Sher Ali Vs The State.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Criminal Appeal No. 422-P/2025.

Date of hearing: 22.09.2025.

Barrister Amir Khan Chamkani, for the appellant.

Arbab Fakhr-e-Alam, Addl. AG, for the State.

JUDGMENT

SAHIBZADA ASADULLAH, J.- Appellant, Sher Ali, tried by learned Additional Sessions Judge-II / Judge Special Court, Charsadda at Tangi, in case FIR No. 147, dated 24.02.2020, registered under sections 9(d) / 11(b), Khyber Pakhtunkhwa, Control of Narcotic Substances Act, 2019, Police Station, Tangi, district Charsadda, and through the impugned judgment dated 17.04.2025, he was convicted under section 9(d) of the Act, and sentenced to suffer ten (10) years rigorous imprisonment, and to pay fine of Rs. 5,00,000/- (rupees five hundred thousand). In default whereof, to further undergo six (06) months SI. Under section 11(b) of the Act, the appellant was convicted and sentenced to suffer ten (10) years rigorous

imprisonment, and to pay fine of Rs. 5,00,000/-. In default whereof, to further undergo six (06) months SI. Benefit of section 382-B Cr. PC was extended to the appellant.

2.The brief facts giving rise to the instant appeal are that Masood Khan, SHO, accompanied by Nasir Khan, ASHO, Marwat Khan, ASI, Arshad Khan, ASI, Rasheed Khan, ASI, Lady Constable Naheed No.1245, and other police officials, conducted a raid on the house of the accused Sher Ali. At the relevant time, the accused was found seated in a Parado vehicle, who, upon being intercepted, was subjected to personal search, resulting in the recovery of 260 grams of ICE, a 9mm pistol with a magazine, a bandolier containing 41 cartridges, cash amounting to Rs. 58,000/-, and two ATM cards. A search of the vehicle further yielded heroin weighing 1146 grams and 1194 grams concealed in the covers of its front doors. The accused was arrested on the spot, the recovered contraband and articles were duly seized, and the vehicle was taken into possession, whereafter the FIR (Ex.PA) was registered.

3.On completion of the investigation, a complete challan was submitted before the court of competent jurisdiction, where the appellant/accused was summoned, and provided with copies of relevant documents in compliance with the provisions of section 265-C Cr.PC. Thereafter, the appellant/accused was formally charge sheeted, to which he pleaded not guilty and claimed trial. As such, the learned trial court was pleased to direct the prosecution to produce its evidence. In order to prove its case, the prosecution produced and examined as many as six (06) witnesses, whereafter the statement of the appellant/accused was recorded, wherein he professed innocence, and did not opt to record his statement under section 340(2) Cr. P.C. or to produce evidence. On conclusion of the trial, the learned trial court found the appellant guilty of the charge, and as such he was convicted and sentenced, where against the instant appeal has been preferred.

4.Heard. Record perused.

5.On receipt of a complaint from the general public, an application was submitted before the

learned Judicial Magistrate for the issuance of a search warrant. The application contained particulars which persuaded the Station House Officer of the concerned police station regarding the involvement of the accused in drug trafficking and the preparation of narcotics at his residence. Upon being satisfied, the learned Magistrate issued the search warrant.

The seizing officer, after collecting the warrant, proceeded along with a considerable police force to raid the premises. During the search of the house, the accused was found seated in a Prado vehicle parked in the basement. Upon searching his side pocket, 260 grams of “Ice” (crystal meth), a 9mm pistol, along with a magazine and a bandolier containing 41 cartridges, cash amount Rs. 58000/-, and two ATM cards were recovered. Further search of both front doors of the vehicle led to the recovery of two separate packets containing 1,146 grams and 1,194 grams of heroin, respectively, which were duly taken into possession. A recovery memo was prepared on the spot, test samples were separated in accordance with the law, and the accused was formally arrested. The samples were forwarded to the office of the Chemical Examiner, who confirmed

the recovered substances as “Ice” and heroin. The accused was thereafter committed to trial and, upon conclusion, was convicted.

6.In order to appreciate the attending circumstances of the case, it is deemed essential to examine the statements of the material witnesses, particularly the seizing officer (PW-2), the Moharrir (PW-6), and the investigating officer, who appeared and recorded his statement. The complainant disclosed the circumstances in which he received the information, the manner in which the house was raided, the recoveries effected, and the arrest of the accused. The Murasila fully corroborated the version of the complainant and explained the circumstances in the same manner as narrated by him. This Court is therefore required to determine whether the witnesses remained consistent on material particulars and whether the defence could succeed in creating any material dents in the prosecution's case.

7.It stands admitted on record that prior to the raid, an application was submitted before the learned Judicial Magistrate for obtaining a search warrant.

The application disclosed that complaints had been

received regarding the accused’s involvement in the business of narcotics, and that there was reason to believe that instruments used for the preparation of narcotics, as well as a huge quantity of narcotics, were kept at his residence. On this basis, the relevant police official approached the Magistrate, recorded his statement, and obtained a search warrant. The manner in which the application was presented and the warrant obtained itself indicated that there was a strong likelihood of recovery of contraband articles from the house of the accused, subject to a search being conducted in accordance with the law.

