2011 PLP 238 (YLR)

ABDUL SAMAD KHAN, J.

Abrar Hussain appellant was tried by Special Court/Sessions Judge, Mansehra for alleged commission of offence under section 9 of Control of Narcotics Substances Act, 1997 thereby convicting and sentencing him to six years' R.I. with a fine of Rs.50,000 or in default thereof to further S.I. for six months vide judgment and order dated 15-6-2010 passed in special court case No. 4/Spl of 2008.

2. The prosecution case as narrated in F.I.R. is that on 16-12-2007, appellant who was under arrest in case F.I.R. No.568 dated 15-12-2007, F.I.R. No. 571 dated 15-12-2007 and F.I.R. No. 572 dated 16-12-2007 with local police of Police Station Shinkiari and regarding whom search warrant had already been obtained disclosed that he used to sell the charas after bringing the same from Darra Adam Khel which were kept in an Almirah inside his house, as such, raid was conducted on the house of the appellant situate in village Dhudyal thereby leading to recovery of 5 slabs of chars wrapped in plastic bag from the said Almirah which after weighment was found to be 5005 grams. It is further averred therein that 5 grams each was separated from the slabs for chemical analysis whereas remaining stuff was sealed in separate parcel coupled with the fact that upon further search of the house, from another Almirah of veranda, a kalashnikov with magazine containing 15 live rounds without license were also recovered hence case under section 9(c) C.N.S.A./13 AO was got registered vide F.I.R. No. 573 dated 16-12-2007 in Police Station Shinkiari District Mansehra.

3. Separate challans were submitted under section 9(c) C.N.S.A. and 13 AO as against the appellant who was accordingly tried, convicted and sentenced under section 9(c) C.N.S.A. as' is mentioned hereinabove, however, as per learned counsel for the appellant, charge against him under section 13 AO could not be proved hence was acquitted.

4. We have heard the learned counsel for the parties at considerable length and have also perused the record.

5. Learned counsel for the appellant contended that warrant of arrest was obtained from Judicial Magistrate whereas power to issue warrants exclusively vest in the Special Court constituted under Control of Narcotic Substances Act, 1997. He further added that the house wherefrom contraband was recovered was not in exclusive control of appellant rather his family members also resided therein. Delay of 19 days in sending samples to FSL was yet another ground raised by the learned counsel by adding therewith that on same set of evidence, appellant was acquitted under section 13 AO and no appeal thereagainst has been preferred. Conversely, State Counsel took exception to the arguments of counsel for the appellant by submitting that as per disclosure and pointation of the appellant, contraband was recovered from his residential house. He went on to say that notwithstanding the fact that search warrant was not obtained from the court of competent jurisdiction, charge against appellant stood proved, as such, trial would not be vitiated on the said score, alone.

6. Record of the case bears it out that search warrant was obtained from the court of Judicial Magistrate Mansehra on 1-12-2007 whereby S.H.O. Police Station Shinkiari was authorized to conduct raid upon the house of the appellant, however, question arises that under which provision or authority of law the same was issued regarding which record is totally silent. Besides, admittedly search warrant was procured on 1-12-2007 whereas raid was conducted on 16-12-2007 i.e. after the lapse of 15 days of issuance thereof.

7. Section 20 of Control of Narcotic Substances Act, 1997 connotes that Special Court, alone, can issue warrant for the search of any building, place, premises or conveyance in which it has reason to believe that contraband mentioned in the section is kept or concealed. Subsection (i) of the said section is thus restricted and deals primarily with apprehension of offender which would, obviously, be followed by his culpability, on the one hand and provisions for raid, search, on the other, but the Magistrates muchless Judicial Magistrates have not been invested with such powers. The said jurisdictional error cannot be ignored. It is now well established that before such an action is justified, the existence or otherwise of the power is to be ascertained so as to perform it within permissible limits failing which the very action together with super-structures built thereon would crumble.

8. True that Police Officer can have recourse to section 21 of the Act but that is subject to the condition that after forming a definite opinion that obtaining of search warrant would consume much time enabling accused to destroy or conceal evidence then of course, the same can be resorted to but in that eventuality burden lies upon the Police Officer to give plausible explanation in respect thereto. In normal circumstances, obtaining of search warrant cannot be dispensed with nor police officer is given license to transgress the authority of law as per his own desire tantamounting to clear cut departure from procedure a prescribed under the law. Reliance is placed upon 2003 SCMR 881 and 2005 PCr.LJ

76. Peculiar facts of instant case would signify that it was not a case of urgency and exception so as to necessitate doing away with Procedure prescribed in section 20 of the Act ibid otherwise recourse to section 21 could have been appropriate but over here situation is altogether different in that incompetent forum has been approached, therefore, jurisdictional defect can neither be rectified nor condoned. Viewing the matter in this perspective the search warrant issued by Judicial Magistrate did not clothe the S.H.O. concerned with an authority to enter upon and search the house of the appellant muchless making recoveries therefrom. In "Nasrullah v. The State" PLD 2001 Peshawar 152 it was held by full Bench of this Court that:-- "If the requirements of a statute which prescribes the manner in which some thing is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, then those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings." In yet another judgment of august Supreme Court of Pakistan reported in PLD 2008 SC 376 it was held that provisions of section 25 or sections 20 to 21 of C.N.S.A., 1997 do not as such permit violation of Constitutional guarantee of privacy and dignity of a man and public functionaries are obliged to strictly follow the law and observe the privacy of the houses of Citizens failing which they can be proceeded against both for criminal trespass and damages also, in their individual capacity. The purpose of search warrant is to maintain the privacy of the house thereby restricting entry to it without due process of law or permission of inmates. In this particular case the entry into and search of the house was in sheer violation of fundamental rights envisaged under Article 14 of the Constitution of Islamic Republic of Pakistan, therefore, the so-called search warrant issued by Judicial Magistrate was immaterial. The version putforth by the prosecution that as per pointation of the appellant, search and recovery was made is thus a frivolous pretext particularly when raid was conducted in pursuance to search warrant without fulfilling command of Constitution together with deviating from legal obligations.

9. Next would arise the question as to whether the appellant was in exclusive possession of the house answer to which is, essentially, in negative in that the prosecution could not prove the same through cogent evidence rather other inmates of the house, too, resided over there hence it can not be presumed that the , contraband was in exclusive possession of ' the appellant especially when he has been acquitted of the charge qua recovery of kalashnikov from the house in consequence of same raid.

10. Last and not the least would be sending of samples of contraband for chemical analysis after the lapse of 19 days regarding which it has been pointed out that the same remained in a box. Viewing the matter from each and every angle we are of considered view that the prosecution apart from other infirmities, could not prove its case against the appellant beyond any shadow of doubt hence by allowing instant appeal, conviction and sentence awarded to the appellant vide impugned Judgment and Order of Special Court is set aside and he is acquitted of the charge. He shall be set at liberty forthwith if not required in any other case. H.B.T./362/P Appeal allowed.