THE STATE (A.N.F.) through Special Prosecutor vs PEDAN BAIG
This criminal appeal was filed by the State (Anti-Narcotics Force) against an acquittal order passed by the Additional Sessions Judge, Ghizer, in a narcotics case. The respondent was charged with possessing 1200 grams of opium in a public bazaar. The core legal question was whether the prosecution had sufficiently proven the recovery of narcotics, particularly given the failure to associate independent witnesses during the search. The Court held that the prosecution's failure to involve any witnesses from the locality, despite the search occurring in a busy public bazaar, violated the mandatory requirements of law. The Court emphasized that when a search is conducted in a public place where independent witnesses are available, the failure to associate them casts significant doubt on the recovery proceedings. Consequently, the Court upheld the acquittal, finding that the prosecution failed to prove its case beyond a reasonable doubt. The key principle laid down is that recovery proceedings conducted in public places without independent witnesses, when such witnesses are available, are inherently doubtful and violate the procedural safeguards intended to ensure transparency and fairness in criminal investigations.
- Does the failure to associate independent witnesses during a search in a public place violate Section 103 of the Code of Criminal Procedure 1898?
- Can a conviction be sustained when the recovery of narcotics is witnessed only by police officials despite the presence of the general public at the scene?
- Is an acquittal order liable to be set aside if the prosecution fails to produce independent witnesses from the locality during a search?
- Section 3, Prohibition (Enforcement of Hadd) Order 1979
- Section 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 103, Code of Criminal Procedure 1898
1. ' SAHIB KHAN, J.--- Seeking conviction to respondent/accused, the State (Anti-Narcotics Force) through instant Criminal Appeal No,10 of 2005, impugned the judgment/order, dated 22-6-2005, passed by Additional Sessions Judge Ghizer, in Session Case No,10 of 2001, whereby, the learned trial Judge has acquitted the respondent/ accused.
2. ' The briefly narrated facts of the prosecution case are that Himmat Shah, Head Constable of Anti- Narcotics Force, informed telephonically from Gahkuch to Sub-Inspector/S.H.O. A.N.F. Gilgit Amir Humza at 6-45 a.m. On 12-12-1999 alleging that one Pedan Baig son of Rahim Baig of Ayashi Village, District Ghizer having huge quantity of opium is wandering in Gahkuch Bazar in search of customer to sell the opium. Receiving above information Investigating Officer/ S.H.O. (Amir Humza) left for Gahkuch accompanied by Javed Iqbal, Head Constable and Khushfraz driver, in official vehicle (number applied for). They reached Gahkuch Bazar at 9-00 hours on the same day and date and they found the suspected Pedan Baig near Shandoor Hotel at Gahkuch Bazar. Amir Humza Investigating Officer/S.H.O. Conducted body search of the accused in presence of Himmat Shah, Head Constable and Khushfraz, driver of the same department. They found a bag carried by the accused in hand bearing opium covered with papers. The Investigating Officer weighed the opium weighing 1200 grams. He separated 20 grams of opium for chemical examination. He sealed both the separate parcels of opium with the mark of A.H. He further prepared recovery memo. In the presence of P. Ws. And obtained their signatures on the recovery memo.
3. ' According to contents of F.I.R. No,22 of 1999, the time of occurrence has been shown 0900 hours on the same date whereas, complainant Amir Humza with the designation of Sub-Inspector/ S.H.O.
4. Who has charged the accused under sections 3/4 of Prohibition Ordinance, 1979 is shown in column No,2 of F.I.R. Challan of the case was submitted to Additional Sessions Judge, Ghizer, for trial of the case.
5. ' Accused was charge-sheeted on 13-5-2004, who did not plead guilty and claimed trial.
6. Prosecution in support of his version produced 4 P.Ws. As oral evidence and Exhs.P.W.1/A, P.W.3/A to C and the report of Chemical Examiner Exh.P.1. As documentary evidence. The learned trial Judge after conclusion of the trial acquitted the respondent/accused from the charges giving him benefit of doubt. Anti-Narcotics Force being aggrieved from the said acquittal order has filed the instant appeal seeking conviction of respondent/accused as stated above.
7. ' We have heard the learned counsel in detail, gone through the available record. Guided ourselves from the judgments referred by the counsel for both sides.
8. ' At the very outset of the arguments the learned counsel/ prosecutor of me appellant challenged the validity of trial by Additional Sessions Judge. When his attention was diverted to the schedule given in the Cr.P..C. For "other offence" he, very frankly conceded the competency of trial by Additional Sessions Judge.
9. ' The prosecution version as is given in the F.I.R. And challan of the case is that the raid party headed by Sub-Inspector/S.H.O./ Investigating Officer conducted body search of the accused on 12-12-1999 at 9 a.m. At Gahukuch Bazar near a hotel in an open public place and they were also well informed about having opium by the accused and body search of the accused was to be conducted. The investigating team searched the accused. According to their version Investigating Officer recovered opium in quantity of 1200 grams, prepared recovery memo. Separated 20 grams of opium for chemical examination, sealed both the separate parcels, in the presence of persons involved in the investigation. It has very wisely' been crossed by the defence counsel and P.Ws.
10. Including Investigating Officer have admitted the presence of general public at large near the spot.
11. It is astonishing for us that the Investigating Officer did not bother to involve single P.W. From the locality despite their presence during the whole process of investigation as stated above for any single act done by.The Investigating Officer. Moreover, it has been alleged that the opium was weighed in a shop but prosecution did not feel it proper to produce the shopkeeper as P.W.
12. ' Apparently, all the proceedings, if carried by the raid team/ Investigating Agency in the broad- daylight in the mid of Gahukuch Bazar not in a jungle without involving single witness of the locality, are clearly violative of section 103, Cr.P.C. The proceedings cannot be free from doubt.
13. ' The learned trial Judge has wisely assessed the merits of the case. We do not find any cogent reason to interfere with the orders of acquittal. Although evidentiary value of 'official/police witness nevertheless less, than ordinary witness but in special circumstances.
14. ' Appeal being meritless stands dismissed. We fully agree with the law laid down in series of case- law especially in 1992 SCMR page 1502.