P L D 1993 Peshawar 135 (PLP)

Saeed Akhtar Khan for Appellant. Muhammad Aslam Khan, AA.‑G. for the State. Date of hearing: 10th April, 1993. Muhammad Nazir son of Muhammad Ayub resident of Mohallah Sessions House, Tehsil and District Haripur, convict‑appellant herein, was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to suffer 2 years' R.I., whipping numbering 5 stripes and also to pay fine of Rs.1,000 in default of the same to suffer further R.I. for 2 months by judgment dated 24‑5‑1992 (Case No.16 of 1991) of the learned Additional Sessions Judge, Haripur in case F.I.R. No.l dated 1‑1‑1990, Police Station, Haripur under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. Hence this appeal.

2. The report of the offence EXh.P.A.l was recorded by P.W.3 Muhammad Nazir Khan, A.S.I. Haripur on 1‑1‑1990 at 17‑30 hours in the street of Mohallah Ramzani, Haripur and the narration of the offence is that he alongwith Muhammad Yousaf H.C., Imtiaz and Muhammad Saeed constables were on patrol duty. While reaching street of Mohallah Ramzani Haripur, they saw Muhammad Nazir s/o Muhammad Ayub in suspicious circumstances and his wearing apparel and person was searched and from the folds of the trousers three packets of heroin were recovered and on weighment was found 12 grams out of which one gram was separated for chemical examination and scaled into parcel No. I and the remaining heroin was sealed in parcel. No.11. The appellant was charged under Article 3/4 of the Prohibition Order 1979. This report was incorporated into F.I.R. Exh. P.A. by P.W. 4 Muhammad Riaz Khan S.H.O. Police Station, Haripur.

3. P.W.3 Muhammad Nazir Khan prepared recovery memo. Exh. P.W.1/1 of the heroin recovered. The sample of the heroin for examination of the Chemical Examiner was sent through application Exh.P.W.3/1 arid after completion of the investigation submitted the challan through P.W.2 Muhammad Farid Khan S.H.O. In the trial the statement of P.W.1 Muhammad Yousaf Head Constable was recorded who stated that P.W.3 Muhammad Nazir Khan made personal search of the accused and recovered three `puris' from the accused, it was weighed with the weights of 10 and 2 grams and one gram was taken for chemizal examination. The scale for weighment was with the Investigating Officer and the heroin was recovered from the folds of the trousers of the appellant. P.W.2 Muhammad Farid Khan Inspector S.H.O. Haripur, submitted the challan in the case. P.W.3 Muhammad Nazir Khan stated that he came across the appellant in Muhammad Ramzani Haripur at 4‑30 p.m. On suspicion, personal search of the appellant was conducted and three `Puris' containing therein were recovered from the possession of the accused by recovery memo. Exh.P.W.l/1. The recovered heroin was weighed and found 12 grams, out of which 1 gram was separated and sealed in a parcel for chemical examination and the remaining 11 grams in another parcel. The ‑murasila Exh. P.A.1 was drafted and sent through Imtiaz F.C. for registration of case F.I.R. Exh PA. The statements of P.Ws. were recorded and after completion of investigation submitted challan of the case to the Court through P.W.2 Muhammad Farid Khan Inspector. P.W.4 Muhammad Riaz Khan recorded F.I.R. Exh. PA. on receipt of murasila Exh.P.A.1. Thereafter the prosecution case was closed. Statement of the accused was irregularly recorded who denied the charges and charged P.W.3 Muhammad Nazir A.S.I. for harbouring grudge and malice, due to refusal of his wife for dancing before him.

4. Learned counsel for the appellant contended that the circumstances, manner and procedure of recovery of alleged 12 grams of heroin from the appellant by recovery memo. Exh. P.W.1/1 is doubtful and after delay of 9 days without any reasonable explanation, the alleged one gram of heroin was sent to Chemical Examiner and further that in recovery memo. Exh.P.W.l/1 witnesses, who are also constables accompanying the complaint A.S.I., contradict the manner and place of recovery of the alleged 12 grams of heroin from the appellant. Reliance was placed on PLD 1987 SC 6, 1992 MLD 349, 1991 PCr.LJ 484, 1990 PCr.LJ 445, 1989 MLD 732 and PLD 1980 Peshawar

119. Learned counsel for the State submitted that no malice has been attributed to the police party who recovered 12 grams of heroin from the appellant and therefore, there was no need of associating independent persons in search of the person of the appellant and minor discrepancies in the statements will not create any doubt in the case and further that there was no substantial delay in sending one gram of heroin to the Chemical Examiner according to the office procedure. Reliance was placed on 1992 Pakistan Cr.Law Journal 1072 and 1993 SCMR 149.

5. The complainant in this case is P.W.3 Muhammad Nazir Khan A.S.I. who states that on suspicion, the wearing appeal and the person of the appellant were searched by him and three small packets containing heroin were recovered from the folds of trousers of the appellant. The same were weighed by the complainant by scale carried by him and on weighment contents of three small packets `puris' were found 12 grams out of which one gram was separated for chemical examination.

6. The search of a place and person is governed by Chapter VII of Code of Criminal Procedure. The place has been defined in section 4, subsection (1)(q), Cr.P.C. Generally the search of a closed place or person for an article is governed by. sections 102 and 103, Cr.P.C. Both the sections arc to be read together for the same purpose. It will be noticed that the recovery of an incriminating article from a closed place or concealed on about a person must be witnessed by the independent witnesses who are referred to as respectable inhabitants of the locality. The recovery of an incriminating article from the immediate possession or constructive possession of a person is differentiated from the recovery of the same on the search of the person who is reasonably suspected of concealing about his person any incriminating article because the incriminating article in such like situation is neither concealed in a place nor on about the person. Therefore it has been generally ruled that recoveries from the immediate possession or constructive possession of a person in a place other than the closed place need not be proved by the evidence of independent witnesses i.e. inhabitants of the locality and in absence of mala fides the complainant and his party can be witnesses of the recovery and believed in the circumstances of each case. The recovery of incriminating article from a closed place or from the search of a person will require strict proof, beyond any doubt by evidence of independent witnesses. The privacy of a closed place and the dignity of a person cannot be violated except by due process of law and in the instant case governed by the procedural law of sections 102 and

103. Cr.P.C.

7. The recovery of the alleged heroin from the appellant is doubtful in this case. It is not clear that the total weight of three packets was 12 grams or the contents of the packets were 12 grams and which of the packets contained the alleged heroin from which one gram was separated for chemical examination, which is stated to be positive. It can be said on the strength of the report of the Chemical Examiner that only one gram of heroin was recovered. Furthermore there is no explanation forthcoming as to why this one gram of heroin was kept under the seal of .the complainant for 9 days whereafter it was sent to the Chemical Examiner and it is also not stated that who was keeping in custody the one gram heroin meant for chemical examination and it can be stated that it was in custody for 9 days with the complainant when he was investigating the case. The recovery of alleged heroin from the appellant has not been proved in this case in accordance with law and procedure and therefore this appeal is accepted and the accused‑appellant is acquitted of the charges forthwith. He is on bail and his bonds shall stand discharged. N.H.Q./1463/P??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.