' SALIM KHAN, J.---Akhtar-ulIslam accused-appellant, along with his brother; Qamar-ul-Islam, was charged under section 9, CNSA, vide F.I.R. No,469 dated 6-6-2004 of Police Station, City Mansehra for recovery of 3 kilograms charas and 105 bottles of alcoholic liquor. The learned trial Court, as a result of the proceedings of trial, decided that the liquor was not listed as contraband article under the Control of Narcotic Substances Act, and therefore, did not decide the case against the accused for the purposes of liquor. He, however, vide his judgment dated 23-6-2005, acquitted Qamar-ul- Islam accused by extending benefit of doubt to him, while convicted Akhtar-ul-Islam accused- appellant under section 9(c), CNSA and sentenced him to rigorous imprisonment for five years with fine of Rs,30,000 or in default of payment of fine to undergo simple imprisonment for one year.
2. We heard the arguments and perused the record.
3. Aslam Parvez, A.S.-I., stated that he was on routine "Gusht" when Rasool Shah informed him that he had the information that the accused were selling contraband articles in their Baithak and a raid would be conducted, that Rasool Shah came to him at Bazar with only one police constable, wherefrom Aslam Parvez and Rasool Shah along with the constables went to the house of the accused on the official vehicle which was in possession of Aslam Parvez A.S.-I. Rasool Shah while appearing as P.W., stated that Aslam Parvez was sitting with him on the front seat of the official vehicle under the custody of Rasool Shah, when the informer gave information to him regarding the selling of contraband by the accused. He thus contradicted the version of Aslam Parvez to this extent. He further stated that the police officials including Aslam Parvez were already present with him when he was on "Gusht" of the area and this statement contradicted the statement of Aslam Parvez regarding the availability of other police officials and Aslam Parvez, A.S.-I. Rasool Shah further stated, that he had an official vehicle driven by an official driver in which Aslam Parvez was available with him. This contradicted the statement of Aslam Parvez regarding the vehicle in his possession and their going to the scene of occurrence in the vehicle of Aslam Parvez.
4. Aslam Parvez stated that the cupboard, from which the contraband Charas was allegedly recovered, was in the front wall of the door of the Baithak. This suggestion, when made to Rasool Shah, was flatly denied by him and he stated that the cupboard was on the southern side wall of the Baithak. Aslam Parvez stated that Akhtar-ul-Islam not only pointed to the cupboard, but physically took out the charas from the cupboard and handed over the same to Rasool Shah, while Rasool Shah by himself stated that the Charas was taken out by him from the cupboard, which contradicted the statement of Aslam Parvez regarding recovery of the charas.
5. Aslam Parvez stated that the recovery memo. Was not in his writing and was in the writing of Rasool Shah. On the other hand, Rasool Shah stated that the recovery memo. Was not in his handwriting and was in the writing of Aslam Parvez. Both of them disowned the recovery memo.
Which was the basis of the whole case, even if it was considered, that the Charas was recovered from the cupboard. Rasool Shah did not affix his seals to the parcels because the same were not available with him, although he had an investigation bag which allegedly contained the scale and the weighing bots. The seals of Aslam Parvez were affixed to the parcels.
6. Neither a search warrant was obtained nor a lady constable was taken to the house of the accused for the purposes of raid. It is true that the provisions of section 103, Cr.P.C. Are not applicable to the cases conducted under the Control of Narcotic Substances Act, 1997 in the light of section 25 thereof, and the provisions of sections 20 and 21 of CNSA are directory in nature and their non-compliance is not fatal to the prosecution case. But, directory provisions of law are framed to provide guidance to the vigilant and efficient officials. It has never been the intention of the legislature to frame directory provisions of law and expect the careless, ignorant or inefficient officials to unnecessarily ignore the same. It was not expected in the circumstances of this case that the accused would run away from their house at the night time, if the Investigating Officer had tried to obtain a search warrant, as there would be no source of information to them generally regarding obtaining of search warrant. In emergency cases, the taking of search warrant and the taking of a lady constable to a house can be ignored, but, keeping in view the fundamental right of citizen regarding family, such extraordinary concession can be given only in very extraordinary circumstances, which are not available in this case.
7. Only one doubt in a criminal case, what to say more than one, like in this case, has always been considered enough for giving benefit to the accused. In this case, neither the circumstances and proceedings before the recovery nor of the time of recovery nor the fact of recovery and recovery memo. Have been proved, rather, have been contradicted by the two star witnesses of the prosecution themselves. The benefit of each doubt is given to the accused-appellant in this case.
8. We have come to the conclusion that the learned trial Court has erred in coming to the conclusion as in the present case. Regarding Akhtar-.Ul-Islam, accused. We, therefore, set aside the said judgment and the order thereunder on accepting this appeal and acquit the accused- appellant of the charges levelled against him. The accused-appellant be set free for the purposes of this case, if he is not required in custody in any other case.