2024 P Cr. L J 1660
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
MUHAMMAD ANEES and another ----Appellants
Versus
The STATE---- Respondent
Criminal Appeal No. 56 of 2023, decided on 28th August, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substances ---Appreciation of evidence ---Conscious
possession of the narcotics by the accused persons not proved--- Prosecution case was that
800 grams Ice and 450 grams charas were recovered from the possession of the accused
persons ---According to the prosecution case, the alleged recovery of contraband was affected
from the house ---Witnesses in their depositions had admitted the fact that besides the
accused persons, other persons were also residing in the said house, but there was nothing on record showing that the house from which recovery was effected was owned or in possession of the accused persons ---No query was either made from the neighbors or from the revenue
authority--- Prosecution had failed to produce any single document showing that the accused
persons were either owners or in possession of the said house ---Thus, the prosecution had
failed to prove the ownership or occupation of the accused persons in respect of the house from which the contraband was allegedly recovered---Furthermore, recovery of contraband from the house could not ipso facto be proof of guilt of the accused unless conscious possession and ownership of the accused were proved through confidence -inspiring
evidence, which was lacking in this case--- Mere presence of the accused persons on the spot
would not be sufficient to connect them with the alleged narcotic substances, particularly when the prosecution had not even alleged a single word about conscious possession of the narcotics by the accused persons ---Appeal against conviction was allowed, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of narcotic substances ---Appreciation of evidence ---Mode and
manners of the alleged recovery of narcotic substances ---Prosecution case was that 800
grams Ice and 450 grams charas were recovered from the possession of the accused persons --
-Venue of occurrence was a dwelling house ---According to the prosecution story, when they
reached the residential room of the said house, a shopper was lying on the ground, and when the accused persons saw the Police Officials, they tried to hide the same in the bathroom ---
None of the witnesses stated a single word in their statements to the effect that which one of the accused persons tried hiding the shopper in the bathroom ---When allegedly a small
quantity of contraband was lying in the shopper, how could two persons have taken the shopper together and allegedly hid the same in the bathroom ---Said aspect of the matter
could not be ignored, and the same suggested that the occurrence had not taken place in the mode and manner narrated in the FIR and deposed by the prosecution witnesses before the Court ---Moreover, it was mala fide on the part of the police to book both the brothers in the
instant case and to show the recovery to have been jointly affected from both the accused persons ---Appeal against conviction was allowed, in circumstances.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic
substances ---Appreciation of evidence ---Non -association of private witnesses at the time of
recovery and arrest ---Consequential ---Prosecution case was that 800 grams Ice and 450
grams charas were recovered from the possession of the accused persons ---According to the
prosecution version, the police directly entered in the residential room of the accused persons, where they were sitting, and a shopper was lying in front of the m---Meaning
thereby, that neither any member of the house of the accused was associated with recovery
proceedings nor was any permission obtained from the owner of the house before entering
into the house, and only Police Officials, who were subordinates to the complainant, were made as mashirs of arrest and recovery proceedings ---Judicial approach had to be conscious
in dealing with cases in which entire testimony hinged upon the evidence of Police Officials alone ---Provisions of S.103, Cr.P.C., are not attracted to the cases of personal search of
accused in narcotic cases, but where the alleged recovery was made from a residential house
(as had happened in this case), and the people were available there, omission to secure
independent mashirs, particularly, in police case could not be brushed aside lightly by the Court ---No explanation was on record as to why no independent person from the vicinity had
been joined to witness the recovery proceedings ---Appeal against conviction was allowed, in
circumstances.
(d) Criminal Procedure Code (V of 1898) ---
----S. 103 ---Association of private witnesses at the time of recovery and arrest ---Object and
purpose ---Prime object of S.103 Cr.P.C is to ensure transparency and fairness on the part of
police during the course of recovery; to curb false implication and minimize the scope of foisting of fake recovery upon the accused.
(e) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substances ---Appreciation of evidence ---Police witnesses,
evidence of ---Scope ---Prosecution case was that 800 grams Ice and 450 grams charas were
recovered from the possession of the accused persons ---No doubt police witnesses are as
good as other independent witnesses, and conviction can be recorded on their evidence, but
their testimony should be reliable, dependable, trustworthy, and confidence worthy---If such qualities are missing in their evidence, no conviction can be passed on the basis of evidence of police witnesses ---Number of contradictions between the evidence of prosecution
witnesses were noticed, which could not be easily brushed aside ---Conduct of the police
showed that the investigation had been carried out in a casual and stereotypical manner without making an effort to discover the actual facts/truth ---Appeal against conviction was
allowed, in circumstances.
