AURANGZEB J. The appellant/State has filed the instant appeal under section 24 of The KPK Narcotics Substances Act, against the order/judgment of acquittal dated 10.09.2022 passed by the learned Additional Sessions Judge-/Judge Special Court, Havelian, whereby the accused/respondent was acquitted from the charges leveled against him by invoking provision of section 265-K Cr. P.C.
2. Facts of the case in brief are that on 19.07.2021, on general complaint regarding availability of narcotics in the house, the complainant/SHO alongwith police party raided at the house of accused/respondent and recovered 4791 grams of Charas from the corner of a room. Similarly, ICE weighing 625 grams was also recovered. Out of recovered stuffs, samples were separated for FSL.
Accused was arrested, murasila was drafted at the spot, which was later-on reduced into FIR No. 722 dated 19.07.2021 registered under section 9 (d) and 11 (b) of The Khyber khtunkhwa, Control of Narcotics Substances Act and 15 of The Khyber Pakhtunkhwa Arms Act at Police Station, Havelian, Abbottabad.
3. Upon arrest of the accused and after completion of investigation, a separate challan was submitted before the learned trial Court under section 173 Cr. P.C. Formal charge framed against him under sections 9 (d) & (c) of The Khyber Pakhtunkhwa, Control of Narcotics Substances Act, wherein, he did not plead guilty and claimed trial. In order to prove the case against the accused, the learned trial Court asked the prosecution to produce it evidence/witnesses but except PW-1, none other PWs was produced before the Court for recording evidence and as the accused/respondent was in custody from his arrest, hence, having with no option the learned trial issued notice under section 265-K Cr.P.C to the prosecution and when the prosecution failed to produce evidence, the learned trial Court acquitted the accused/respondent vide impugned order and judgment. Feeling aggrieved of the aforesaid judgment of acquittal, the appellant/State has filed the instant appeal before this Court.
4. Arguments of learned AAG appearing on behalf of appellant/State were heard in detail and the record perused with his able assistance.
It is the case of prosecution that it was a prior information with the complainant/SHO that the accused/respondent is a notorious drug seller who has retained huge quantity of narcotics in his house for the sale purpose, however, despite such prior information the complainant did not pay heed to make any test purchase from the accused/respondent, so as to strengthen the prosecution case, which makes the case doubtful.
6. More-over, it is an admitted fact that the complainant/SHO before raiding the house did not obtain the search warrant from the quarter concerned and in the murasila/FIR he has also not mentioned any reason for not obtaining the search warrant. In order to meet the mandatory requirement of law as provided under section 27 of The Khyber Pakhtunkhwa Control of Narcotics Substances Act, he did not bother to approach the concerned Special Court to get warrant of search of the said house. Likewise, he has also not mentioned any valid reason for not obtaining the said warrant of search. In the case[1] it is held that an officer not below the rank of Sub- Inspector, Police, or equivalent authorized in this Behalf by the Federal Government. or Provincial Government in exercise of his power under section 21 of the Control of Narcotic Substances Act, 1997, if is satisfied that a warrant of arrest as provided under section 20 of the Act cannot be obtained, can enter into the premises without a search warrant and make search on the basis of personal knowledge or on receipt of information of commission of an offence mentioned in the above Act, by any person. In the present case, the Excise Inspector on receipt of information went to the house of respondent and made his personal search and then by making house search, recovered Charas from the bed room of the house, without satisfying the requirement of section 21 ibid. The combined study of sections 20 and 21 of the Control of Narcotic Substances Act, 1997 would show that only in exceptional cases in which the search warrant cannot possibly be obtained before conducting the raid, an officer authorized in this behalf can proceed for conduct f raid without the warrant but this power cannot be allowed to be used in every case in the normal circumstances- The Excise Inspector on the information, proceeded to conduct the raid and could conveniently obtain the search warrant from the Court of Special Judge but he havingleAno necessity of such warrant, transgressed the authority of law which would make the search of house illegal. The learned Additional Advocate-General has not been able to convince us that in the facts of the case, the requirement of search warrant could be dispensed with. We having heard the learned Additional Advocate-General have not been able to find the acquittal of the respondent by the High Court, against the interest of criminal administration of justice.
