1977 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)‑ ‑‑‑ S. 497/498 ‑ Bail‑Petitioner accused of an offence under S. 43(3), Sind Abkari Act, punishable with 7 years' imprisonment 5earch of raided premises not Witnessed by respectables of locality as required under S. 103, Cr. P. C.--‑Accused admitted to bail, in circumstance.‑Sind Abkari Act (V of 1878), S. 43(3). Muhammad Ali Shaikh for Applicants. Sattar Shaikh, Asstt. A: G. for the State. The two applicants in this case have been sent up to stand trial under section 43 (3), Akbar Act.

2. According to the prosecution Excise Inspector Kotri, is said to have received spy information in pursuance of which he alongwith Mr. Mohsin Ali Shamsi, District Officer Dadu and Police Constable and Head Munshi, Taluka Kotri as well as Mashirs Nazir Ahmad and Qadir Bux went and raided the house of applicant Nasrullah. The police party found both applicants to be present, and after usual precautions searched the house. They found under the cot on which applicant Sher Mohammad was lying down bags of cloth containing charas, which weighed to be 25 seers. On interrogation, applicant Nasrullah led the police to a room in the house where also charas was lying. The whole quantity of charas was weighed and found to be four maunds and seven seers.

3. Learned counsel for the applicants, in support of the application has first raised the contention that an offence under section 43 (3), Abkari Act although punishable with seven years' imprisonment is bailable. For this purpose learned counsel relied upon the provisions of section 41‑B, Abkari Act and contended that under the provisions thereof powers have been vested with the Abkari Officer to grant bail to a person accused of an offence punishable under the Act. Accordingly it was urged that since the Abkari Officer has been empowered to release a person arrested for any offence under the Act, irrespective of the nature of the offence it is reasonable to hold that all offences under the Abkari Act are bailable. Developing his argument, the learned counsel referred to the 11 Schedule of Criminal Procedure Code under the terms whereof offences under the Special Acts which are punishable with death, transportation, or imprisonment for 7 years or upward are prescribed to be not bailable. In this connection learned counsel submitted that the provisions of Abkari Act being a Special Law would prevail as against the provisions of Criminal Procedure Code as provided by section 1 (2) and section 5(2) thereof. Under the latter provisions offences under laws other than the Pakistan Penal Code are to be investigated, inquired into and tried or otherwise dealt with in accordance with the provisions of any enactment for the time being in force regulating such matters.

4. On the merits, learned counsel for the applicants contended that the search conducted by the Investigating Officer was contrary to the provisions of section 38 of the Abkari Act read with section 103 of the Criminal Procedure Code, in so far as the two mashirs in whose presence the search was conducted were not inhabitants of the locality In which the place of search was located. The counsel relied on cases reported in P L D 1964 Lah. 386, 1975 P Cr. L J 565 and 1971 P Cr. L J

274. Lastly, learned counsel contended that the offences charged against the applicants not being punishable with death, imprisonment for life or ten years, the applicants are entitled to bail.

5. Learned Assistant Advocate‑General replying to the contentions raised by the learned counsel for the applicants submitted that section 41 (B) of the Abkari Act cannot be construed to mean that all offences under the Abkari Act are bailable merely because the Abkari Officer is empowered to grant bail. He submitted that even under the Code of Criminal Procedure a Police Officer Is empowered to release en bail a person arrested in connec tion with a non‑bailable offence. According to learned Assistant Advocate-General, there is no conflict between the provisions of Abkari Act and the Criminal Procedure Code so far as the question of offence under section 43(3), Abkari Act being non‑bailable is concerned. Whether an offence is bailable or not bailable, he submitted, reference will have to be made to 11 Schedule according to which the aforesaid offence is not bailable. There is no express provision to the contrary in the Abkari Act.

6. I, however, do not feel called upon to decide this question for the reason that on the merits of the case I have come to the conclusion that the applicants are entitled to bail. Although I am unable to agree with the learned counsel that non‑compliance with section 103 vitiated the search to the manner alleged, the consensus of opinion appears to be that a Court should be on guard where witnesses to the search do not come from the, should locality, to scrutinise their evidence thoroughly before relying upon it for the purpose of conviction. It has been held that the emphasis is upon the respectability of witnesses rather than the locality from which they come.

7. So far as applicant Sher Mohammad is concerned, admittedly, the house did not belong to him and the only allegation is that he was found lying on a cot there. He is therefore clearly entitled to bail. As regards applicant Nasrullah the evidence of recovery has to be assessed at the trial and for the present the question of his criminal liability requires in my opinion further enquiry in view of the fact that the witnesses of search we not inhabitants of the locality.

8. For the foregoing reasons I would allow bail to the applicants in the sum of Rs. 5,000 each with one surety and P. R. to the satisfaction of the Sessions Judge, Dadu. Petition allowed.