1990 PLP 313 (SCMR)

Nemo for the State. Date of hearing: 30th May, 1989. ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of a learned Judge of Baluchistan High Court dated 5‑12‑1988 dismissing an appeal filed by the petitioner against the judgment of Additional Sessions Judge II, Quetta where-under he was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to two years' R.I., whipping of 10 stripes and fine of Rs.5,000 in default whereof to suffer R.I. for three months more. According to the prosecution case, petitioner alongwith co‑convicts Abdul Rahim, 'Syed Asadullah and Bakhat Mohammad were found in a den of narcotics situated at Sirki Road, Quetta wherefrom 200 grams of heroin was found and recovered by a raiding party consisting of the staff of Joint Narcotics Task Force. At the trial Bahadur Khan PW‑2 and Ghaffar Khan PW‑3 who were members of the raiding party supported the prosecution case that the petitioner was present alongwith the co‑accused at place from where a plastic envelope containing 200 grams of heroin was found and secured. In defence, petitioner denied the presence on the spot and pleaded that he was at a nearby hotel having tea offered by the co‑accused from where he was arrested. Learned trial Judge however believed the prosecution evidence and held the petitioner and the co -accused guilty and sentenced them as stated earlier. ` On reappraisal of the evidence produced at the trial learned Judge in the High Court also held that the charge levelled against petitioner was proved against him and accordingly dismissed the appeal. We have heard the learned counsel for the petitioner and gone through the record in the light of submissions made by him. We find no justification whatsoever for interference as the guilt of the petitioner has been based on proper appreciation of evidence produced at the trial. Learned counsel for the petitioner, however, submitted that since the heroin was recovered from a place other than a public place, the offence under Article 4 of the Order was thus non‑cognizable, as provided under Article 16 of the said Order, and therefore the search of the place without the requisite warrant under section 151(2) of the Code of Criminal Procedure was totally illegal and the entire proceedings are void in law. We rind that this plea was not raised at the trial and no question was puts to any prosecution witness that the place where the heroin was found and 'recovered was a place other than public place. No question was even put in cross- examination to any of the Police Officers that the requisite search‑warrant was necessary, and that it was not obtained. The judgment of the High Court also shows that this plea was not raised by the learned counsel who appeared for the petitioner in the High Court in support of the appeal. 1n the circumstances we cannot permit the petitioner to raise this plea for the first time in these proceedings. The petition is therefore dismissed. M.A.K./H‑74/S. Petition dismissed.