Qadar Khan vs Political Agent/District Magistrate Agency and 2 others
This criminal revision petition was filed against the judgments of the Political Agent/District Magistrate Kurram and the Commissioner FCR Kohat Division, whereby the petitioner was convicted under Sections 6, 7, 8, and 9(C) of the Control of Narcotic Substances Act read with Section 11 of the Frontier Crimes Regulation, and sentenced to 25 years rigorous imprisonment for the recovery of hashish. The core legal question was whether a conviction for narcotics offences can be sustained without a Forensic Science Laboratory report or chemical examiner's opinion on the recovered contraband, and where conscious knowledge and ownership of the premises are not established. The Peshawar High Court held that the prosecution must bring on record the FSL report as required by the law, and in the absence of such a report and proof of conscious knowledge, the conviction cannot be sustained. The court laid down the principle that procedural and substantive evidentiary requirements, such as chemical examiner reports under the Control of Narcotic Substances Act, remain mandatory even for occurrences in tribal areas, and convictions cannot be based on mere assertions.
- Can a conviction under the Control of Narcotic Substances Act be sustained without a Forensic Science Laboratory report?
- Is the requirement of an FSL report applicable to narcotics cases originating in tribal areas under the Frontier Crimes Regulation?
- Does the mere assertion of an individual suffice to prove that recovered material is contraband without chemical examination?
- Must the prosecution establish conscious knowledge and ownership in narcotics recovery cases from a house?
- Section 55-AA, Frontier Crimes Regulation 1901
- Section 11, Frontier Crimes Regulation 1901
- Section 6, Control of Narcotic Substances Act 1997
- Section 7, Control of Narcotic Substances Act 1997
- Section 8, Control of Narcotic Substances Act 1997
- Section 9(C), Control of Narcotic Substances Act 1997
- Section 34, Control of Narcotic Substances Act 1997
- Section 35, Control of Narcotic Substances Act 1997
- Section 36, Control of Narcotic Substances Act 1997
ISHTIAQ IBRAHIM, J.--This criminal revision petition under Section 55-AA of Frontier Crimes Regulation (Regulation III of 1901) as amended in 2011 filed by petitioner Qadar Khan against the order/judgment dated 13.04.2017 of learned Political Agent/District Magistrate Kurram, whereby , the petitioner was convicted under Sections 6, 7, 8, 9 (C) of narcotics Substances Act, read with 11 FCR and sentenced to undergo 25 years R.I and against the order dated 27.07.2017 of the Commissioner , FCR Kohat Division Kohat, whereby , the appeal filed by the appellant/convict was also dismissed.
2. Brief facts of the case are that FC personnel arrested accused Qadar Khan on 15.06.2016 and recovered 495 kgs Hashish alongwith 492 kgs seed of Hashish from the house of the accused. The accused was then handed over to the Political Administration Kurram Agency for proceedings and accordingly a Jirga was constituted under Section 11 FCR. To prove charge against the accused a Jirga was constituted. The Jirga members carried out investigation and recommended the accused to be punished as per law vide award at P-26 of case file. The award of the Jirga members was accepted and order was passed by PA/DM Kurram Agency on 13.04.2017 by convicting the accused. Being aggrieved, accused/appellant preferred appeal before the Commissioner , FCR Kohat Division Kohat which was also dismissed vide order dated 27.07.2017 by the Commissioner , FCR Kohat Division Kohat.
Being aggrieved the petitioner/convict filed the instant criminal revision before this Court.
3. Arguments of learned counsel for the petitioner and learned AAG heard; and record perused.
4. Record shows that alleged samples of contraband were not sent to the FSL to get proper opinion of the expert.
Control of Narcotic Substances Act was extended to the FATA and law is very much applicable there. Political Agent has got the power to proceed with the case but it is the duty of the prosecution to bring on record the FSL report of the alleged contraband notwithstanding the fact that whether the occurrence has taken place in settled area or in tribal area. Report of the FSL as provided under Sections 34, 35 and 36 of the Control of Narcotics Substances Act, 1997, is not available on the record to fortify the charge against the petitioner/convict that the alleged stuff which was recovered from the house in question was infact chars or otherwise. In absence of the report of the Chemical examiner convictio n cannot be based on mere assertion of individual that the recovered stuff was contraband. FSL report is important as any provision of this act which cannot be ignored only for the reason that the occurrence has taken place in tribal territory . In absence of the report of the chemical examiner with regard to the alleged contraband, case of the prosecution stands nowhere and the conviction and sentences awarded to the petitioner/convict is nullity in the eyes of law .
5. Moreover , the alleged recovery was effected from the house situated in Ghunza Alisherzai area but nothing is available on the record that the same belongs to the petitioner , rather on the contrary it is on the record that it is ownership of someone else. Conscious knowledge of the appellant has also not been duly established by the prosecution. The investigation Officer and the recovery officer are duty bound to follow the rest of provisions of CNSA with the regard to the investigation and samples.
6. For what has been discussed above, we hold that the impugned order/judgment dated 13.04.2017 of Political Agent/District Magistrate, Kurram Agenc y and order/judgment dated 27.07.2017 of Commissioner , FCR Kohat Division Kohat, is illegal and against the law, therefore, the impugned orders/judgments warrants interference. As such, this criminal revision is allowed and the petitioner is acquitted of the charge. He be set free forthwith, if not required any other case.