However, it is noteworthy that when the complainant arranged the raid, a considerable number of police officials were assembled. Upon entering the basement of the house, the accused was found seated in a Prado vehicle. He was apprehended, and upon personal search, 260 grams of “Ice” were recovered from his side pocket, while heroin was shown to have been recovered from the doors of the vehicle.

Strangely, apart from the recovery effected from the accused’s person and his vehicle, neither the investigating officer nor the complainant considered it necessary to search the premises itself, despite the

fact that the very object of the warrant was to recover a large quantity of narcotics and instruments allegedly used in their preparation. The house in question was a large property, measuring about 7 kanals and containing numerous rooms, yet no attempt was made to search it. This omission, given the circumstances, casts a serious doubt upon the manner in which the raid was conducted and the true nature of the recoveries alleged.

8.To assess the genuineness of the

prosecution’s claim, I carefully examined the statements of the witnesses. When the depositions of PW-1 and the seizing officer are juxtaposed, it becomes evident that material inconsistencies have crept into their testimony. One of the witnesses deposed that after obtaining the search warrant, he, along with the police officer, departed from the police station and reached the spot at 3:20 p.m.

However, the marginal witness did not corroborate this version regarding either the manner in which the police station was left or the time at which they reached the place of occurrence. It is noteworthy that the complainant, when asked about the presence of the general public at or near the spot, stated that

upon arrival of the police, the people fled away. He further admitted that no statement of any independent witness from the vicinity was recorded.

Conversely, the marginal witness asserted that, being afternoon, no members of the general public were present at the scene. He also did not support the complainant’s stance that people had fled upon the arrival of the police. This contradiction concerning the presence or absence of independent witnesses demonstrates that both witnesses were suppressing the truth in order to safeguard the prosecution’s case.

Such deliberate indulgence in falsehood is a circumstance which this Court cannot lightly ignore.

Furthermore, the complainant stated in Court that he, along with the investigating officer, remained at the spot until 6:30 p.m., whereas the marginal witness contradicted this assertion by testifying that the entire party, including the complainant, the investigating officer, and other police officials, spent only about ninety minutes at the scene before leaving for the police station. The investigating officer, examined as PW-4, also did not support either of these accounts. He deposed that, upon reaching the spot, the complainant was not present

there and had to be summoned from the police station. This version is irreconcilable with the complainant’s own statement that he was already present when the investigating officer arrived. These glaring contradictions regarding the complainant’s presence or absence, the duration of stay, and the circumstances of recovery strongly suggest that the prosecution witnesses were not speaking the truth.

The statement of the complainant is suffering from material contradictions, which create serious doubt about his presence at the spot as well as the veracity of his statement. Let alone his statement is not corroborated by tangible substance, therefore, his testimony cannot be based for recording conviction for the offence, which entails capital punishment.

Reliance is placed on the judgment titled (Waqas Ahmad versus the State) reported as 2025 SCMR 1087. When the most relevant and material witnesses fail to support each other on such essential aspects, it casts a serious doubt not only on the alleged recoveries but also on whether the raid was ever conducted in the manner claimed. Such concealment of material facts fatally affects the

prosecution’s case and leads this Court to the conclusion that the witnesses are unworthy of credit.

9.The search warrant itself reflects the eagerness of the complainant to raid the house and his satisfaction regarding the alleged presence of a large quantity of narcotics and instruments used in the preparation of the contraband. However, when the raiding party reached the premises, the accused was found not inside the house but in a vehicle parked outside. He was apprehended, yet no search of the house was conducted. This omission defeats the very object for which the search warrant had been obtained. If, as alleged, the complainant had received information from the general public regarding the involvement of the accused in narcotics trafficking, it was incumbent upon him and the raiding party to conduct a search of the house.

There was every possibility that narcotics could have been recovered from within the premises. The failure to do so suggests that the information furnished to obtain the warrant was not only incomplete but concealed material facts, thereby casting doubt on the bona fides of the prosecution and revealing an interest to falsely involve the accused. It is

significant to note that although the allegation pertained to the accused dealing in “ice” and heroin, the recovery eventually shown was of 260 grams of ice from his pocket and two packets of heroin from the vehicle’s doors. If indeed the accused was operating such a business, as alleged, one would expect substantial recovery from the premises as well. This inconsistency further undermines the prosecution’s narrative.