7. Police officials are also good witnesses as compared to the private witnesses, however, as per section 31 of The Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019, before raiding a dwelling house the complainant/ASHO was required to call upon the respectable inhabitants of the locality, however, he also failed to comply with this provision too. The section 31 of the Act is relevant, which, is reproduced as under: Mode of making searches and arrest: The provisions of the Code, except those of section 103, shall mutatis mutandis, apply to all searches and arrests: Provided that section 103 of Code shall, in case of search of dwelling house be strictly observed.
8. Similarly, the prosecution has not annexed the record of the house wherein, the accused/respondent was allegedly found present and recovery as effected, which fact also goes in favor of accused/respondent and makes the place of recovery doubtful.
9. More and important aspect of the case is that the alleged occurrence took place on 19.07.2021 and the sample parcel were taken from the recovered stuff on the same day, which ought to be sent to the laboratory within 72 hours for analysis but surprisingly, it reached at Forensic Science Laboratory with on 27.07.2021, which delay is not explained in anywhere on the record.
10. It is settled since long that even a single doubt or single circumstance which creates doubt in the mind of a prudent man is sufficient for the acquittal of an accused person. In the case[2] the Hon'ble Apex Court has held that for the accused to be afforded the right of benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. Similarly, in the case[3] the Hon'ble Apex Court has held that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. Likewise, in the case[4]the Hon'ble Apex Court has held that Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence and any doubt arising in prosecution's case is to be resolved in favour of the accused. In the case[5] the Hon'ble Apex Court has reiterated the same rational by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be .given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Reliance could also be made on the judgments[6] of apex Court.
10. It is settled law that before the trial an accused is presumed to be innocent unless proven guilty and once an accused .succeeds to earn an acquittal order then double presumption is attached to his innocence and as such while hearing an appeal against acquittal, the appellate Court cannot disturb, or reverse or set-aside such an acquittal order unless the same is found to be perverse, shocking, artificial and over and above suffering from jurisdictional defect or non-reading of evidence or misreading of evidence. The above yardstick if applied to the present case, we found that the impugned acquittal order is neither perverse nor artificial nor suffering from misreading or non-reading of evidence. It is also settled law that while hearing of appeal, if on re-appraisal of evidence, a contrary view is spelling-out even this is not sufficient for interference in the acquittal order unless it is established that none of the ground of acquittal finds support from the record and evidence available on file. In the case[7] the Hon'ble Apex Court has held that there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well- settled that "Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The view taken by this Court in case[8] is well-known that in an appeal against acquittal this Court, would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re- appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. This will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. In the case[9] the Hon'ble Apex Court has held that whenever an accused person is acquitted of a criminal charge then he enjoys double presumption of innocence; one before the trial of the case and second after his acquittal. Similarly, in the case[10] the Hon'ble Apex Court has held that an acquittal appeal stands on a different footing than an appeal against the conviction. In acquittal appeals, the superior Courts generally do not interfere with unless they find that miscarriage of justice has taken place. The factum that there can be a contrary view on re-appraisal of the evidence by the Court hearing the acquittal appeal simpliciter would not be sufficient to justify interference with the acquittal judgment.
13. For the afore-stated reasons, the instant appeal is found meritless and the same is accordingly dismissed in limine.
1. State-Vs-Memjoo (2003 SCMR 881)
2. Saghir Ahmed vs. The State and others (2023 SCMR 241)
3. Bashir Muhammad Khan v/s The State (2022 SCMR 986)
4. Muhammad Samiullah vs. The State (202i SCMR 998)
5. Khalid Mehmood alias Khaloo v/s The State (2022 SCMR 1148)
6. "Amin Muhammad Khan v/s The State" reported as (2023 SCMR 566), Sarfaraz and another v/s The State (2'023 SCMR 670), Muhammad Ashraf alias Nikka v/s The State (2022 SCMR 1328), Kashif Ali alias Kalu v/s The. State and another (2022 SCMR 1515), Tajamal Hussain Shah v/s The State and another (2022 SCMR 1567).
7. Jehangir v/s Aminullah & others (2010 SCMR 491)
8. Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11)
9. Barkat Ali v/s Shaukat Ali & others (2004 SCMR 249)
10. The state v/s Bashar (PLD 1997 S.C 408)