1988 P Cr (PLP)

KAMAL MUSTAFA BOKHARY, J.--This is an appeal by Wasiuddin Khawar son of Sirajuddin, resident of Karachi from the order, dated 11-11-1987, of Mr. Zaheer Ahmad Khan, Sessions Judge, Karachi South whereby he was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and was sentenced to suffer imprisonment for life, to whipping numbering thirty stripes and to a fine of Rs. 10,000 or in default to further. undergo rigorous imprisonment for six months.

2. The facts disclosed in the first information report are that, on 31-7-1986, at 4.30 p.m. on secret information, Syed Fazal Abbas, A.E.T.O., accompanied by his staff conducted raid of a Flat No. 16-D, of appellant situated in Commercial Area, Sindhi Muslim Housing Society, Karachi. A lady searcher was originally sent upstairs to arrange Pardah for ladies present in the Flat. On her signal the raid party entered his flat. The appellant was found present on whose personal search a sum of Rs. 150 in cash and his identity card were recovered from front pocket of his shirt that he was wearing. After interrogation he brought out a carton which when opened was found to contain 13 bags of heroin powder of one kilogram each. It was secured. On further search of the house nothing else was recovered. A sample parcel was prepared and sealed. The remaining heroin in bags as sealed into parcel in the same carton. Appellant was arrested. Formal first information report was registered at Police Station, Excise (Special Crimes Branch), Karachi, on 1-8-1986 at 10.30 a.m. After investigation appellant was challaned in Court.

3. At the trial, prosecution examined six witnesses in all. Muhammad Arif (P.W.1), Maqsood Ahmad (P.W.2), public witnesses, were examined as mashirs of the recovery of cash and identity card from personal search of appellant and 13 bags of heroin from his house secured vide memo, Ex-5. Muhammad Arif did not support prosecution and was declared hostile. The recoveries from appellant were also proved by Syed Fazal Abbas (P.W.6), Assistant Excise and Taxation Officer, Mirza Ameer Anwar (P.W.3), Excise Inspector, Fazeelat Bibi (P.W.4), Lady Constable, Ch. Muhammad Maqsood (P. W.5). Excise Inspector. The report, Ex-14, of the Chemical Examiner, Karachi was tendered in evidence according to which the sample parcels contained heroin of commercial grade.

4. The appellant denied allegations. He did not admit recovery of heroin from his house and pleaded innocence. He appeared as his own witness and deposed as follows:- "On 31-7-1986 after Maghrib prayer when I was coming back, to my house I found some persons of the Excise party standing on the ground floor near my flat and few persons standing in the staircase leading to my flat. One of the members of the raiding party asked me that they were in search of Wasiuddin Khawar. I introduced myself to that officer that I was Wasiuddin Khawar. He told me that he had come for some investigation so I took two of them to my flat. After few moments one of the Officers came downstairs and called one constable who was in uniform. One of the Police Officers took out a pistol and asked me to go with them to Excise Office. I resisted so one of the officers maltreated me by giving a slap while the other gave me a blow with his fist on my neck. I was forcibly dragged and brought downstairs. While I was being dragged my wife happened to reach from the house of her brother, so she started making hue and cry on the ground floor. This attracted the attention of other people of the mohallah who came there and inquired from the members of the party and they were told that they had come from Excise Department and were taking me for investigation. I was forcibly pushed inside a van which was parked at some distance from my flat. While I was being dragged one of my clients Jawed had also reached there. Again says that he was already standing there. Thereafter, I was taken in the Pick-up to the Excise Office. My wife and two sons namely Waseem and Naeem also followed the Pick-up upto the Office of Excise. Jawed had also come in the same Pick-up to the Excise Office most probably brought by the raiding party. At the Excise Office I was warned not to make noise or any protest and ordered to go upto the IInd floor of the building. Due to fear I obeyed their direction and went to IInd floor of the office in a room. There I had seen two more persons namely Haji Laloo and Maqsood Ahmad already present. Jawed then was asked to leave the room and thereafter the Excise Officials locked me in a separate room and they continuously tortured me physically for about 2 hours. The Excise Officials then forced me to confess about my dealings with Haji Laloo, Maqsood and Jawed and also to disclose my previous dealings in narcotics. Since I was innocent and had no dealing of such types of articles I refused to confess and disclose any information. Regarding Haji Laloo, Maqsood and Jawed I explained to them that I knew them because they were my clients in matters of property dealings. I had sold a Bungalow bearing No. D-98, Block No-7, measuring 1,000 Sq. yds, in Gulshan-e-lqbal belonging to Jawed's Bhabi to one Abdul Salam Shaikh. The name of Jawed's Bhabi is Razia. The purchaser Mr. Abdul Salam Shaikh has been residing in that bungalow. Regarding Haji Laloo I explained to the Excise Officer that through me he had purchased a bungalow in Defence area for Rs. 25,00,000 from Rear Admiral Naeem Ahmad the M.D. of P.N.S.C. Regarding Maqsood I told them that he used to come with Jawed. After making investigation till mid-night the raiding party left me and Jawed separately in the office. Early in the morning at 9-30 the Staff Officers came in the morning but they were only three Officers and three constables. Most probably that day was Friday so on the second day which was Saturday I was shown under arrest and produced before a Magistrate for remand. Jawed was allowed to go while I was falsely involved in this case. On Ist August, 1986 after Juma prayer I found Police Inspector Narejo and wife of Jawed in the Office of Excise. One Zafar Imam was also with Narejo. They had some talk with the officers and took away Jawed with them. After obtaining remand for 7 days' Police custody on 10th August, 1986 I was remanded to judicial custody. I am innocent and nothing was recovered from my house. The heroin has been foisted on me which belongs to some other persons who had been let off. I produce certificates of doctors who had treated me of maltreatment while I was in the custody of Excise. They themselves had got me treated from private clinics. These certificates are marked as Exs. 17, 18 and 19." He also examined five witnesses in his defence who supported his defence plea. They were his wife, Qaiser Jehan (D.W.1), Muhammad Ishaque (D.W.2), a shopkeeper of cold drink adjacent to the building of appellant, Haji Ghulam Muhammad (D.W.3), also a shopkeeper in the locality, Mujeebur Rehman (D.W.4) who was returning with the appellant after saying Mughrib prayer when the police apprehended the appellant, Inam Ali Shah (D.W.5) also resident of the same locality who also deposed that after his return from the mosque where he said his Mughrib prayer he found two officials in plain clothes who took away the appellant from his flat.

