1996 P Cr (PLP)

"One Excise Constable Ashique had taken me to Islamabad Chowk, Hyderabad from my house where I saw the Excise party standing. They had secured Rs.1,000 and one Identity Card from my pocket, then they put me in a vehicle and taken me in the Excise Office where they involved me in the false case. The property lying in the Court was not secured from me nor I produced it. It has been foisted upon me. I produce the photostat copy of identity card of my wife as Exh.15. "

3. In support of the present appeal, Mr. Allah Bachayo Soomro, learned counsel for the appellant raised the following contentions:‑‑ (a) No search warrant was obtained before the search was carried out which violates the mandatory provisions of Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979. Reliance was placed on a judgment of Mr. Justice Nazir Ahmad Bhatti, Chief Justice of. This Court in the case of Ashiq Hussain v. State reported in 1995 MLD 932. (b) There is violation of provisions of section 103, Cr.P.C. inasmuch as two respectable persons of the locality were not associated as recovery Mashirs. (c) There are contradictions in the evidence of the prosecution witnesses which also suffer from infirmities.

4. On the other hand, Mr. Habib Ahmad, learned counsel for the State, argued that prosecution had established its case against the appellant. As regards the contention raised on behalf of the appellant on the basis of Article 22 of the Prohibition Order, 1979, learned counsel for the State could not controvert the contention but submitted that in any case the recovery of about 250 grams of opium from the personal search of the appellant outside his house did not require any search warrant and to that extent there was no violation of Article 22 of the Prohibition Order, 1979. In so far as section 103, Cr.P.C. is concerned, it was submitted that two Mashirs had been associated in the recovery proceedings out of them one had been examined which was substantial 'compliance of the provisions. Referring to contradictions, it was pointed out that the same were minor in nature and did not affect the prosecution case.

5. Complainant in this case Zaheer Shah has stated in .his evidence that on 8‑2‑1994 he had received spy information that a person was selling opium in a house of Manghwar Mohallah, Hala. The complainant organized a raiding party. As the house was raided for the purposes of recovery of narcotics, a search warrant had to be obtained before the raid was made in view of the provisions of Article 22 of the Prohibition Order, 1979. Learned counsel for the appellant had relied on a decision of this Court in the case of Ashiq Hussain v. State 1995 MLD

932. Paras. 6, 7, 8 and 9 of the said judgment support the contentions of the learned counsel based on Article 22 of the Prohibition Order, 1979 and section 103, Cr.P.C. and the same are reproduced here:‑‑ "

6. The learned counsel for the appellant contended that the house of the appellant, from where the aforesaid heroin powder was recovered was not a public place and the complainant A.S.I. had carried out raid thereon without obtaining a search warrant and had thus committed an illegality in terms of Article 22 of the Prohibition Order. The second limb of arguments of the learned counsel for the appellant was that the complainant A.S.I. had carried out search of the premises of the appellant without associating two persons of the locality and had also committed violation of section 103, Cr.P.C.

7. I have very anxiously considered both these contentions of the learned counsel. In so far as the first objection of the learned counsel is concerned, it would be of benefit to reproduce the provisions of Article 22 of the Prohibition Order, which are as follows:‑ 'Article

22. Issue of search warrants.‑‑‑ (1) If any Collector. Prohibition Officer or Magistrate, upon information obtained and after such enquiry as he thinks necessary, has reasons to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed he may issue a warrant for the search for any toxicant, material, still, utensil, implement or apparatus in respect of which the alleged offence has been committed. (2) Any person who has been entrusted with the execution of such a the warrant may detain and search and, if he thinks proper, but subject to provisions of clause (1) of Article 12, arrest any person found in the place searched, if he has reason to believe such person to be guilty of an offence under Article 3, Article 4, Article 8 or Article

