KHAN ZAMAN vs THE STATE
This criminal appeal challenges the conviction and sentence recorded by the Additional Sessions Judge, D.I. Khan, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, for the possession of contraband heroin. The core legal questions were whether the prosecution's failure to associate independent witnesses from a populated locality violated mandatory procedural requirements and whether the delay in sending the contraband sample to the Chemical Expert rendered the recovery doubtful. The Peshawar High Court held that the police party violated the mandatory provisions of Section 103 of the Code of Criminal Procedure 1898 by failing to associate independent witnesses despite the occurrence taking place in a thickly populated area. Furthermore, the Court found the prosecution's case weakened by the seven-day delay in dispatching the sample to the Chemical Expert. Consequently, the Court set aside the conviction and acquitted the appellant. The judgment reinforces the principle that strict compliance with search and seizure procedures, particularly the association of independent witnesses and the timely forensic analysis of samples, is essential to sustain a conviction in narcotics cases.
- Does the failure to associate independent witnesses from a populated area during a recovery violate Section 103 of the Code of Criminal Procedure 1898?
- Does a significant delay in sending a contraband sample to the Chemical Expert render the recovery doubtful?
- Is a conviction sustainable when the prosecution fails to comply with mandatory search and seizure procedures?
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 382-B, Code of Criminal Procedure 1898
- Section 103, Code of Criminal Procedure 1898
' The appellant was charged for having committed an offence punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, vide F.I.R. No,378, dated 31-7-1997, lodged in Police Station Cann., D.I. Khan and after the completion of the usual police investigation, he was put on trial. The Additional Sessions Judge, D.I. Khan, at the conclusion of trial, held the appellant guilty and convicted him under Article 4 of the Hadd Order (ibid). He was accordingly, sentenced to two years R.I. Alongwith a fine of Rs,5,000 or in default of payment of fine to further undergo three months S.I.
Benefit of section 382-B, Cr.P.C. Was also extended to him, vide judgment, dated 8-9-1999.
Aggrieved by the said judgment, the appellant has challenged its legality/validity by filing this appeal.
2. Mr. Allah Nawaz, Junior learned counsel for the appellant, and Syed Saeed Hassan Sherazi, learned Assistant Advocate General for the State present and heard. Record of the case perused carefully.
3. The learned counsel for the appellant mainly contended that the prosecution has failed to procure independent persons to witness the recovery though the occurrence allegedly took place in a thickly populated locality. Thus, the provisions of section 103, Cr.P.C. Were not complied with.
Further submitted that the sample of alleged contraband heroin was sent to the Chemical Expert after seven days of the occurrence which makes the alleged recovery doubtful, reliance was placed on "PLD 1997 Lah. 633". Resultantly, the appellant could not be convicted in the circumstances of the case.
4. Admittedly, the scene of occurrence is a thickly populated area and according to Abdul Latif A.S.I.
(P.W.4), he did not call any shopkeeper or any other private person to become witness to the contraband recovered from the possession of the appellant. The police party clearly violated the mandatory provisions of section 103, Cr.P.C., and, therefore, the alleged recovery of contraband heroin had become illegal and could not be made the basis of a conviction. Besides, after alleged recovery, the prosecution has again failed to send the sample extracted from the recovered heroin, immediately and without loss of time as the sample was despatched to the Chemical Expert after seven days of the occurrence. The appellant was accordingly entitled to be acquitted not as matter of grace but as a matter of right in view of the dicta laid down by the apex Court in cases reported as "PLD 1997 SC 408 and "PLD 1997 Lah. 633".
5. Resultantly, this appeal is accepted, the conviction/sentence recorded by the learned Additional Sessions Judges D.I. Khan, dated 8-9-1999, is set aside and the appellant is acquitted. He shall be released forthwith, if not required in any other case.