February 22nd, 2022
By Rehan Piracha
The Peshawar High Court has ruled that a police raid on a house for search and seizure of drugs without the presence of a lady constable is illegal under provisions of the provincial narcotics control law.
Justice Rooh-Ul-Amin Khan also directed a trial court in Khyber tribal district to proceed against a police officer for conducting a house raid without a female constable. The court also acquitted Shehzada Khan, setting aside his five-year sentence for possession of three kilograms of heroin seized in a raid on his Jamrud house in September 2020.
According to the first information report, the complainant in the case, sub-inspector Adnan Khan, claimed he had raided Shehzada Khan’s residence along with a team including the station house officer of the Jamrud police station, on a tip-off. During the 3 am early morning raid, Khan was found standing in the courtyard with a bag containing three packets of narcotics substance. A Kalashnikov rifle was also seized in the search.
On July 15, 2021, Shehzada Khan was convicted by an additional district and sessions judge/special court (control of narcotics substance) and was sentenced to five years rigorous imprisonment with a fine of Rs500,000.
In his appeal against the conviction, Khan’s counsel, Ali Zaman, contended that his client was implicated in a concocted case. The bench observed that the police claim of finding the appellant standing in the courtyard with the narcotics late-night appeared dubious. Besides, the judge observed that the complainant police official did not give any explanation as to why the SHO, the in charge of the police station, did not become a complainant or witness in the case.
Area notables, lady constables should be part of search team
Justice Rooh-Ul-Amin Khan observed that the complainant police officer had admitted that no lady constable had accompanied the raiding team.
“Non-association of any notable of the areas well as lady constable with the raid and recovery proceedings not only make the recovery highly doubtful but amounts to a violation of sections 27, 28 and 31 of Khyber Pakhtunkhwa Control of Narcotics Substance Act, 2019,” the bench observed.
Under Section 27, the judge observed, in case of search of the dwelling house, the officer conducting the search shall accompany lady constables and shall give an opportunity to the women of such dwelling house to observe Pardah in order to maintain the dignity and modesty of the women and dwelling house.
Moreover, the bench observed that under proviso to section 31 of the law, in case of search of a dwelling house the provision of section 103 of the Code of Criminal Procedure, dealing with associating notable of the area during a search, should be strictly observed.
According to Section 32 of the Act, an officer could be punished for violating provisions relating to search and seizure in a house with imprisonment for a term which may extend to three years and also be liable to a fine up to Rs100,000 and not less than Rs50,000.
“The above mandatory provisions of the law have been blatantly violated by the complainant/Seizing officer in the instant case, therefore, he is liable to face the legal consequences under the law,” the judge said.
“On reappraisal of the prosecution’s evidence, I have reached to an irresistible conclusion that the recovery of contraband narcotic, arm and ammunition from the house of the appellant as alleged by the prosecution, is highly doubtful, the benefit of which is to be extended to the appellant,” the judge wrote in his order.
The bench directed the trial court to open a separate file against the seizing officer/complainant in the case for proceedings against him under section 32 of Khyber Pakhtunkhwa Control of Narcotics Substance Act, 2019, after giving him proper notice and providing him with an opportunity of hearing.