PESHAWAR: A Peshawar High Court bench has ruled conducting a search of a house without a lady constable by police as illegal and directed a trial court to proceed against an officer involved in one such raid in Khyber tribal district.

A single-member bench consisting of Justice Roohul Amin Khan issued the order while accepting an appeal of a convict and setting aside his conviction in a narcotics possession case.

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.

The appellant, Shehzada Khan, a resident of Khyber district, said that on Sept 1, 2020, his house was raided by a police team headed by sub-inspector Adnan Khan and other officials including the SHO of Jamrud police station.

PHC orders trial court to proceed against Khyber police officer in drugs recovery case

The complainant police officer, Adnan Khan, claimed that the appellant was standing in the courtyard of his house and was having a polythene bag possessing three kilograms of heroin. He claimed that a Kalashnikov was also recovered from his possession.

The appellant was convicted by an additional district and sessions judge/special court (control of narcotics substance) on July 15, 2021, and was sentenced to five years rigorous imprisonment with a fine of Rs500,000.

The appellant’s counsel, Ali Zaman, contended that his client was implicated in a concocted case. The bench observed that the complainant police officer had admitted that the raiding team was not accompanied by any lady constable.

“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.

The court observed that under section 27 of the Act, in case of search of a dwelling house, the officer conducting the search should accompany lady constable and give an opportunity to the women of such 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.

It was added that section 32 of the Act provided penal consequences in case of non-compliance with the provisions of section 27, according to which an officer authorised under section 27, if entered a dwelling house without compliance of section 103 of the CrPC or did not give an opportunity to women of such house to observe pardah, should be punished with imprisonment for a term which may extend to three years and should also be liable to fine up to Rs100,000 and not less than Rs50,000.

The bench ruled that the said mandatory provisions of the Act had been blatantly violated by the seizing officer in the instant case, therefore he was liable to face legal consequences under the law.

The bench has also pointed out other flaws in the prosecution case, observing that in FIR the time of occurrence was shown as 0300 house i.e midnight. It was observed that the presence of the appellant in the courtyard of his house at 0300 hours (night) that too along with three kilograms of heroin was beyond the comprehension of a prudent mind as in such hour of night people were found in their beds and not in the courtyard.

Moreover, the officer admitted in the cross-examination that he had not annexed with record daily diary showing his departure and arrival in the police station on the day of the occurrence.

The judge pointed out that the complainant officer could not give any plausible explanation as to why the SHO, who was head of the police station, did not become complainant and seizing officer in the case despite his presence in the raiding team.

Published in Dawn, February 21st, 2022