P L D 2005 Peshawar 1 (PLP)

NASIR-UL-MULK, C.J.

The appellant Bashir Ahmad, son of Abdur Rehman, resident of Peshawar was convicted by the Additional Sessions Judge/Judge Special Court, Peshawar on 8-7-2004 under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to 5 years' RI with the fine of Rs.1,00,000, in default of payment whereof to further suffer six months SI. The appellant was also granted the benefit of section 382-B, Cr.P.C.

2. The prosecution case as narrated in the F.I.R. dated 5-10-2003 by the S.H.O. of Police Station Pishtakhara is that on that day, he was on gasht under the supervision of D.S.P. Hayat Abad Circle. That meanwhile he received information about the presence of proclaimed offender by the name of Ahmad Zia in the house of Bashir Ahmad, son of Abdur Rehman (the appellant). The proclaimed offender was required in case F.I.R. No.430 dated 27-5-1999 for the offence of `Haraba', Police Station Pishtakhara. It is alleged that Ahmed Zia was a closed friend of Bashir Ahmad. The S.H.O. along with police officials raided the house of the appellant. They did not find the proclaimed offender in the house but instead upon searching the house found a black colour bag containing 3 bags of heroin, each weighing 1 Kg. The S.H.O. took that into possession and arrested the appellant who was present in the house. From each packet the S.H.O. separated 1 gram of the contraband for chemical examination. The incident was reduced into writing as a report and sent as a Murasila to the police station where a case was registered at Police Station Pishtakhara vide F.I.R. No.467. The Investigating Officer had prepared the recovery memo. Exh. PC. The samples were sent through application Exh. PW. 2/1 to the laboratory. The laboratory report, which had declared the sample to be heroin is Exh. PW.2/2. After completion of this investigation challan was submitted to the Trial Court. The accused pleaded not guilty and faced trial.

3. At the trial the prosecution produced four witnesses. Muhammad Bashir P.W.1 had registered the case upon receiving the Murasila at the police station. The S.H.O. of the Police Station, Gul Mast, who was also the Investigating Officer, was examined as P.W.2. One of the witnesses to the recovery memo. Exh.PC, Gohar Zaman S.I., was examined as P.W.3 and the S.H.O. of the police station at the time of submission of challan Fazal Muhammad Khan testified as P.W.4. The accused's statement under section 342 was recorded in which he denied the occurrence and stated that one of his 3 sons, Shakeel, had a dispute with the relative of Gul Afzal, D.S.P. and the police party had raided the house for the arrest of Shakeel, but finding no one present they left after humiliating the woman folk. That he was arrested on the following day and the recovery was neither effected from his house nor in his presence. The accused however did not testify on oath.

4. The learned counsel for the appellant read the entire evidence and pointed out the various discrepancies in the statements of the Investigating Officer and the marginal witness to the recovery memo. He next contended that nothing has been brought on record to show that Ahmad Zia, for whose arrest the police raided the house of the appellant, was a proclaimed offender. Further that after the police did not find the said Ahmad Zia in the house there was nothing for them to search the house.

5. The learned counsel representing the State half-heartedly argued the case on behalf of the State. He however Contended that the, appellant was caught red-banded inside the house and the contraband recovered from the bag was declared by the Forensic Science Laboratory to be heroin. That there was no reason for false implication of the appellant.

6. The prosecution case is that the police had gone to the house of the appellant in order to arrest a proclaimed offender, Ahmed Zia who was required in a case of Haraba and it is alleged, that he was a closed friend of the appellant and was, therefore, hiding in his house. Ahmed Zia admittedly was not found in the house. It has also come in evidence of the prosecution that there was no other exit from the house except the entrance through which the police entered and, therefore, there was no possibility that Ahmad Zia could have escaped through another way. The prosecution witnesses have further confirmed that the appellant's house has only one room. Obviously, it should not have taken the police long to find out that the person they wanted to arrest was not present. The prosecution has also not brought on record any document regarding the complicity of Ahmad Zia in the criminal case or that he had been declared proclaimed offender. The witnesses admitted that they had not obtained a search warrant. The entry into house of the appellant without a search warrant would have been justified had it been for the arrest of the proclaimed offender. The prosecution however has failed to bring anything on record regarding the fact that Ahmad Zia had been declared as a proclaimed offender, though a specific question was put to the, witnesses in cross-examination. Since the purpose of raiding the house of, the appellant was to arrest Ahmad Zia, who being a proclaimed offender has not been proved, the very entry of the police in the house of the appellant was illegal.

7. Even if it is assumed that the purpose of entering the house of the appellant was to arrest Ahmad Zia and that he was a proclaimed offender, once he was not found in the house there is no reason why they should have gone around and started searching bags in the house. It is the prosecution case that the bags from which the heroin was recovered, was hanging from a pillar. The search was unwarranted when both the prosecution witnesses had admitted that they had no information that the appellant had been indulging in narcotics. Thus the police should have simply left the house once they found that Ahmad Zia was not there. There is another major contradiction in the statement of P.W.2 and P.W.3. P.W.2 had stated that in the house he found the appellant along with a woman and two kids. He however stated that they were not accompanied, by a lady constable at the time of entering the house. This statement is contradicted by the witness to the recover memo. P.W.3 who stated that there were 2 lady constables at the time of the raid. He also mentions the presence of D.S.P. Gul Afzal, regarding whom he Investigating Officer P.W.2 is silent. This creates doubt upon the recovery of the heroin from the house of the appellant. For the foregoing reasons we hold that there are reasonable doubts in the prosecution case, the benefit of which must go to the appellant. The appeal is allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charge framed against him, He shall be set at liberty if not required in any other case. H.B. T. /271 /P Appeal allowed.