10.Another glaring aspect is the absence of independent witnesses. While it is true that the association of private witnesses is not a strict legal requirement in every case, yet when a search warrant is obtained and the raiding party has ample opportunity to associate respectable inhabitants of the locality, failure to do so without any plausible explanation creates a serious dent in the integrity of the proceedings. The complainant’s explanation that people fled on the arrival of the police is unconvincing. If the public was present, there was no reason why none were joined; if absent, there is no explanation why such absence was not recorded contemporaneously. His willful disregard of this requirement further taints his credibility. The

investigating officer, examined as PW-4, added another layer of inconsistency. In cross-examination, he claimed to have remained at the spot even after the complainant and other police officials had left, and that he departed only in the late hours of the night. This version is irreconcilable with the complainant’s claim of remaining there until 6:30 p.m. and the marginal witness’s assertion that proceedings lasted only ninety minutes after their arrival at 3:20 p.m. If the recovery was confined to the vehicle and to the person of the accused, there was no necessity for the police to linger at the premises until nightfall, unless the intention was to conduct a house search, which, tellingly, was never done. When the statements of these witnesses are juxtaposed, ambiguities and contradictions abound.

Their failure to support one another on crucial aspects of the case has caused irreparable damage to the prosecution’s story. The contradictions are not minor or peripheral; rather, they go to the root of the matter and demonstrate that the conduct of the complainant and the testimony of the prosecution witnesses cannot be relied upon. The above- discussed infirmities, glaring omissions, and

contradictions in the prosecution's case led us to an irresistible conclusion that the prosecution has failed to prove the charge against the appellants beyond a reasonable doubt. It is a settled principle of law that, for giving the benefit of the doubt, it is not necessary that there should be so many circumstances; rather, a single circumstance creating reasonable doubt in a prudent mind is sufficient for extending its benefit to an accused not as a matter of concession but as of right. Reliance is placed on the cases of “Manzar Abbas and another versus The State” (2025 SCMR 1024) "Muhammad Mansha v. The State" (2018 SCMR 772) and Najaf Ali Shah v. The State (2021

SCMR 736).

11.The Investigating Officer, when examined, admitted that no copy of Register No. 19 was collected or placed on record, and conceded that the same was not available before the Court at the time of his testimony. The investigating officer further admitted that the appellant/accused is not involved in a similar nature previously. An objection was also raised regarding the sample parcels. The complainant asserted that he had signed each parcel;

however, when parcel No. 1 (Exhibit P-1) was

inspected, no such signature was found. The Court itself observed this discrepancy, which is duly noted on file.

12.An attempt was made by the prosecution to persuade this Court that the principle of appreciation of evidence in ordinary criminal cases and in cases under the Act stands on a different footing. It was argued that once, in prosecutions under the Act, the safe custody of the recovered contraband and its safe transmission to the office of the Chemical Examiner is proved, the role of the witnesses becomes secondary, and the documentary evidence would prevail. We are constrained to express surprise at such a submission. Under no circumstances can the principle of appreciation of evidence in cases under the Act be distinguished from that in ordinary criminal cases. To accept such a proposition would be to apply a principle alien to criminal jurisprudence. In our considered view, the credibility of the witnesses, whether in ordinary cases or under the Act, remains of foremost importance. A witness must first satisfy the Court that he is speaking the truth and that his integrity and credibility are beyond question. Only thereafter can the subsequent

evidence collected by such a witness be relied upon.

When a witness, from the very inception, is found to be concealing facts or indulging in falsehood, his testimony loses its sanctity, and when substantive evidence fails to connect the accused person with the commission of the offence or is disbelieved, corroborative evidence is of no help to the prosecution, as the corroborative evidence cannot by itself prove the prosecution's case. In the instant case, given the doubtfulness of the direct substantive evidence, the corroborative effect of the recovery is insufficient. Reliance is placed on the judgment of the apex court titled “Muhammad Aslam vs. The State” (2025 SCMR 1240). In such circumstances, to place reliance upon the version regarding the subsequent proceedings would not only be unsafe but would amount to adopting an approach wholly inconsistent with the settled principles of criminal jurisprudence. We are, therefore, clear in our view that the appreciation of evidence in ordinary criminal cases and in cases under the Act is one and the same. Any deviation or departure from this rule would render the prosecution's case a nullity and would run counter to the spirit of the law, and as

such, this Court is not inclined to accept such a departure.

13.The attending circumstances of the case lead this court to the conclusion that the learned trial Court has not appreciated the evidence brought before it, in its true and legal perspective, and as such, the impugned judgment is liable to be set aside. Hence, the criminal appeal is allowed. The impugned judgment dated 17.04.2025, passed by the learned Additional Sessions Judge-II/JSC, Charsadda at Tangi, is set aside, and the appellant, Sher Ali, is acquitted of the charge leveled against him in case FIR No. 147, dated 24.02.2020, registered under sections 9(d)/11(b), Control of Narcotic Substances Act, 2019, police station, Tangi, district Charsadda. He shall be set at liberty forthwith, if not required to be detained in any other criminal case.

Sd

JUDGE

Announced.

Tariq Jan. SB, Mr. Justice Sahibzada Asadullah, HJ.

Reliance is placed on the judgment of the apex court titled “Muhammad Aslam vs. The State” (2025 SCMR 1240), wherein, it has been held as under:

“When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case". In the instant case, given the doubtfulness of the direct substantive ocular evidence, the corroborative effect of the recovery is insufficient.”