State Vs Ishfaq

I

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

Quaiciat OeoartmenO

Cr. A No. 188-N2023 (Motion)

State through Advocate General,

Appellant(s) Versus.

Ishfaq.

Respondent(s)

For Appellant(s): Iulalik Amjad Anayat, Addl; AG.

For Respondent(s) Nemo being a motion case. (occused)

Dute of hearing: 20.02.2025.

JUDGMENT

AURANGZ,EB, J. ThC appellantl Stare has filed the irrstant appeal under section 24 of The KPI( Nurcotics Sobstances Act, against the orderfiudgment of acquittal dated 10.09.2022 passed by the learned Additional Sessions Judge- /Judge Special Court, Havelian, whereby the accused/respondent was acquitted fiom the charges leveled against hirn by invoking provisiou of section 265-K Cr. P.C.

) F'acts of the case in brief are that on 19.A7.2{J21, on general complaint regarding

availabilit"v of narcotics in the house, the complainantrSHO alongwith police party raided at the house of accused/respondent and recovered 4791 grams of Charas from the corner of a room.

Sirnilarly, ICE weighing 625 grams was also recovered. Out of recovered stutfs, sarnples were separated for FSL. Accused was arested, murasila was drafted at the spot, wirich was later-on reduced into FIR l\ct. 722 clated 19.07 .2021 registered under section 9 (d) and 1l (b) of The Khyber Pakhtunkltwa, Control of Narcotics Stthstances Act and 15 of The Khyber Pahhtunkhwa Arms Act at Police Station, Havelian, Abbottabad

3.IJpon arrest of the accused and after completion of investigation, a separate challan was suirrnitted before the learned trial Court under sectiorr 173 Cr. P.C. Formal charge framed against him under sections 9 (d) & (c) of The Khyber Pakhnmkhwa, Control of Narcotics Substances Act, wherein, he did not plead guilty and claimed trial.

In orrJer to prove the case against the accttsed, the l'earncd trial Court asked the prosecution to produce it evidence/witnesses but except I,,W-1, llone other PWs rvas produced beftrre the Colrrt fcrr recording

e'*zidence and as the accused/respondent was in custody from his arrest, hence, having with no option the leamed trial issued notice under section 265-K Cr.P.C to the prosecution and when the prosecution failed to produce evidence, the learned trial Court acquitted the accused/respondent vide impugned order and judgment. Feeling aggrieved of the aforesaid iudgment of acquittal, the appellant/State has filed the instant appeal before this Court.

Argurnents of learned AAG appearing on behalf of appellant/State were heard in detail and the record perused with his able assistance.

5.It is the case of prosecution that it was a prior information with the complainant/SHO that ttre accused/respondent is a notorious clrug seller wiro has retained huge quantity of narcotics in his house for the sale purpose, however, despite suctr prior rnformation the complainant did not pay heed to make any test purchase from the accused/respondent, so as to strerrgthen the prosecution case, which makes the case doubtful.

6.More-over, it is an admitted fact that the complainant/SHO before raiding the house did not obtain the search w'arrant from the quarter

concemed and in the murasila/Fll{ he has also not mentioned any reason for not obtaining the search warrant. In order to meet the mandatory requirement of law as provided under section 27 of The Khyber Pakhtunkhwa Control of Narcotics Substances Act, he did not bother to approach the concemed Special Court to get warrant of search of the said house. Likewise, he has also not mentioned any valid reasoil for not obtaining th.e said warrant <rf searclr. In the casel it is held that an officer not below the rank of Sub-Inspector, ]pliee, or equivalent autho4zed in this Behalf bv the Federaf, Government or Provincial Government in exercise of hi,s power under section 2I o-f' the Control of It[arcotic Substances Act, 199 if is satisfied that a W section 20 ot'

the Act cannot be obtai ned. can enter into the witho waruant ctnd make

on the

slon

mentioned in the above Act. bv anv In the ent Exctse

on. went to the house of and

matle his seqrch and then bv makins

' State-Vs-Memjoo (2003 SCMR 88l)

