2012 PLP 494 (YLR)

KHALID MEHMOOD KHAN, J.

Appellant, namely, Azmat Khan son of Nekam Zad, has challenged the judgment/ order passed by learned Addl: Sessions/ Judge Special Court, Bannu on 5-5-2011 vide which he has been convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to four years' imprisonment with fine of Rs.10,

000. In default of payment of fine he has further been directed to undergo six months' S.I.

2. Short facts of the present case as per F.I.R. are that on 12-5-2010, complainant Muhammad Ismail Khan S.H.O. Police Station, Basia Khel, Bannu upon complaint of general public that accused/appellant Azmat Khan son of Nekam Khan is dealing with business of narcotics, on obtaining search warrant from Judicial Magistrate-I, Bannu conducted raid on the house of accused/appellant and apprehended him with a polythene bag in his right hand. The said polythene bag, on checking, was found containing 1100 grams charas, hence case F.I.R. No.145 dated 12-5-2010 registered under section 9(c) C.N.S.A. at Police Station, Basia Khel District Bannu.

3. Challan against the appellant/ accused was submitted before the learned trial Court and the learned trial Court took cognizance of the case. Appellant/accused refused to plead guilty in response to the charge framed against him; therefore prosecution was directed to record its evidence to prove guilt of the appellant/ accused.

4. The prosecution examined four witnesses during trial against the appellant/ accused and then closed its evidence, where after statement of appellant/accused was recorded under section 342, Cr.P.C. Neither the appellant/accused recorded his statement on Oath under section 340(2), Cr.P.C. nor produced any evidence in defence.

5. The learned trial Court after hearing arguments of both sides convicted the appellant/accused and sentenced him as per detail given in first Para of this judgment.

6. Learned counsel for the appellant argued that the impugned search warrant Exh.P.W.3/2 was issued by Judicial Magistrate on the basis of the prior information of dealing with narcotics against the house of Chamnai and Abbas Khan but in the F.I.R. only the name of Chamnai has been mentioned and the name of Abbas Khan has been concealed by the prosecution at the time of lodging the F.I.R. He contended that having the prior information and obtaining the search warrant the Investigating Officer did not observe to associate private person from the locality as witness of the raid and recovery of impugned narcotics. He submitted that it is impossible that after knocking the door of appellant/accused by raiding party of police and after sometime of the raid the appellant/accused remained standing in the courtyard of the house along with recovered charas in a polythene bag. He further contended that the appellant/accused has falsely charged due to ulterior motive and extracting money from him. He further submitted that Investigating Officer in his statement has clearly mentioned that the appellant/accused is desperate and hardened criminal that is why search warrant against the accused/appellant was obtained which negates the version of prosecution as search warrant against Chamnai and Abbas Khan were issued but neither the name of Abbas Khan is mentioned in the F.I.R. nor the house of Chamnai has been interrogated. He further argued that the site plan prepared before the raid by the raiding officer contradict the site plan and the prosecution has failed to prove that the house where the raid was conducted in fact is the house of Chamnai or somewhere else. He urged that the charras allegedly recovered on the spot was not sealed at the time of recovery by the S.H.O. and even in the recovery memo Exh.P.W.2/1 it is nowhere mentioned that the recovered charas was sealed into parcel. He further argued that the Investigating Officer has not recorded the statement of any private person of the locality at the time of raid though the house is situated in thickly populated area and after the recovery of alleged charas four grams as sample was separated and the same was sealed in one parcel by the Investigating Officer which is against express provision of law. He relied upon 2011 PLD Peshawar 152, 2001 PCr.LJ 1762 and 2007 PCr.LJ 129.

7. On the other hand, learned counsel for D.A.-G. argued that search warrant was properly issued by competent authority and there is no mala fide on the part of prosecution to falsely implicate the appellant/accused in the case. He contended that the FSL report fully supports the prosecution version and the witness to the recovery memo are police official who are as good witnesses as any other person belonging to general public.

8. Arguments heard and record perused, in the light of which our discussion is as under.

9. It is admitted fact that prior information is communicated to the S.H.O. and on the basis of this prior information the search warrant was obtained, even then S.H.O. did not ask any private person for associating the raid. The search warrant has been obtained against two persons namely Chamnai and Abbas Khan but the name of Abbas Khan has been concealed in the F.I.R. Moreover, no witness has been produced by the prosecution to prove that the search warrant obtained against the search of house of Chamnai was his ownership or of some one else. It is also pertinent to note that the charas was not sealed at the time of its recovery and it was sealed after handing over the same to the Investigating Officer. The sample of the recovered charras was not immediately sent to the FSL for ascertaining whether the alleged contraband is charas or otherwise this delay for sending the sample to the FSL, has not been explained, hence it has created doubts in the prosecution case.

10. The prosecution is also silent that the search warrant was obtained against one Abbas Khan but no raid or any action taken against him by the complainant has been mentioned in the investigation nor has been explained at the time of examination of the prosecution witness that why the name of Abbas Khan has not been mentioned in the F.I.R. and why the raid was not made on his house. P.W-3 in his statement has clearly mentioned that prior to the raid the sketch of the house of Chamnai was prepared but the witness is silent regarding the preparation of the sketch of the house of Abbas Khan against whom the search warrant was obtained which suggests that the raid was concocted one and the story of the prosecution is cooked up only to enrope the present appellant/accused. At the time of raid the appellant/accused holding the charas in polythene bag in the courtyard does not appeal to a prudent mind that at the relevant time the appellant/accused holding the contraband in courtyard was waiting for the raid and producing the same to the police. P.W.3 in his statement has stated that the accused is a desperate person and is involved in narcotic that is why the search warrant was obtained that is why no one from public associated the raiding party. He further stated that the sketch of the house of appellant/accused was prepared before raiding which negates the version of P.W.3 because nowhere in Exh.P.W.3/1 is mentioned that the house where the raid was made, was the ownership of the appellant/accused.

11. The result of our above discussion is that the case of prosecution is full of doubt which goes in favour of the appellant/accused. Hence, the appeal of the appellant/accused is accepted by setting aside the sentence and conviction recorded by trial Court in the impugned judgment and acquit him from the charges levelled against him. He be set free forthwith if not required in any other case. N.H.Q./289/P Appeal accepted.