(f) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 9(c), 20 & 21--- Possession of narcotic substances ---Appreciation of evidence---Non -
obtaining of search warrant ---Prosecution case was that 800 grams Ice and 450 grams charas
were recovered from the possession of the accused persons ---Venue of occurrence was a
dwelling house of the accused persons and their families ---Station House Officer had prior
information, which he considered credible thus, when he was going to search a residential house,
he was required to have obtained a search warrant from t he Judge, Special Court, as required
under S.20 of the Control of Narcotic Substances Act, 1997, because by then, he had ample
opportunity to obtain the search warrant ---Section 20 of the Act is directory in nature and in
cases requiring quick action so that the narcotics are not removed or the culprits do not escape, obtaining of search warrant will not be necessary, but keeping in view the language of the provision of S.21, the Investigating Officer making the seizure must form a definite opinion that the obtaining of search warrant will consume such a time which will afford an opportunity
to the accused to conceal or destroy the evidence/the contraband or otherwise will enable him to escape---Again subsection (2) of the S.20 has placed a legal burden on Investigating Officer to record reasons and grounds for making such an opinion and to send a copy to his superior Officer ---Law -makers on the one hand have provided a facility/opportunity to the agency
dealing with crimes of narcotics to search any building , vessel, vehicle, or enclosure without a
search warrant, which is a clear departure from the settled principle of law but at the same time, have provided a check and balance system by enacting S.21 of the Act so that the traditional chicanery and foul play committed by such agencies are brought under control by check and balance system, and in that way, the officer conducting a raid on the residential building has no free hand to act on his whims and choice ---Whenever Investigating Officer
departs from the established procedure provided by the ordinary law, he is essentially required
to provide reasons and grounds for such action in writing either in the FIR itself or in the case diary ---In the instant case, there was a clear omission on the part of Investigating Officer in
such regard for which no plausible explanation had come forth on record--- In the case of a
residential house, unless a serious emergency is shown and recorded by the Raiding Officer in
his notes/case diaries as required by the law, he will not be acting within the parameters and
safeguards provided by the provision of S.21 of the said Act; therefore, in the present case, a meager quantity of narcotics was recovered from a residential house without obtaining a search warrant from the Court, which, in the circumstances of the case, could have been conveniently obtained---Irregularity committed was of a nature to create very grave doubts about the
honesty and credibility of the entire investigation---Circumstances established that the
prosecution had failed to prove its case against the accused ---Appeal against conviction was
accordingly allowed.
PLD 2008 SC 376 rel.
(g) Criminal trial ---
----Benefit of doubt ---Principle ---If there is a single circumstance, which creates reasonable
doubt in a prudent mind about the guilt of the accused then the accused will be entitled to its
benefit not as a matter of grace and concession but as a matter of right.
Miss Jameela Kakar Panezai for Appellant.
Abdul Mateen, DPG for the State.
Date of hearing: 1st August, 2023.
JUDGMENT
ROZI KHAN BARRECH, J .---This criminal appeal is directed against the judgment
dated 21.01.2023 (hereinafter "the impugned judgment") passed by the learned Special Judge CNS/Additional Sessions Judge -I, Hub ("trial court") whereby the appellants Muhammad
Anees and Muhammad Sameer, both sons of Muhammad Hanif have been convicted under section 9 -c of the Narcotics Substances Act, 1997 (hereinafter "the Act") and sentenced in
the following manner:
"24……therefore, the accused persons Muhammad Anees and Muhammad Sameer both sons of Muhammad Hanif, by caste Baloch, Residents of Gulshan Ameer Abad, Hub are convicted under section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer for keeping "800 grams Ice" as R.I Seven (07) Years and fine of Rs.50,000/ - (Rupees Fifty thousand) each and in case of default in payment thereof
the convicts further undergo S.I for Six (06) Months while for keeping "450 grams Charas" both the convicts further undergo as "R.I One (01) Year with fine of Rs.10,000/ - (Rupees Ten thousand) each and in case of default in payment thereof the
convicts further undergo S.I for 25 days. The benefit of Section 382- B Cr.P.C is also
extended in favour of convicts…. "
2. Brief facts of the case are that on 24.05.2022 at 6:50 pm, a police party headed by
SI/SHO Attaullah of PS City Hub, while patrolling different places, received spy information that two brothers were doing the business of drugs in a house situated at Ameer Abad Hub. On the said information, the complainant, along with other police officials, reached the house of the accused persons in a room, and an orange color shopping bag was lying in front of them. They attempted to hide the same in an attached bathroom but were apprehended. The said shopper was checked, which resulted in the recovery of 800 grams of Ice and 450 grams of charas. The accused persons disclosed their names as Muhammad Anees and Muhammad Sameer, both sons of Muhammad Hanif. Hence, the crime report.
