fatal to the prosecution case because for creating a nexus between the narcotics and the appellant, such evidence was essential and in its absence the appellant's guilt could not be established. The defence evidence produced by the appellant has created another dent in the case. Muhammad Tahir D. W.1 has stated on oath that he resides in the lower portion of the house while in the other portion one Muhammad was residing and the appellant had come there for the purchase of Vehicle No.IDM-3329 Model 2002 and when the appellant was sitting in the drawing room he was taken away by the A.N.F. officials. He has also produced agreement deed about the vehicle which is Exh.D.W.1/1. He was cross-examined by the prosecution but could not achieve its purpose.

8. Before parting with this judgment, we are constrained to express our serious displeasure and disapproval over the conduct of the A.N.F. official/I.O. He collected each and every household article from every corner of the house and took away the same when by then he was not in possession of a single iota of evidence that these articles/assets were purchased/acquired through the money earned from narcotics business. The impugned action thus, taken is illegal and cannot be endorsed on any premises whatsoever. The I.O. has violated the prohibition contained in Article 24 of the Constitution wherein it is ordained that no person shall be deprived of his property except in accordance with law. This action of the I.O. was even not approved by the trial Court because the charge under section 13 of the C.N.S. Act was dropped at commencement of the trial because for want of evidence, therefore, it is held that the action taken by the I.O. in taking away the households articles was without lawful authority. For the foregoing discussion, therefore, we are firm in our view' that the prosecution has miserably failed to prove the guilt of the appellant beyond any reasonable doubt hence this appeal is allowed, the conviction and sentences of the appellant are set aside. He shall be set at liberty forthwith if not required in any other case. The personal belongings consisting of household articles and cash amount recovered from the house be returned to the appellant. These are the- detailed reasons for our short order of 10-8-2004. H.B.T./239/P Appeal allowed.