Siraj ud din Vs State & another

Judgment Sheet

PESHAWAR HIGH COURT, MINGORA BENCH/

DAR UL QAZA, SWAT

JUDICIAL DEPARTMENT

JUDGMENT

Cr.A. No. 246-M12016.

Date of hearing ....14.02.2018.

Apnellont: ud-D b Farid Ahma Advocale.

Respondents: ( the State & I anotheil bv Mr. Rahim shah, Astt: Advocote General.

MOHAMMAD IBRAHIM KHAN, J..

This is an appeal under section 410 ofthe Code of Criminal Procedure against the verdict rendered in Special Court Case No. 30/ CNSA of the year 2016 dated2l.ll.2016. The leamed Sessions Judge/Judge Special Court/Zila Qazi Swat on implication of the accused/Appellant Siraj-ud-Din in case FIR No. 185 dated 22.02.2016 registered at Police Station Mingora District Swat convicted and sentenced him under sections 9 (c) CNSA as under:-

r' d_ 1. llniler section 9 k) CNSA to 3 years igorous impisonment along with fine of Rs. 30,000/- or in ilefault thereof shall further suffer 3 months Sl. Howeaet, benefit of section 382-8 Cr. P.C. was extenileil to the accus eil/Appellant. Naw.b (D B.) Hon'ble Mr. Justic€ Mohamnad lbrahim Khan Honble Mr Jusrice Muhammad Nasir Manfooz

) The version of prosecution AS

advanced through 'Murasila' followed by lodging of the First Information Report would reveal that the complainant Salim Khan ASI in view of prior spy information that accused/Appellant has been involved in selling of narcotics on large scale. Therefore, as per instance of the informer he (complainant) along with other police party apprehended the accused at a place of occurrence i.e. known as people Chowk Mingora. During his personal search, the police recovered a plastic bag from his right hand which contained packet, out of which, on further search 1069 grams Chars were recovered. The police also recovered sale proceed of Rs. 9,000/- comprised upon notes of different denomination. Thereby, out of the recovered Chars 5 grams were separated for , ,-)_ chemical analysis while the rest were sealed into r separate parcel.

3.Thereafter, the leamed Sessions Judge Swat being in the capacity of Judge Special Nawab (D B ) Honble Mr Justrc. Mohammad Ibrahim Khan Honble Mr. Jrsiic€ Muhammad Nast Mahfooz

Court charge-sheeted the accused/Appellant on 13.05.2016 and when he did not plead his guilt.

The prosecution examined Akhtar Ayub SHO as PW-l, Mian Sahibullah Madad Muharir as PW- 2, the complainant/Seizing Officer as PW-3, Asad Constable as PW-4, Sher Bahader ASI as PW-5, Muhammad Haleem Khan ASHO as PW- 6 and under the statement of Mr. Mujarab Khan leamed Public Prosecutor Swat, evidence of the prosecution was put to an end.

4 At the end, the accused/Appellant was examined under section 342 Cr.P.C. He negated his involvement in this case and posed innocence. After hearing the parties at length the decision under conviction for the sentences was delivered.

5 Having heard arguments of learned counsel for the accused/Appellant and leamed t/- Astt: Advocate General appearing on behalf of f the State, record gone through with their assrstance.

6 I-eamed counsel for the

accused/Appellant referred to 2008 YLR 1562 Nawab (D B.) Honble Mr. Justice MohaDmad lbrahim Khan Hon'ble Mr. Justice MLrhammad Nasir Mihfooz

(Lahore) " Multommad Younis V/S The State" with particular reference that the Seizing Officer was below the rank of Sub-lnspector,2004 YLR t3 03 ahore)" Muhammad Ya sin V/S The Stqte. on the same analogy and 2016 P Cr. LJ 1234 (Lahore) " Shahid Mehmood V/S The State, wherein in view of the contradictory statements of the recovery memo the then an accused/Appellant was given the benefit of doubt by way of his acquittal.

7 It appears from the record that on the basis of prior spy information, the complainanVSeizing Officer by the rank of ASI along with other police officials apprehended the accused at the instance of informer and out of his personal possession recovered Chars 1069 grams along with sale proceed of Rs. 9,000/-.

The very contents of 'Murasila' followed by odging of the First Information and even the g-- I d:

charge so framed against the accused/appellant would reveal that the recovery of contraband Chars was effected in thickly populated area i.e.

'People Chowk Mingora'and that too in view of Nawab (D.B ) Ho,'ble Mr. Justice Mohammad Ibrahi,n Khan Hont'le Mr J6tice Muhmmad Nair Malfooz

prior spy information. Yet all the prosecution witnesses are police officials, this Court is also conscious ofthe fact that the police officials can be as good witnesses as compared to private witnesses and in some cases even can better present the prosecution version before the competent Courts of law. But in context of the present case, the situation is little bit different, as the alleged recovery has been admittedly effected from Shahi road then it was boundan duty of the prosecution to least associate some pflvate or independent witnesses with the recovery process in the eventuality when the police party in general and the Seizing Officer in particular was aware of the place of occurrence due to prior spy information.

8 It is also an admitted fact surfacing on the record that the alleged recovery of contraband Chars w as made by an official of il-) r " -Poli". Department below the rank of Sub- Inspector in violation of Section 21 of the Control of Narcotic Substances Act, 1997.