5. We have been taken through the record and have perused it with the assistance of the learned counsel for the appellant and for the State.

6. It has been argued before us that leader of the raid party, Syed Fazal Abbas Shah, was twice declared a liar by this Court and was directed to be given some duty other than the duty of conducting raid. It was submitted that Muhammad Arif, a witness of recovery of heroin, was declared hostile while Maqsood Ahmad (P.W.2), a shopkeeper and member of raid party, who also witnessed the recovery of hew in, was resident of a place seven miles away and was under influence of Syed Fazal Abbas Shah. His name also did not appear in the first information report as a member of raid party. Therefore, it was submitted that the testimony of aforementioned three witnesses could not be relied upon due to which conviction of the appellant be set aside. The contentions have force. In two cases of Sardar Khan v. The State (Criminal Appeal No. 51/K of 1985) and Shah Dost and another v. The State (Criminal Appeal No. 4/K of 1986) this Court observed that Syed Fazal Abbas Shah was a liar. A direction was issued for putting him to some other duty. The testimony of Muhammad Arif has to be ruled out of consideration because he deposed that heroin was not recovered from appellant. He was declared hostile and was cross-examined by the prosecution. The evidence on record shows that Maqsood Ahmad (p W. 2) was under influence of Syed Fazal Abbas Shah. As such we are of the view that no reliance could be placed on testimony of Syed Fazal Abbas Shah, Muhammad Arif and Ahmad, P Ws in the circumstances of the present case.

7. The learned Assistant Advocate-General appearing for State argued that three other prosecution witnesses had also witnessed the recovery of heroin from the appellant. It was submitted that Mirza Ameer Anwar (P.W. 3), Excise Inspector, Mst. Fazeelat Bibi (P.W. 4) Lady Constable and Ch. Muhammad Maqsood (P.W.5). Excise Inspector, who were also members of the raid party had witnessed the recovery of heroin in this case and conviction of appellant could be upheld on their testimony. On behalf of the appellant it was submitted that none of these three witnesses was included in the list of witnesses; their, statements were not recorded under section

161. Cr.P.C. during investigation and no copy of it was supplied to the appellant before the commencement of trial.

8. Although the aforementioned three witnesses were signatory to recovery memo. of heroin, Ex-5, and were also members of the raid party the fact remains that none of them was cited as a prosecution. witness in the report under section

