1996 P Cr (PLP)

Ghulam Sabir for Appellant. Shah Jahan Khan, Addl. A.-G. for the State Date of hearing: 28th September, 1995. Zamin Khan son of Rehmat Khan resident of Awi Shah Asbanr, Tehsil Adezai, District Dir, appellant herein, was charged by the learned District and Sessions Judge/District Qazi, Dir that on 30-7-1994 at 16-30 hours from his shop situate in Bazar Asbanr within the limits of Police Station Ouch, District Dir the local police during search in his presence recovered Charas weighing 650 grams and opium weighing 2 Kgs. and 625 grams, which is punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The appellant denied the charges and trial was held. After the conclusion of trial the learned District and Sessions Judge by his judgment, dated 4-5-1995 convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to 2 years' R.I., fine for Rs.2,000 and in default of payment 2 months' S. I. The F.I.R. (Exh P.W.2/1) was lodged by Fazal Muhammad Khan, S.H.O. P.W.1 and it is alleged in the F.I.R. that during Gasht he was tipped by an informant that the appellant in his Karyana Shop situated in Bazar Asbanr deals in purchase and sale of Charas and other intoxicants. Therefore he alongwith a police posse went to the shop and saw the appellant armed with .30 bore pistol bearing No.9583 country-made alongwith one spare charger, total 24 cartridges alongwith bandolier which were recovered from him after overpowering. The shop was searched and from the show-case Charas and from an almirah on the eastern side of the shop opium was recovered from a carton. The Charas weighed 650 grams and opium weighed 2 Kgs. and 625 grams. Four grams Charas and 4 grams opium were separated and sent for chemical examination after sealing them in separate parcels. The appellant was arrested. Fazal Muhammad, S.H.O., P.W.1, Aminur Rehman, A.S.I., P.W.2 and Niaz Muhammad, A.S.I., P.W.3, appeared for the prosecution. The statement of the appellant was recorded who denied the charges and alleged that the S.H.O. owed some money to him for purchase of honey from him and when he demanded the same from him, he took him in a vehicle. The recovery of Charas and opium from his shop was denied. Learned counsel for the appellant vehemently argued that shop is a place within the meaning of section 2(j) of the Prohibition (Enforcement of Hadd) Order, 1979 and it cannot be searched without obtaining a warrant under Article 22 of the Order. It was further contended that the provisions of section 103, Cr.P.C. were not complied when the shop was searched by Fazal Muhammad S.H.O., P.W.1 Judgments reported as Muhammad Arshad and another v. The State 1986 PCr.LJ 1506, Muhammad Aslam v. The State 1993 PCr.LJ 205 and Iqbal Masih v. The State 1995 PCr.LJ 231 were referred. Learned counsel further contended that alleged recovered opium and Charas were sent for chemical examination on 31-7-1994 and received by the Chemical Examiner on 7-8-1994 and there is no explanation of the prosecution as to where the alleged recovered opium and Charas remained in between 31-7-1994 and 7-8-1994. Reference was made to judgment Muhammad Arif v. The State 1993 PCr.LJ 1953. The learned Additional Advocate-General vehemently contended that the shop of the appellant is situate in a Bazar and as the offence was cognizable the police was competent to search the shop and recover articles of crime from the shop and there was no occasion for procuring independent witnesses of the recovery of the opium and Charas from the shop. Police officials are as much good witnesses of recovery as any other independent person. Reliance was placed on judgment reported as Muhammad Shah v. State PLD 1984 SC 278 Malik Aman v. The State 1986 SCMR 17.

2. All the provisions of Prohibition (Enforcement of Hadd) Order, 1979 (President's Order No.4 of 1979) hereinafter called Prohibition Order, 1979, have overriding effect notwithstanding anything contained in any other law for the time being in force (Article 29) The Code of Criminal Procedure, 1898 (Act V of 1898) and the Pakistan Penal Code (Act XLV of 1860) apply in respect of cases under the Prohibition Order, 1979 unless otherwise expressly provided in the Order. The Prohibition Order, 1979 as such is a self-contained law and the Code of Criminal Procedure or Pakistan Penal Code is enabling law in aid of registration, investigation and trial of the cases under the Order. The offences punishable under Articles 3, 4, 8 or 11 if committed at a public place are cognizable (Article 16), The words "public place" and the "place" have been given definition under Article 2(1)(j), respectively. Any Collector, Prohibition Officer or Magistrate has been authorised to issue search warrants upon information obtained and after such inquiry as necessary under Article 22 of the Prohibition Order. 'A shop is a "place" and an offence committed under Article 3, 4, 8 or I1 in the shop will require issuance of warrant for search for any intoxicant, material, still, utensil, implement or apparatus in respect of which the alleged offence has been committed. While conducting the search under search warrant the provisions of section 103 of Code of Criminal Procedure, 1898 shall apply mutatis mutandis (Article 27).

3. The complainant Fazal Muhammad Khan, S.H.O., Police Station Ouch, District Dir, P.W.1, has stated that an informer told him that the appellant in his shop is dealing in sale of Charas and other intoxicants, therefore, he searched the shop of the appellant and recovered Charas from a show-case and a carton from an almirah which was containing opium. The S.H.O. did not obtain the mandatory search warrant under Article 22 of the Prohibition Order for search of the intoxicants in the shop of the appellant. The search for and recovery of the alleged intoxicants from the shop of the appellant by the S.H.O. is in violation A of the Prohibitory Order, 1979 and is, therefore, illegal. The search and recovery of the alleged intoxicants was also not done in accordance with the provisions of section 103 of the Code of Criminal Procedure, 1898. The Federal Shariat Court in the case of Iqbal Masih v. The State 1995 PCr.LJ 231 has ruled that the search proceedings of an accused's premises in violation of section 103, Cr.P.C. is an illegality and the whole raid proceedings over the premises and search were, therefore, devoid of any legal authority and invalid. Similar are the rulings it. the cases of Muhammad Irshad and another v. The State 1986 PCr.LJ 1506 and Muhammad Aslam v. The State 1993 PCr.LJ

205. The reference by the learned Additional Advocate-General to the cases of Muhammad Arif, Muhammad Shah and Malik Aman are the cases where a person is searched in a moving or plying vehicle on a public place. The search and recovery from the shop of the appellant was devoid of any legal authority, illegal and invalid. This appeal is, therefore, accepted, the conviction and sentences of the appellant are set aside and the appellant is acquitted of the charges. The appellant shall be released from jail forthwith, if not required in any other case. N.H.Q./1844/P??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.