KAMIL ZAMAN vs THE STATE

' ABDUR RAUF KHAN LUGHMANI, J.--- Appellant Kamil 'Zairian was convicted under sectors 9(b) of the Control of Narcotic Substances Act, 1996 and sentenced to suffer 2 years' R.I. And to pay a fine of Rs,3,000 or in default of payment of the fine to further undergo 6 months' S.I. By the learned Judge Special Court, Bannu, vide order, dated 23-4-1998.

2. Shortly narrated, the prosecution case is that on 18-5-1996 at about 14-00 hours Muhammad Iqbal, S.H.O. Police Station Saddar, Bannu along with Habib Khan, A.S.-I., Muhammad Hayat Khan, A.S.-1. And other police constables, on the receipt of information furnished by a spy that Kamil Zaman was busy in the sale of narcotics, proceeded to the fields of Village Shahbaz Azmatkhel, where the said person was successfully apprehended. He was searched and found in possession of a cloth bag which contained Charas and Opium weighing 600 grams and 400 grams respectively. Four grams of Charas and four grams of opium was sealed and separated for chemical analysis. On his personal search Rs,121 were also recovered from him. He prepared the Murasila Exh.P.A./1 and sent it to the police station for registration of case. He also prepared site plan Exh.P.B. Regarding the place of recovery as well as the recovery memo. Exh.P.R. After examining the witnesses he submitted challan on the next day i,e, 19-5-1996.

3. Charge under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 9 of the Control of Narcotics Substances Act were framed against the accused, who did not plead guilty and exercised the right of trial. Habib Khan, A.S.-I. And Muhammad Iqbal Khan, S.H.O. Were examined as P.Ws.1 and 2 respectively. The plea of the appellant, when examined under section 342, Cr.P.C., was that of the bare denial. He claimed innocence and false implication. However, no evidence was called in defiance.

4. Syed Zafar Abbas Zaidi, learned counsel for the appellant, submitted that the search and seizure of the narcotics is not witnessed by two respectables of the locality in spite of the fact that the Investigating Officer claims to have prior information. Thus, the provisions of section 103, Cr.P.C.

Have been flagrantly violated, with the result that the recovery of the narcotics has become highly doubtful and cannot be made basis of conviction. He, further, contended that it has not been proved that the opium as defined by clause (r) of section 2 of Control of Narcotic Substances Act, 1996, has been recovered from the appellant.

5. After going through the record, we find that, admittedly, the Investigating Officer (P.W.2) had prior information that the appellant was busy in the sale of narcotics in the fields of Shahbaz Azmatkhel.

The Investigating Officer should have tried to procure the presence of two respectable persons of the locality so as to ensure reliable search. He admitted, during the cross-examination, that people were present in the adjacent fields at the time of the recovery, from the appellant. The object of associating public witnesses with the recovery process is to obviate possibility of false implication.

The recovery would become unreliable if no public witness is associated, more particularly when they were available and no effort whatsoever was made to manage their presence. The provisions of section 103, Cr.P.C. Are mandatory in nature and if it is not possibly to fulfill the conditions of the said section, the Investigating Officer must account for such non-compliance. If reasons for non- compliance of section 103, Cr.P.C. Are not furnished by the prosecution, such recovery cannot be relied upon. We can refer with advantage to a decision of the Supreme Court of Pakistan in case of The State v. Bashir and others PLD 1997 SC 408 wherein it was held as follows:-- #TE## "It has been repeatedly held that the requirement of section 103, Cr.P.C. Namely, that two members of public of locality should be Mashirs to recovery, is mandatory unless it is shown by prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public ... Where no efforts were made to secure two Mashirs, recoveries may be considered as doubtful."

6. As a result of above discussion, we are of the view that the prosecution has patently failed to prove the recovery of the narcotics. Accordingly, this appeal is accepted, the conviction and sentence recorded by the trial Court is set aside and appellant is acquitted. He shall be released forthwith, if not required in any other case.