1990 PLP 1459 (MLD)

(c) Prohibition (Enforcement of Hadd) Order (4 of 1979)

Art.4

Criminal Procedure Code (V of 1898), S.103

Personal search of accused

Provisions of S. 103, Cr.P.C. are not applicable. P L D1986 F S C 133; P L D 1985 F S C 293 and P L D 1984 S C 278 ref. Manzoor Ahmad Ranan for Appellant. Nemo for the State. Date of hearing: 11th March, 1990. ABDUL KARIM KHAN KUNDI, J: -Jail Criminal Appeal No. 220/1 of 1989 is directed against the judgment and order of the Court of Additional Sessions Judge, Attock dated 19-10-1989 vide he found the appellant guilty on the charge of possession of 30 grams of heroin powder as recovered from him at excise check-post Mullan Mansoor while travelling in a wagon on 28-7-1986 at 9-15 p.m. and accordingly convicted and sentenced him to three years' R.I. and a fine of Rs.1,000 or in default two months' R.I. further under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. He also awarded him the sentence of whipping numbering ten stripes.

2. Learned counsel for the appellant argued that the recovery of the contraband item was only witnessed by excise and police officials in the very presence of the driver, conductor and other passengers of the wagon, besides other persons and as such the recovery of the contraband heroin powder from the possession of the appellant cannot be partaken with the proof of the charge against him beyond any reasonable doubt. It is, however, on record that the excise and police personnel did not bear any animosity as against the appellant. They were not likely to falsely involve or substitute him for the real culprit just for nothing. Muhammad Pervez and Muhammad Sajjad (PWs 3 and 4) the marginal witnesses of the recovery memo stated on oath that the wagon coming from Peshawar side was stopped at the post; Nasir Khan, appellant was brought down on suspicion; on his personal search 30 grams of heroin wrapped in polythene envelope was recovered from his right Chappal; ten grams thereof was separated as sample and two separate sealed parcels were prepared on the spot. They denied that the heroin was found lying under the seat of the appellant just behind the seat of the driver. The appellant in his statement under section 342, Cr P. C stated that the heroin was found during the checking of the baggage of the passengers from underneath the seat and that he was falsely involved on account of suspicion. He admitted the recovery of polythene envelope containing the heroin, but alleged its recovery from underneath the seat of the wagon while the prosecution claimed that the envelope of the heroin powder was recovered from his right foot Chappal. The appellant admitted in his statement under section 340(2) Cr.P.C. that his Chappal was got removed by the excise staff during his personal search. He denied that 30 grams heroin powder was recovered from the secret column of his Chappal. However, it does not stand to reason that in case, the heroin powder was recovered from underneath the seat of the appellant then for what purpose his Chappals were got removed by the excise staff. There was also not led evidence by the appellant in the statements of the driver, conductor and other passengers of the bus about the alleged recovery of the envelope containing the heroin powder in a different manner. The contraband heroin powder sent to chemical examiner was confirmed as heroin capable of intoxication. Prosecution has thus brought home the charge of the possession of heroin powder in 30 grams quantity to the appellant and he was as such liable to conviction under the 2nd proviso of Article 4 of the Prohibition Order prescribing punishment in imprisonment for life or imprisonment not less than two years and whipping not exceeding thirty stripes and also fine.

3. In fact, learned counsel for the appellant raised a legal question with reference to Article 16 of the Prohibition Order that an offence punishable under Article 4 shall be cognizable only if committed at public place and that in Article 2(j) word `place' is defined to include a house,

, vehicle etc. while in clause (1) word `public place' is defined to mean street, road, thoroughfare, park, garden or other place to which the public has free access and to include a hotel, restaurant, motel, mess and club, but does not include the residential room of a hotel in the - occupation of some person. He contended that the vehicle was a place which was stopped at the check-post and that an offence punishable under Article 4 committed at a place and not public place was as such not cognizable. The argument has, no doubt, apparent attraction, but there has been lost sight of that word `public place' also means other place including vehicle to which the public has free access as for example wagon or a passenger bus which can be boarded into by any person at a time it is plying on a road or standing at stop for boarding in or alighting out by passengers. Public place is a place which is either open to b the public or is used by the public. A public transport on wheels is necessarily covered by the definition of public place. Thus it is the place i.e. the road, the adda, the stop or the street where a public transport with passengers in it is plying or stopped where there is committed an offence under Article 4 of the Prohibition Order in such vehicle at the public place which is to be deemed an offence committed at the public place and which shall accordingly be a cognizable offence within the meaning of Article 16 of the Prohibition Order.

4. Reference is also made to a plethora of case-law in support of the view point that section 103, Cr.P.C. is not applicable to personal search of an accused. In P L 6 1986 FSC 133 accused while sitting in a compartment of train was searched by police and heroin was recovered from his person and it was held that section 103, Cr. P.C. was not applicable to such search. The search was further witnessed by a Railway Police official and a waiter of a waiting room at railway station and the said witnesses were considered as natural witnesses and conviction of the accused on their evidence was accordingly maintained. In P L D 1985 FSC 293 the accused was found in possession of charas while he was travelling in a bus. Excise and police officials had searched the accused and recovered the charas from his person. No public man was associated with the search of the person of the accused. The Court held that section 103, Cr.P.C. was not applicable to such a search. In P L D 1984 SC 278 (Shariat Appellate Bench) the police had raided a Suzuki and as a result liquor bottles were recovered there from. The search of the vehicle and recovery of the liquor bottles were witnessed by police personnel only. There was raised an objection to the search of the vehicle in the absence of two or more respectable inhabitants of the locality and the Court repelled the objection under observations that section 103, Cr.P.C. did not apply to the search of a plying vehicle add that in fact section 103, Cr.P.C. pertains to the search of a permanent place situate in an area and not to a vehicle. In the said case the Court had also accepted the evidence of the police personnel as good to sustain the conviction of the accused.

5. In view of the factual and legal background as stated above, we would, but, maintain the conviction and sentences and consequently dismiss the appeal. M.BA./518/F.S.C Appeal dismissed.