Sanaullah and others Vs The State

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Cr.Misc. (Q) No. 04-A/2026

JUDGMENT

Date of hearing...................05.10.2026.................................

Petitioner (Sanaullah and others) By Abdul Saboor Khan, Advocate.

Respondents. (State) By Malik Amjad Inayat, AAG.

ABDUL FAYAZ, J.- Through the instant petition filed under Section 561-A Cr.P.C., the petitioners have called in question paragraph No.16 of the judgment dated 09.04.2026 passed by the learned District & Sessions Judge/Special Court, Kohistan Lower, to the extent whereby, after acquitting respondent No.4, the learned trial Court directed initiation of criminal proceedings against the petitioners.

2.Briefly stated facts of the case are that the FIR No.273 dated 12.10.2025 was registered at Police Station Pattan under Section 9(i)3(c) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, against respondent No.4, Muhammad Saleem, on the allegation of recovery of 1050 grams of chars from his possession. Upon completion of investigation, challan was submitted and

respondent No.4 was put to trial. The prosecution examined five (05) witnesses, whereas the accused, after recording of his statement under Section 342 Cr.P.C, did not opt to produce any evidence in defence.

3.After appraisal of the prosecution evidence, the learned trial Court noticed discrepancies relating, inter alia, to the relevant register entries, safe custody and transmission of the case property, timings reflected in the relevant documents, nature and description of the recovered substance, non-production of parcel No.01, and contradictions between the witnesses associated with the alleged arrest and recovery. Consequently, the prosecution case was found doubtful and respondent No.4 was acquitted through judgment dated 09.04.2026. However, in paragraph No.16 thereof, the learned trial Court proceeded further to conclude that the recovery had been planted upon the accused and directed that a complaint be forwarded against the present petitioners for offences under Section 32(d) of the KP-CNSA and Sections 166(2) /

167 / 182 / 193 / 195 / 196 PPC.

4.Pursuant thereto, complaint dated 16.04.2026 was forwarded to the learned Judicial Magistrate / Special Court, Kohistan Lower. The learned Magistrate initially considered holding an inquiry under Section 202 Cr.P.C and subsequently, vide order dated 13.05.2026, formed the view that sufficient grounds existed to proceed against the accused officials and summoned them under Section 204 Cr.P.C. Hence, the instant petition.

5.Arguments heard and record gone through.

6.The pivotal question requiring determination is whether the discrepancies and deficiencies noticed by the learned trial Court, which furnished basis for extending benefit of doubt to respondent No.4, were by themselves sufficient to record a positive finding that the present petitioners had deliberately planted narcotics upon him and had thereby committed the offences mentioned in paragraph No.16 of the judgment. On careful examination of the record, the answer appears to be in the negative.

7.There is a marked distinction between failure of the prosecution to prove its case beyond reasonable doubt and an affirmative finding that the police officials deliberately fabricated a criminal case or planted contraband upon an accused. The former may legitimately result from contradictions, defective investigation, broken chain of custody or other evidentiary shortcomings; however, the latter necessarily requires material reasonably demonstrating deliberate fabrication, malafide or conscious abuse of authority. One cannot automatically be inferred from the other.

8.In the present case, the deficiencies noticed by the learned trial Court essentially related to contradictions amongst the prosecution witnesses, discrepancies in the relevant record, safe custody and transmission of the alleged narcotics, and other shortcomings in the investigation. Such deficiencies were undoubtedly relevant for examining whether the prosecution had proved its case against respondent No.4 beyond reasonable doubt and could, therefore, justify his acquittal. However, those

very deficiencies, without some independent material pointing towards deliberate fabrication, could not by themselves furnish sufficient basis for the categorical conclusion that the recovery was planted by the petitioners.

9.The record placed before this Court also does not disclose any complaint made by respondent No.4 during the investigation or trial alleging that the petitioners had subjected him to vexatious arrest or had planted narcotics upon him. More importantly, no separate material has been referred to in the impugned judgment demonstrating the requisite element of deliberate or malicious conduct on the part of the petitioners. Mere lapses, contradictions or even defective investigation, without anything further indicating conscious fabrication, cannot ipso facto expose the officials concerned to criminal prosecution.

10.The acquittal of an accused on account of reasonable doubt operates in his favour because the prosecution is required to establish its charge beyond reasonable doubt.

It does not necessarily follow that the

prosecution witnesses were guilty of fabricating the case. Therefore, in the absence of independent material capable of supporting such a conclusion, the shortcomings which rendered the prosecution case doubtful could not legally be converted into an affirmative finding of planting of narcotics or fabrication of evidence.

11.The complaint dated 16.04.2026 is a direct consequence of the observations and direction contained in paragraph No.16 of the judgment dated 09.04.2026, while the subsequent proceedings before the learned Judicial Magistrate also emanate therefrom.

Once the foundational direction is found to be unsupported by sufficient material establishing the essential ingredients of the offences attributed to the petitioners, continuation of the consequential proceedings would amount to an abuse of the process of Court, warranting exercise of inherent jurisdiction under Section 561-A Cr.P.C. to secure the ends of justice.

12.Consequently, the instant petition is allowed. Paragraph No.16 of the judgment dated 09.04.2026 passed by the learned

District & Sessions Judge/Special Court, Kohistan Lower, to the extent whereby criminal proceedings were directed to be initiated against the present petitioners, is set aside. As a necessary corollary, the complaint dated 16.04.2026 and all proceedings arising therefrom and pending before the learned Judicial Magistrate / Special Court, Kohistan Lower, including the consequential orders dated 27.04.2026, 13.05.2026 and 03.06.2026, are hereby quashed.

Announced:

JUDGE

/*Arshad Iqbal*/