2008 PLP 1111 (SCMR)

MUHAMMAD MOOSA K. LEGHARI, J.

This petition, for leave to appeal, arises out of order dated 4-10-2007 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the petitioner was declined post-arrest bail in a case registered vide F.I.R. No.3 dated 11-1-2007 at Police Station Anti-Narcotics Force, Rawalpindi, under section 9(c) of Control of Narcotic Substances Act, 1997 (to be referred herein after as "the Act").

2. The gist of accusation as contained in the impugned order is reproduced hereunder:-- "(2) Brief facts as unfolded in the F.I.R. are that on 11-1-2007 at about 6 a.m. ANF got spy information that a lady named Sakina Bibi was doing business of Narcotics and in case of raid recovery was expected; on this information, a raid was conducted at the house. of the petitioner/accused; when the reading party reached on the first floor they found a women and a boy sitting in the room busy in making pieces of Charas; both the said persons were apprehended and the pieces of Charas were taken into possession; after some time co-accused Irfan also got recovered Charas which was lying beneath the mattress of his bed; on weighing the total recovered Charas came to 13 Kgs."

3. It is contended on behalf of the petitioner that the accused being a woman is entitled to concession of bail (i) in view of the proviso contained under section 497, Cr.P.C. as she l not involved in an offence related to terrorism, financial corruption and .murder; (ii) there is no presumption of conscious and exclusive possession of the narcotic substances and; (iii) that despite having before hand spy information the raiding party entered the house without obtaining a search warrant in disregard of the mandatory requirements of sections 20 and 21 of the Act. On the above premises it is argued that the case of the petitioner is one of further inquiry.

4. Conversely, the learned Advocate Supreme Court/Special Prosecutor, Anti-Narcotics Force, argued that the alleged offence involves punishment of death and that the provisions of section 103, Cr.P.C. having been explicitly excluded in the narcotic cases, no case for bail was made out. In support of his contentions, learned Advocate Supreme Court/Special Prosecutor, Anti-Narcotics Force, relied upon the cases of (i) The State through Deputy Director, Anti-Narcotics Force, Karachi v. Mobin Khan 2000 SCMR 299, (ii) Muhammad Afzal Darzi v. State 2000 SCMR 1837, (iii) Muhammad Gul v. The State 2001 SCMR 1904, (iv) Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904, (v) Sh. Muhammad Tasleem v. The State 2006 SCMR 468, (vi) The State through Force Commander, Anti-Narcotics Force, Rawalpindi v. Khalid Sharif 2006 SCMR 1265.

5. The contentions raised on behalf of the petitioner/accused and Anti-Narcotics Force have been considered and the material placed on the record has been perused.

6. The bare perusal of the contents of the F.I.R. would reveal that the raiding party entered the house without obtaining any search warrant, though they have received spy information in advance.

7. The question of requirement of search warrant was considered by a Full Bench of this Court in Criminal Appeal No. 313/2006 decided on 31-1-2008. In the said judgment the learned bench of which one of us was the member observed that the requirement of search warrant under sections 98 and 103, Cr.P.C. is mandatory which can be dispensed with only in exceptional circumstances mentioned thereunder. While discussing the above provisions of, Cr.P.C. in juxta position with sections 20, 21 and 25 of the Control of Narcotic substances Act, 1997, it was observed as under:-- "(10) The plain reading of the above provision would show that the police or such other agencies do not enjoy unlimited powers to make search of the house of a person and disturb his privacy and dignity in violation of the mandate of the Constitution. The member of concerned agencies under the provision, Cr.P.C. as well as under Control of Narcotic Substances Act, 1997, without satisfying the requirement of law cannot enter into the residential premises without search warrant. (11) In the present case, the raiding party despite having prior information did not brother to obtain search warrant from a competent Court and conducted the raid at the house of appellant without showing circumstance to justify such raid without a search warrant. Section 25 Control of Narcotic Substances Act, 1997, provided that provision of section 103, Cr.P.C. are not such applicable to the cases under the ibid Act but this provision does not exempt the requirement of search warrant' and prior permission for entry into the residential premises for the purpose of search, the special provision relating to search and arrest under Control of Narcotic Substances Act, 1997, are not as such inconsistent to the provisions of Code of Criminal Procedure or are above the Constitution. The special provision of section 25 or sections 20 to 21 of Control of Narcotic Substances Act, 1997, do not as such permit violation of Constitutional guarantee of privacy and dignity of a man. The public functionaries are obliged to strictly follow the law and observe the privacy of the houses of the citizen failing which they can be proceeded against both for criminal trespass and also for damages in their individual capacity. The association of a Magistrate with the raiding party in a raid at a residential house, may not dispense with the requirement of search warrant and his presence is not sufficient to bypass the mandatory provision of law and violate the constitutional mandate. The purpose of search warrant is to maintain the privacy of the house, therefore, a Magistrate is not as such authorized to enter into the premises without due process of law or permission of inmates and is also not supposed to exercise his authority of law in any manner, he likes and since act of raiding the house of appellant in the present case was in utter disregard to the law and was a sheer violation of the fundamental right of privacy as envisaged in Article 14 of the Constitution of Islamic Republic of Pakistan, therefore, the association of Magistrate in the raid was immaterial."

8. It will be seen that the law laid down by the Full Bench is squarely applicable to the facts and circumstances of the petition in hand, whereas the fact and circumstances in the cases relied upon by learned Special Prosecutor, Anti-Narcotics Force, are quite distinguishable. In the case referred at Serial No.(i), the bail allowed by the High Court was cancelled on the ground that the third proviso to section 497(1), Cr.P.C. cannot be pressed into service in the Narcotic cases, and further that the statutory period as stipulated in the said proviso had not yet expired. In the case referred at Serial No. (ii), the petition was disposed of with the direction to the trial Court to conclude the trial within a period of 3 months as the petitioner alleged that the case filed against him was absolutely false and an outcome of his father's enmity with the police and that the recovery of Heroine powder was fake. In the case referred at Serial No. (iii), the bail was refused as the Charas was recovered from the truck being driven by the accused. In the case referred at Serial No.(iv), the bail granted by High Court on medical ground was cancelled by this Court wherein the accused was convicted by the trial Court and his sentence was suspended' on the ground that he was suffering from a common eye disease which could have been conveniently treated in jail and did not appear to be dangerous of life of the convict. In the case referred at Serial No.(v), the order passed by the High Court granting bail to the accused on the basis of affidavits of witnesses was set aside while observing that the accused persons particularly those involved in narcotic case face no difficulty in obtaining affidavit from witness resiling from their previous statements. In the case referred at Serial No.(vi), the order granting bail to the accused was set-aside as admittedly he was the proprietor/owner of the clearing agency which was found responsible for handling the consignment containing Hashish.

9. It is quite obvious that the point decided in the criminal appeal cited above neither arose, nor was considered in the above referred cases. The perusal of the order impugned in this petition reveals that though the plea of violating the mandatory provisions relating to search warrants was raised on behalf of the petitioner before the High Court, but the High Court did not dilate upon the same. Apart from above, the prosecution has to prove the conscious and exclusive possession of the petitioner and the quantity of contraband material recovered therefrom. 9-A. In the given circumstances, the case of the petitioner calls for further inquiry, thus entitling her to the concession of bail. The Criminal Petition is, therefore, converted into appeal and allowed. The impugned order is set aside. Consequently, the petitioner is directed to be released on bail subject to furnishing of surety bonds in the sum of Rs.0.5 million to the satisfaction of the trial Court. M.H./S-19/SC Bail granted.