11. The minute perusal of the aforesaid circumstances will clearly indicate that if any search is to be carried out in any premises for the recovery of any narcotic then search warrant has to be specifically obtained. The clear intent of aforesaid provisions of Article 22 is that no search shall be carried out without the authority of a search warrant. This is a mandatory provision of law. No search warrant was either referred to by the Investigating Officer or was produced in evidence to show that before invading the premises of the appellant for the purpose of carrying out the search, he had obtained a search warrant. (8) In so far as the second objection of the learned counsel is concerned, it is also a fact that no witness of the locality was associated with the search of the premises of the appellant and there was thus a clear violation of the provisions of section 103, Cr.P.C. (9) It is a well‑settled principle of law that if a particular procedure for doing anything or for taking any action is prescribed by law then it has to be strictly followed and adhered to and thing done or action taken has to be in accordance with the said prescribed procedure otherwise the thing done or the action taken would be in violation of the provisions of the law and it would be a nullity in the eyes of law. Such thing done or action taken would not be considered to have been done or taken at all. Many cases have come to the notice of this Court where premises were raided without the sanction of a search warrant and without associating two persons of the locality. The factum of attestation of recovery memos by police officials alone prepared after search of the premises was a clear non‑compliance with the provisions of section 103, CI.P.C. and the whole exercise would mean that no action had been taken in obedience thereof. The Investigating Officers in such a situation are bound to carry out the intention of law to the last word."

6. In this case complainant Zaheer Shah did not refer to any search warrant having been obtained by him before the raid was conducted. However, in his cross‑examination he stated that he had obtained search warrant from the Excise and Taxation Officer but he could not produce the same. The trial Court directed him to produce the search warrant after his evidence was completed but at the end of his cross‑examination, the trial Court noted as follows:‑‑ "The witness is present. He has stated that he is unable to produce the warrant as it is not available in the police papers. " From the above, it can be safely presumed that no search warrant had been obtained before the search of the house of the appellant. As the house was going to be raided for the purposes of recovery of contraband narcotics, it was mandatory under the law for the Police Officer to obtain search warrant. As in this case, search warrant had not been obtained, the search of the premises becomes illegal. There is also violation of section 103, Cr.P.C inasmuch as two witnesses from the public had not been associated in the recovery proceedings. According to the learned counsel for the State one recovery witness had been produced and this is substantial compliance with the provisions contained in section 103, Cr.P.C. The contention of learned counsel for the State cannot be accepted as, firstly, there is a serious doubt as to whether P.W.1 Ali Raza Shah was a resident of the locality. He has not stated in his evidence that he was resident of the locality. On the contrary, he stated that on the day in question he was standing at a shop in village Ata Ram in Hala. Then the law requires two or more respectable inhabitants of the locality to witness the search and association of one witness from the locality does not fulfil the requirement of section 103, Cr.P.C. In this context reference can be made to a recent decision in the case of Muhammad Mansha v. State 1995 SCMR 1414 which was also a case under Article 4 of the Prohibition Order, 1979. In this judgment, after referring to the provisions of section 103, Cr.P.C. the Supreme Court observed as follows:‑‑ "The plain reading of this section would show that before making a search of any place, the Police Officer is obliged to call upon at least two respectable inhabitants of the locality to attend and witness they search, but unfortunately, in the instant case the two respectable inhabitants were not associated during the search of the house. The Investigating Officer could issue an order in writing calling upon the two respectable inhabitants of the locality to attend and witness the search, but, he had not done so. No doubt, he had joined Amanullah Shah P.W:2 from the public to witness the recovery but that will not fulfil the mandatory requirement of section 103, Cr.P.C. and this legal infirmity per se may vitiate the search proceedings." There is also a major contradiction between the evidence of the two witnesses and the Chemical Examiner's report regarding the weight of the opium allegedly recovered. According to the F.I.R. and the evidence of the two prosecution witnesses, the weight of the entire opium including the opium of small packet came to 5250 grams but according to the Chemical Examiner's report, the net weight of the opium without wrappers was 5481 grams. There is difference of 231 grams between the weights given by the two prosecution witnesses and the weight given in the Chemical Examiner's report. No explanation has been given as to this discrepancy in the weight. This discrepancy also creates a doubt about the recovery.

7. For the aforesaid reasons, I am of the view that the prosecution had not established its case against the appellant as required by the law. As a result. Criminal Appeal No. 50/K of 1994 is allowed, the impugned judgment, dated 2‑8‑1994 of the learned Sessions Judge, Hyderabad, is set aside and the appellant is acquitted of the charge. It is directed that the appellant be set at liberty forthwith if not required in any other case. N.H.Q./1024/FSC Appeal accepted.