2002 PLP 44 (MLD)

This is a criminal appeal filed by Akram Khan against the judgment/order, dated 21‑9‑2000 of Judge Special Court Narcotics/Additional Sessions Judge, Bannu, vide which the appellant was convicted under Article 4 of the Prohibition Order and sentenced to one year's R.I. with a fine of Rs.1,000 or, in default of payment of fine to undergo 3 months' S.I. The benefit of section 382‑B, Cr.P.C. was also extended in favour of the convict/appellant.

2. Brief facts of the case, as reflected. from F.I.R. No.164, dated 9‑12‑1998 of Police Station Domel, are that on receiving information of selling narcotics Naik Nawaz Khan, S.H.O. Police Station Domel raided the house of appellant Akram Khan after obtaining search warrants from the Judicial Magistrate. He was accompanied by Hazrat Ali Khan, A.S.H.O., Habib Khan, A.S.‑I., Wazir Zada Khan, A.S.‑I., Ghulam Muhammad I.H.C., as well as police constables. He raided the house of the appellant and recovered one .30 bore pistol (Pak‑made), one bandoliar containing 8 cartridges, spare magazine and a plastic bag containing Charas weighing about 150 grams from the pillow of the bed, in the room of the appellant. 4 grams of Charas was separated for chemical analysis and sent to the Laboratory. The accused was arrested on the spot. After completion of the investigation, challan was submitted to the Court and the accused was charged under Article 4 of the P.O., to which he pleaded not guilty and claimed trial. The prosecution examined almost 3 P.Ws. P.W.1 Said Nawaz registered the case vide F.I.R. P.A. on the receipt of Murasila. P.W.2 Habib Khan is the marginal witness to the recovery memo. Exh.PC, vide which the Investigating Officer took into possession .30 bore pistol (Pak‑made), a bandoliar. having 8 live rounds of the same bore and one spare magazine recovered from the possession of the accused. 150 grams of Charas was also recovered from the cot under the pillow in the presence of the accused from the room of his house. P.W.3 Naik Nawaz Khan, S.H.O., is the complainant of the case. According to him, on receipt of some information about the accused that he is running a narcotic business in his house, he (P.W.3) alongwith police party raided the house of the appellant after obtaining search warrants from the Judicial Magistrate and recovered one .30 bore pistol alongwith a bandoliar having 8 live rounds of the same bore and a spare magazine. He also recovered Charas from the cot under the pillow of the bed in the room of the house of the accused. Charas was weighed and it came to 150 grams 4 grams of Charas was separated for chemical analysis and the remaining contraband was sealed into parcel. After the statement of the P.W.3, the prosecution closed its case.

3. On 26‑6‑2000, the accused was examined under section 342, Cr.P.C. He pleaded innocence but produced no defence. Consequently, after going through the record and hearing the prosecution and defence, the trial Court vide its judgment/order dated 21‑9‑2000, convicted the appellant under Article 4 of the P.O. and sentenced him to undergo imprisonment referred to above in para. 1 of the judgment.

4. Aggrieved from the said judgment/order, the convict/appellant Akram Khan has preferred the instant criminal appeal on the ground that the prosecution case is full of legal flaws, that the provisions of section 103, Cr.P.C. were not complied with and that no recovery has been effected from the appellant.

5. I have heard Mr. Saleemullah Khan, learned counsel for the appellant and Mr. Shaukat Hayat Khan, Assistant Advocate‑General for ,the State and have gone through the record.

6. Admittedly, the prosecution case is full of doubts and contradictions and stands on a week footings. Perusal of the statement of the P. Ws. clearly shows that there is no consistency. According to P.W.2 Habib Khan, one gram of Charas was separated which was sent for chemical test while according to Naik Nawaz Khan, S.H.O., 4I grams of Charas had been separated. The argument of the learned State Counsel holds no ground that as there is no enmity or ill‑will between the appellant and the complainant, so the contradictions of one gram and 4 grams is meaningless. This attitude of the prosecution clearly shows that the prosecution has taken the instant case for granted.

7. With regard to the search warrants, the complainant/S.H.O. has adopted a haphazard procedure. Moreover, the alleged contraband has) been recovered not from the possession of the accused/appellant but from the cot under the pillow in the room of the house of the accused in which so many inhabitants are living, according to the prosecution version. The complainant S.H.O. has also bypassed the requirements of section 103, Cr.P.C. for which it is mandatory that in such‑like cases at least two or more respectable inhabitants of the locality should be procured to attend and witness the search. According to the prosecution, the area is a residential area and there are so many houses and the people in the same vacinity were present but no body from the general public has been associated with the investigation which clearly shows slackness on the part of prosecution. The argument, on the other hand that the police witnesses are also competent witnesses, holds no ground in that in the instant case sufficient people were available from the public as the area is a residential area. So the mandatory requirements of section 103, Cr.P.C. have been bypassed. It is only in rare cases when nobody from the public is available to the police officer to witness the recovery, such requirement can be waived. The search requirement can be waived when search is made at lonely places or at odd hours or when abscondence of the accused with incriminating articles was apprehended if the searching officer had spent time to secure other persons to witness search. In the instant case, sufficient respectables from the locality were available but none of them were associated to witness recovery process in compliance with section 103, Cr.P.C. The last and the most crucial aspect of the case is that the prosecution has not exhibited the laboratory report, for reasons best known to them. According to the learned Assistant Advocate‑General, it was not necessary. In my opinion, the approach the learned Assistant Advocate‑General is not correct and the laboratory report must have been exhibited which is the cornerstone of the prosecution case.

8. So keeping in view all these factors regarding contradictions of the P.Ws. the procedure of the search warrants, I non‑exhibition of laboratory report and the violation of the section 103, Cr.P.C., all makes the prosecution case a jumble of doubts and contradictions and the benefit of doubt goes to the convict/appellant.

9. Accordingly, the appeal in hand is accepted and the conviction and sentence recorded by the trial Court is set aside and the appellant is acquitted of the charge. He shall be set at liberty forthwith if not required in any other case. N.H.Q./361/P Appeal accepted.