MUHAMMAD UMAR vs THE STATE
This criminal appeal challenges the conviction and sentence of the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997, for the alleged possession of five kilograms of Charas. The Peshawar High Court examined the evidence and identified substantial doubts regarding the prosecution's case, primarily because the police official who allegedly recovered and searched the bag was abandoned as a witness, rendering the recovery doubtful in the presence of senior police officers. Furthermore, the bag contained personal belongings bearing the name of a third party, and no effort was made to connect those items to the appellant. Consequently, the court extended the benefit of the doubt to the appellant, set aside his conviction and sentence, and acquitted him of the charge. The court also withdrew its suo motu notice for the enhancement of the sentence.
- Does the abandonment of the material witness who conducted the search create a fatal doubt in a narcotics case?
- Whether an accused is entitled to an acquittal when personal belongings recovered from the alleged contraband bag are not connected to him?
- Can the benefit of doubt be extended when recovery is doubtful in the presence of senior police officers?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 382-B, Code of Criminal Procedure 1898
' TARIQ PARVEZ KHAN, C.J.--- Charge against the appellant is that he was found in possession of 5 Kgs. Of Charas. According to the report made by Munawar Khan, S.-I. Of Railway Police on 26-4- 2004, he along with other police including Narcotics and Special Branch staff were present on the plateform of Railway Station Peshawar Cantt. When in the meanwhile present appellant was sighted allegedly holding handbag which was searched by Zaheer Ahmad, H.C. And has recovered from therein besides personal belongings 5 Kgs. Of Charas (Gardha).
2. Appellant was tried and stands convicted by learned Additional Sessions Judge-VIII Peshawar under section 9(c), C.N.S.A. To 10 years R.I. With a fine of Rs,10,000 and in default of payment. Of such fine to suffer further 6 months' S.I. With benefit of section 382-B, Cr.P.C.
3. When the appeal was taken up on 19-7-2005 and before we had gone in reading of evidence but because of quantity recovered, we found that it was not comparable with the sentence awarded, therefore, suo motu notice was given to the appellant as to why his sentence should not be enhanced.
4. Our this judgment shall dispose of Criminal Appeal bearing No,340 of 2005 filed by Muhammad Umar appellant and suo motu revision given by this Court.
5. After hearing learned counsel for the appellant as well as learned Deputy Attorney-General and after we have read the entire evidence, there are two very crucial points which have created substantial doubt in the case.
' It is in the Murasila as well as in the statement of Munawar Khan, S.-I. And Adil Khan, A.S.-I. That the bag was taken by Zaheer Ahmad, H.C. And also searched by him. Zaheer Ahmad has been abandoned for no reason.
' Where if high ranking Police Officers were present including Munawar Khan (P.W.2) and Adil Khan (P.W.3), we fail to understand as to why Zaheer Ahmad, H.C. Has taken the bag from the accused- appellant and as to why he has searched it.
' Seen in the light of statement of Adil Khan (P.W.3) who stated that the S.H.O. Generally sits in the Reporting Room and search is made by the constable, and that S.H.O. Comes to the plateform just before departure of the train, it shall be presumed that in absence of production of Zaheer Ahmad, H.C., that recovery was not made in presence of Munawar Khan, S.H.O. (P.W.2).
6. Second alarming aspect is that both the above named witnesses admitted that the bag allegedly recovered from the appellant carrying thereon the name of one Zubair resident of Hangu with a telephone number. Possibility cannot be ruled out that it was the bag belonging to said Zubair, would leave it either unattended or escaped with connivance of Zubair constable. It has come in evidence that certain personal belongings were recovered from the bag but none of such belongings have been connected with the appellant e.g., there were used pairs of clothes, they could have been tested that if they were of the size of appellant or otherwise.
7. We, therefore, extend the benefit of doubt to the appellant. His conviction and sentence are set aside and he is acquitted of the charge. He be set free from jail forthwith, if not required in any other case.
' Because of acquittal of the appellant in the main appeal, we withdraw our suo motu criminal revision.