Itpu s e _;c qr c h, r e c ov e r e d C h ff a;_fi o at_t h e _bcd&e m o the lvl satis

sectiou 2I ibid. The epubiued;Udv pf;eertou;4 qld2ldJfu Contral of I'{q.rcoti 1997 tvould show that onlv in exceptional cases in which the search warrant connot oossiblv be abtqined befbre cqnductiuE !l@ Lqd, {w officer quthotized in this behalf

of rctid witheut the wqrrant but this r;ower cannot be allowed to be used in everv case in the normal circumstcrnces- The Excise Inspectctr on the infttrmation, proceeded to condorct the ,ratdqud could convenientlv obtqin the search waruant from fug_Court of Special Judge but lte having -felt no negg!;l|-oJ' such warrant, transgressed the authoritv of lau, which would mqke the search of hpu;.e-llle?al. fhe bqne

General has not been able to us that in the

warrant could be dis with. We hav heard the learned Additional Adupcate-General have nU been able to.find the gccluittal of the respondent b)t lhe jfuerest of crtminA

qdnini$ru!ioa-afi@lke.

7 Police officials are also good witnesses as compared to the private witnesses, however, as per section 3l of The Khyber Pakhtunkhwa Control o-f Narcotics Substances Act, 2019, before raiding a dwelling house the complainant/ASHO was required to call upon the respectable inhabitants of the locality, however, he also failed to comply with this provision too. The section 31 of the Act is relevant, which, is reproduced as under:

ntlode qf nqaking searches and arrest: The provisions of the Code, except those of section 103, shall mutstis mutandis, apply to all searches and aruests:

Provided that section 103 of Code shall, in case of search of duelling house be strictly observed.

8.Similarly, the prosecution has not annexed the record of the house wherein, the accused/respondent was allegedly found present and recor/ery was effected, which fact also goes in favor of accused/respondent and makes the place of recovery doubtful

9.More and irrrportant aspect of the case is tirat the alleged occurrence took place on 19.07.2021 and the sample parcel were taken from the recovered stuff olt the same day, u'hich ought to be sent to the laboratory within 72 hours for

analysis but surprisingly, it reached at Forensic Science Laboratory with on 27.07.2021, which delay is not explained in anywhere on the record.

10.It is settled since long that even a single doubt or single circumstance which creates doubt in the mind of a prudent man is sufficient for the acquittal of an accused person. In the case2 the Hon'ble Apex Court has held that for the accused to be afforded the right of benefit of the doubt, it is not necessary that there should be many circumstances creeting uncertainty and if there is only ctne doubt, the benefit of the some must got to the petitioner. Similarly, in the case3 the Hon'ble Apex Court has held that single circumstance creating reasonable doubt in a prudent mind abotrt the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proo/'is alwa.tts on proseculiott to prove its case beyond t'ea-ronable shadovv of dowbt. Likewise, in Saghir Ahmed vs. 'l'he State and others (2023 SCIMR 2'11) Bashir Muha.mmC Khan v/s The State (2022 SCMR 986)

tho casea the Hon'ble Apex Conrt has held that Singlt circumstance crea.ting recisonable doubt in a prudent mind about the guilt at'accused makes him entitled to its benefits, not as a matter of gt'ct.ce qnd concession but as a matter of right.

?'he conviction must be basecl on ttnimpeacltable, trwskt,orthy and reliable evidence and any dottbt arising in prosecutictn's cose is to be resolved in favour of the accused. In the case5 the Hon'ble r\pex Couft has reiterated the sarne rational b1, observing that in these circumstqnces, a dent in the p':6sscution's case has been'created, benefit of'which must he given to the appellant. It is a settled law that single circuntstance creating u reasonable doubt in a prudent mind about the g:uilt of accu,sed make,s hirn entitled to its benefits, not e," a mattet" o-f grace and concession. but as a mo.tter of'right. The conviction ntust be based on unimpeachable, trustworthy qnel reliable evidence. R.eliance could also be made on the .iudgrnents6 of apex Court.