3. On completion of the usual investigation, the case was put up in court, indicting the
appellants for commissioning the offence to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case, produced and examined four witnesses in all, whereafter the statement of the appellants were recorded under section 342 Cr.P.C, wherein they professed their innocence. The appellants opted not to record their statements on oath under section 340 (2) Cr.P.C; nor produced any witnesses in their defense.
4. The trial court, after the conclusion of the trial, found the appellants guilty of the
charge and, while recording their conviction, sentenced them as mentioned above, which
they have impugned through the instant appeal.
Arguments heard, and the record has been gone through.
5. On reassessment of the entire evidence produced by the prosecution, we are of the
view that the prosecution has not proved the case against the appellants beyond a reasonable
doubt by producing reliable, trustworthy, and confidence -inspiring evidence. There are
contradictions in the statements of the prosecution witnesses, which cannot be lightly ignored. For disbelieving the statements of witnesses, there did not need to be numerous infirmities. If there was one, which could impeach a witness's credibility, then the witness's statement lost its credibility.
6. We have noticed major contradictions in the evidence of the prosecution witnesses,
which cut the roots of the prosecution case and make it doubtful, the contradictions in the
evidence of prosecution witnesses are as under: -
a) PW- 2 Faraz Ali, Head Constable stated in his cross -examination that the house
door was toward the eastern side.
b) PW -2 Muhammad Karim SI, deposed in his cross -examination that the door of the
house opened toward the southern side.
c) PW- 2 stated during cross -examination that the house of the accused consists of
four rooms, two rooms on the ground floor and two on the first floor.
d) PW -4 deposed in cross -examination that there was one room on the first floor,
whereas he does not remember the rooms on the ground floor.
e) PW- 2 stated in cross -examination that SI Muhammad Karim weighed the recovered
contraband.
f) PW -4 deposed in his cross -examination that SI Attaullah weighed the recovered
contraband.
g) PW -2 stated in his cross -examination that they proceeded to the police station at
8:30/8:45 pm.
h) PW -4 stated during cross -examination that they reached the police station at 9:40
pm.
The above material contradictions in the statements of the PWs further make the case
of the prosecution doubtful.
7. According to the prosecution case, the alleged recovery of contraband was affected
from the house; PWs in their depositions have admitted the fact that besides the appellants,
other persons were also residing in the said house, but there is nothing on record showing that the house from which recovery was effected was owned or in possession of the appellants. No query was either made from the neighbors or from the revenue authority. The prosecution has failed to produce any single document showing that the appellants were either owners or in possession of the said house. Thus, the prosecution has failed to prove the ownership or occupation of the appellants in respect of the house from which the contraband was allegedly recovered. Furthermore, recovery of contraband from the house cannot ipso facto be proof of guilt of the accused unless conscious possession and ownership of the accused are proved through confidence -inspiring evidence, which is lacking.
8. Mere presence of the appellants on the spot would not be sufficient to connect them
with the alleged narcotic substances, particularly when the prosecution has not even alleged a single word about conscious possession of the narcotics by the appellants. The prosecution has failed to establish that the appellants were found in conscious and intelligent possession of the contrabands beyond a reasonable doubt. In fact, the prosecution has to prove two elements of possession, i.e. (i) corpus, the element of physical control, and (ii) animus or intent with which such control is exercised, but such ingredients have not been proved.
9. The venue of occurrence was a dwelling house. According to the prosecution story,
when they reached the residential room of the said house, a shopper was lying on the ground, and when the appellants saw the police officials, they tried to hide the same in the bathroom.
None of the witnesses stated a single word in their statements to the effect that which one of
the appellants was hiding the shopper in the bathroom. It is worthwhile to mention here that when allegedly a small quantity of contraband was lying in the shopper, how could two persons have taken the shopper together and allegedly tried to hide the same in the bathroom? This aspect of the matter could not be ignored, and the same suggests that the
occurrence had not taken place in the mode and manner narrated in the FIR and deposed by
the prosecution witnesses before the court. It was mala fide on the part of the police to book
both the brother in the instant case and to show the recovery to have been jointly affected from both the appellants.
10. According to the prosecution version, the police directly entered in the residential
room of the appellants, where they were sitting, and a shopper was lying in front of them. Meaning thereby, that neither any member of the house of the accused was associated with recovery proceedings nor was any permission obtained from the owner of the house before entering into the house, and only the police officials who are subordinates to the complainant were made as mashirs of arrest and recovery proceedings. It is a settled principle that the judicial approach has to be conscious in dealing with cases in which entire testimony hinges upon the evidence of police officials alone.