Though, in some area this privilege has been Nawab (D.B.) Hon'ble Mr' JDstic€ Mohammad lbrahim Khan Hon'ble Mr. Justice Muhamrnad Nas,r Mahfooz

extended to officials of lower rank, but that differentiation existed in special parts of the country like District Chitral where the Scout officials have been given these powers under the gazette Notification. But in this part of country i.e. District Swat, this concession has not yet been extended. In this regard, reliance has been placed on 2008 YLR 1562 (Lahore) Muhammad Youn The The

relevant of the ibid jtdgment speaks of:- --5s.9(b), 2 1 & 22---Investigation conducted by an Assistant Sub- Inspector of Pollic---Validity--- Police Officer of the rank of an A.S.-1. had raided the accused, recovered the narcotic subslance, prepared the recovery memo. and, thus, had practically conducted the entire investigation---Investigations carried out by an A.S.-1. were violative of 5s.21 and 22 of the Control of Narcotic Substances Act 1997, because an oficer below the rank of Sub-Inspector of, Police could nol seize in any public Place and had no authority to search and arresl a person for recoverY of narcotics---Said proceedings carried t4 out by Assistanl Sub-Inspector of police and recovery memos prepared by him had no legal force and could not lead to conviction---Prosecution had failed to prove its case in a. legal manner---Accused was acq uilte d in circ umstances.

Nawab (D B.) Honble Mr. Jusrice Mohammad lbrahim Khan Hon'bleMr Justice Mulramnad Nast Mahfooz

Same view has further been affirmed by the case law cited as 2004 YLR 1303 uhor " Muhammad Yasin V/S The Slate" wherein it has been held:-

--5s.9(c), 2l & 22--Appreciation of evidence--- Entire invesligalion in lhe case had been made b! Assistsnt Sub Inspector o/ Police who had recovercd nsrcotic subslonces, made lhem into sealed parcels, prepared lheir sample sealed parcels and also drufled ils tecovery memos. as well the complainl ond ulso recorded slolemenls of witnesses who afiesled rccover! memos.--- Validily-- Invesligatlons canied oul b!, said police oflicer. were violalive of 5s.21 & 22 of Control o/ Narcolic Subslsnces . Act; 1gg7--Officer below the rank of Sub - Inspectot of Police could nol seize in an)t public place and had no authotily lo search and arrcsl a person for recovery of narcotics--- Prcceedings' of search, srrest and recovery, could nol be processed or csnied oul by Assistanl Sub-Inspeclot ol Police axed rccovety memos. prcpsred by him carried no legal Iorce and accused on basis of investigalions csr ed oul b! said o/Jicer could not be convicted--- Assislanl Sub Inspeclot of Police hsving car ed oul entire invesligalion in violalion of mandalor! provisions of 5.21 of Contrul of Notcolic Subslances Acl, 1997, conviction snd senlences sb'arded to accused were sel uside and he wts acquilled of charge againsl him.

9 In case of narcotics primary importance has been attached to the mode and g- t/- manner of the alleged recovery of contraband Chars. In context of the present case, the Seizing Officer Saleem Khan stated in his cross- examination that the accused at the time of alleged recovery on sighting the police did not Nawab (D B.) Hon'ble Mr. Justice MohaD,,ad Ibrahim KhaD Hon'ble Mt Jslice Muhammad Nalir Mahfooz

I

try to decamp from the spot, as he could easily make his presence whisk off from the place of recovery being thickly populated area. This PW further deposed during cross-examination that no test purchase was obtained from accused.

Above all, PW-4 Asad Constable totally negated the version of prosecution to the effect that the alleged contraband Chars was recovered from the pocket of 'Bunyian' (c-r!+) of the accused, whereas it is case of the prosecution that the recovery of Chars was effected from the packet wrapped up in the plastic bag held by the accused at the relevant time in his right hand.

10.Moreover, the samples separated for chemical analysis of the FSL has been sent to the concerned Laboratory via receipt No. 168/21 dated 23.02.2016 through Muhammad Hussain Constable No. 2198, but this important witness r^ t4 has not been examined by the prosecution in order to further authenticate the veracity of FSL report which though received in positive to the effect that the recovered contraband is Chars.

Nawab (D B.) Hon'ble Mr Jusrice Mohammad lbrahim Khan Hon'ble Mr Juslice MuhammadNasir Mahfooz

11.In view of the above discussion, we are of the firm view that the prosecution failed to prove its case against the accused./Appellant beyond any shadow of doubt; therefore, his conviction cannot be maintained, ergo, while extending the benefit of doubt, we accept the appeal filed by the Appellant by setting aside his conviction and sentence acquit him of the charges levelled against him. He be set free forthwith, if not required in any other case. More so, the seizing officer PW-3 Saleem Khan states that he weighed the contraband Chars twice but PW-4 Asad Constable No. 1737 states that in his presence only once the weighment was carried out, which further creates doubt as to its weighment.

12.Last but not the least there are some glaring discrepancies in the statements of PWs.

Accordingly the accused/Appellant was apprehended at 09:00 hours whereas, the most b, tr--.' important PW-4 Constable Asad No. 1737 witness to the recovery memo states that they had come to the place from where the Nawab (D.B ) Hon'ble l"rr. Jusrice Mohammad lbmnam Kh Honble Mr. Justic€ Muhammad Nair Maltfooz

accused/Appellant was apprehended, the time was 09:30 AM, meaning thereby that the exact time of arrest is still a mystery.

12.Since accused/Appellant has already been released on bail by this Court within the meaning of Section 426 Cr.P.C on 19.12.2016, therefore his sureties are also discharged from the liability of bail bonds.

Announce d. I ,)- Dt. 14.02.2018 s'-

JUDGE

I24

tuiTs

qY u 0)- Irs ft /t (

Nr$ab rD B ) Honble M' J,sr(e Mohammad lbrahrm Khan Hon'ble M, Jusrrce Muhamrnad Na$r Mah'ooz