a Muhammad Sarniullah vs. l.'he State (20?2 SCivlR 998) Khalid Mchlrood alias Khaloo v/s The State (2022 !;CMlf t 148) 6 "Amir Muhammad IiLan v/s -lhe State" reponed as (2023 SCMR 566) Sarfaraz and another v/s The State (2023 SCN'IR 670), Muharnmad Ashraf alias Nikka v/s The State (20.?.2 SCMR l32B), I(ashif Ali alias Kalu v/s The State and anotlier (2022 SCMR l5lli), 'l'aiarnal Hussain Slrah vis 't'he State arrd another (2022 SCMII 1567).

11 It is settled law that before the trial an accusecl is presumed to be innocent unless proven guilty and once an accused slrcceeds to earn an acquittal order then double presuntption is attached to liis innocence and as such while hearing an appeal against acquittal, the appellate Court cannot tlisturb. or re\/erse or set-aside such an acquittal order unless the same is fbund to be perverse, shocking, artificial and over and above suffering fiom jurisdictional defect or non-r'eading of evidence or misreading of evidence. The above yardstick if applied to the present case, we found that the impugned acquittal order is neither perverse nor artificial nor suffering from misreacling or non-reading of eviderrce. It is also settied law that lvhile hearing of appeal, if on re- appraisal of evidence, a contrary vierv is spelling- out even this is not sufficient for interference in the acquittnl order unless it is established that none of thr: ground of acquittal finds support fiom the recorcl and evidence available on file. In the caseT the l{on'blr: Apex. Court has held that there an"e cet"tatn limitations on the power o.f the Appellate Court tct converl acqtittal into a corNiction. It i'v Jehangir vis Arninullah & others (2010 SCIvIR 491)

well-settled that "Appellate Court would not i.nterfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion dffirent -fi'om that of the Court acquitting the accused, provided both the concl:tsions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would inte.rfere in exceptionql cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too tuith a view only to avoid grave miscarriage of justice and for no other purpose. The view taken by this Court in cases is q well-known that in an appeal against acquittal this Cotr; would not, on principle, ordinarily interfere and in,steod would give due weight and considerqtiort to the findings of Court acquitting the accused. This approach rr slightlv diffbrent from that in an qppeal against conviction when leqve' is granted onfi, .for the re-appraisement of evidence which then is undertaken so as to see that bene.fit oJ' everv rectsonable doubt should be extenclecl to the accused. This dffirencc '/ Ghularn Sikandar v.MamatazKhan (PLD 198-5 SC ll)

approqclt is tnainly conditioned by the fact that the acquittal ccnrtes with it the two well-accepted presumptions: one intttal, l:hat, till found guilty, the accused is tnnocent; and tv,o that again after th.e triql a Court below confinned the assumption o/' innocence. This will not caruy the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (r) disregarded ruaterial evidence; (b) misread such evidence; (c) received such evidence illegally. In the casee the Hon'ble Apex Court has held thal whenever an accused person is acquitted of a criminal charge then he enjoys double presumption of innocence,' one be.fore the trial o.f the case and second after his acquittal. Similarly, in the caselO the l{on'ble Apex Cout has held that an acquittal appeal stands on a dffirent Jooting than an appeal against the conviction. In acquittal appeals, the superior Cou.rts generalfit do not interfere with unless they find that miscarriage of .iustice has taken place' The.fa.ctum that there can be a contrary vie'vv on re- ctppraisal of the evidence by the Court hearing the e Barkat Ati v/s Shaullt Ali & othels (2004 SCIvIR- 249) r0 The state v/s Bashar (PLD 1997 S.C 408)

t2

acquittal appeql sirupliciter would not be sfficient to jwstiJy interference with the acquittal judgment.

13.For the afore-stated reasons, the instant appeal is found meritless and the same is accortlingly dismissed in lifu..

Artnounced.

T'uhir I'S

UDGE

Hon'ble Justite Muhuntnad Faheen Wali & Hon'blr Justk:e , urJngzeb.