11. We are conscious of the fact that provisions of section 103, Cr.P.C. are not attracted
to the cases of personal search of accused in narcotic cases, but where the alleged recovery was made from a residential house (as has happened in this case), and the people were available there, omission to secure independent mashirs, particularly, in police case cannot be brushed aside lightly by this court. The prime object of Section 103 Cr.P.C is to ensure transparency and fairness on the part of police during the course of recovery, curb false
implication and minimize the scope of foisting of fake recovery upon the accused. There is also no explanation on record why no independent person from the vicinity has been joined to witness the recovery proceedings. No doubt police witnesses were as good as other independent witnesses, and conviction could be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy, and confidence worthy, and if such qualities were missing in their evidence, no conviction could be passed on the basis of evidence of police witnesses. But here, in this case, we have also noted a number of contradictions between the evidence of prosecution witnesses, which cannot be easily brushed aside. The above conduct of the police shows that the investigation has been carried out in a casual and stereotypical manner without making an effort to discover the actual facts/truth.
12. The venue of occurrence was a dwelling house of the appellants and their families.
The SHO had prior information, which he considered credible thus, when he was going to search a residential house, he was required to have obtained a search warrant from the Judge, Special Court, as required under section 20 of the Act because by then, he had ample opportunity to obtain the search warrant. It is correct that section 20 of the Act, as held by the apex Court, is directory in nature, and in cases requiring quick action so that the narcotics are neither removed nor the culprits to escape, obtaining of search warrant would not be necessary but keeping in view the language of the provision of section 21, the I.O. making the seizure must form a definite opinion that the obtaining of search warrant would consume such a time which would afford an opportunity to the accused to conceal or destroy the evidence/the contraband or otherwise would enable him to escape. Again subsection (2) of the said provision has placed a legal burden on him to record reasons and grounds for making such an opinion and to send a copy to his superior Officer. The law -makers on the one hand,
have provided a facility/opportunity to the agency dealing with crimes of narcotics to search any building, vessel, vehicle, or enclosure without a search warrant, which is a clear departure from the settled principle of law but at the same time, has provided a check and balance system by enacting section 21 of the Act so that the traditional chicanery and foul
play committed by such agencies are brought under control by check and balance system,
and in this way, the officer conducting a raid on the residential building has no free hand to act on his whims and choice. Whenever he departs from the established procedure provided by the ordinary law, he is essentially required to provide reasons and grounds for such action in writing either in the FIR itself or in the case diary. In the instant case, there is a clear omission on the part of I. O. for which no plausible explanation has come forth on record.
13. We are mindful of the adverse impact and effects on society of the drug (narcotics)
business being on the rise alarmingly. The Legislature has rightly felt persuaded to make a
departure on the point of search of a building etc., by the I.Os. without a search warrant to be obtained, but at the same time, the sanctity of a residential house cannot be lightly compromised on the ground of such necessity. In the case of a residential house, unless a serious emergency is shown and recorded by the raiding officer in his notes/case diaries as
required by the law, he would not be acting within the parameters and safeguards provided
by the provision of section 21 of the said Act; therefore, we are of the view that as in the
instant case, a meager quantity of narcotics was recovered from a residential house without obtaining a search warrant from the Court, which in the circumstances of the case could have been conveniently obtained, the irregularity committed is of a nature if not sufficient to vitiate the trial, would create very grave doubts about the honesty and credibility of the entire investigations.
14. In the judgment of the Hon'ble Supreme Court of Pakistan reported in PLD 2008 SC
376, it was held that the provisions of section 25 or sections 20 to 21 of the Act do not, as such, permit violation of the Constitutional guarantee of privacy and dignity of a man and public functionaries are obliged to strictly follow the law and observe the privacy of the houses of Citizens failing which they can be proceeded against both for criminal trespass and
damages also, in their individual capacity. The purpose of a search warrant is to maintain the
privacy of the house, thereby restricting entry to it without due process of law or permission
of inmates.
In this particular case, not obtaining the search warrant of the house was in sheer
violation of fundamental rights envisaged under Article 14 of the Constitution of Islamic
Republic of Pakistan, 1973.
15. In our considered view, the prosecution has failed to prove the charge against the
appellants beyond any shadow of a doubt. There are several circumstances which create
doubt in the prosecution case. It is well -settled law that it is not necessary that there should
be many circumstances creating doubts. If there is a single circumstance, which creates
reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
For the aforementioned reasons, we have no hesitation to hold that the prosecution
has miserably failed to prove its case against the appellants/accused. Resultantly, by our short order dated 01.08.2023, the conviction and sentence recorded by the trial court vide judgment dated 21.01.2023 passed by the learned Special Judge CNS/Additional Sessions Judge -I was set aside, and the appeal was allowed. Appellants Muhammad Anees and
Muhammad Sameer, both sons of Muhammad Hanif, were acquitted of the charge.
The above discussion shall constitute the reasons for our short order dated
01.08.2023, announced earlier in open court.
JK/63/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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