173. Cr.P.C. as originally submitted by Syed Fazal Abbas, P.W. All of them were his subordinates being members of the Excise Staff under Syed Fazal Abbas Shah who was Assistant Excise and Taxation Officer. During investigation by Syed Fazal Abbas Shah their statements were not recorded under section 161, Cr.P.C. and the only explanation given by the said Investigating, Officer was that there was no such practice. The provisions in section 161, Cr.P.C. do not require recording of statements but it is usually done and the accused gets benefit of contradicting prosecution witnesses at the trial. For the failure of Syed Fazal Abbas Shah to record such statements the accused was rendered unable to contradict, the witnesses with their earlier statements and was prejudiced in his defence. We therefore, consider it unsafe to rely on testimony of Mirza Ameer Anwar, Mst. Fazeelat Bibi and Ch. Muhammad Maqsood for upholding conviction of the appellant.

9. In view of the provisions contained in section

103. Code oft Criminal Procedure two respectable inhabitants of the locality are required to be joined when search of a house and recovery is to bed made. The consistent view of Courts is that the rule is mandatory' but not absolute and search can be conducted without taking such witnesses if there is no time available or the evidence is likely to be destroyed if search is delayed or suitable persons of the locality area not available to the Police. Safdar Abbas and 2 others v. The State (P L D,1987 S.C. 467 at page 488), Sultan and others v. The State (1987 S C M R 1177 At page 1188) and Muhammad Shafi v. The State P L D 1987 F S C 16 refer. The provision of section 103, Code of Criminal Procedure is meant to protect the citizens against possible plantation of contraband property and resultant implication of accused on a false charge. In the case of Muhammad Khan v. Dost Muhammad and others (P L D 1975 S.C. 607 at page 621) the Supreme Court held that Courts will ordinarily insist on a strict compliance of requirement of section 103, Code of Criminal Procedure and view its non-compliance with suspicion, unless an explanation is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court. The present was a case of search of the house of appellant. It was carried out without obtaining search-warrant. No respectable of the locality was joined because Muhammad Arif and Maqsood Ahmad, Mashirs, were residents of different places over seven miles away. It is in evidence that secret information was received by Syed Fazal Abbas Shah, P.W., at 8.00' a.m., the party reached place of occurrence at about 9-00 p.m. and the raid was conducted at 11-00 p.m. Thus there was sufficient time with Syed Fazal Abbas Shah, P.W. to associate two independent respectable persons of the locality. The explanation coming from him that no such person was available has not convinced us. The house of appellant was situated in a thickly populated area. It was surrounded by shops which were open at the time the raid was conducted. Syed Fazal Abbas Shah was leader of the raid party and himself investigated this case. He conducted the raid by associating only his subordinates of the Excise Department without joining even the local Police with him. Due to previous conduct of Syed Fazal Abbas Shah his testimony is unworthy of reliance. He was held to be liar by this Court twice, on 18-4-1985, when Sardar Khan v. State (Cr. A. No. 51/K of 1984)` was decided by this Court and again when this Court decided appeal titled Shah Dost and Muhammad v. State (Cr. A. No.4/K of 1986 on 15-5-1986. The only explanation given by the Assistant Advocate-General in Court was that no copy of this Court judgment was received in the department and direction of this Court went unnoticed. On the evidence we find that a case of benefit of doubt is made out in favour of appellant who is entitled to acquittal.

10. There is another aspect of the case. Under Article 16 of the Prohibition (Enforcement of Hadd) Order, 1979, an offence under Article 4 thereof is cognizable if it is committed at a public place. In the case in hand the heroin was recovered from the house of appellant which was not a public place. The police or for the matter of that Syed Fazal Abbas Shah, Assistant Excise and Taxation Officer had no power to investigate the case without permission of a Magistrate as required by the provisions contained in Section 155 (2) of Criminal Procedure Code. This Court in Criminal Appeal No. 175/1 of 1986 decided on 5-10-1986 and Criminal Appeal No. 94-I of 1387 decided on 11-6-1987 held that taking cognizance by police of non-cognizable offence vitiates the trial because the Judge or a Magistrate is not competent to take cognizance for trial of an offence which is investigated by the Police who had no jurisdiction to investigate.

11. For the aforementioned reasons we are of the view that conviction of the appellant cannot be upheld in view of the irregularities pointed out. Therefore, this appeal is allowed, conviction and sentences are set aside and appellant is acquitted of the charge. He shall be set at liberty forthwith if not required in any other case. M.Y.H./427/FSC Appeal allowed.