1995 PLP 1414 (SCMR)

MUHAMMAD MUNIR KHAN, J: ‑‑Muhammad Mansha appellant was tried by the Additional Sessions Judge, Chunian, under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 on the charge of possessing 20 kg. heroin on 18‑6‑1990 which was recovered from his Baithak situate in Thing More, District kasur, who, on 14‑9=1991, convicted him under Article 4 of the Prohibition Order and sentenced him to imprisonment for life, thirty stripes and a fine of Rs.50,000,, or six months' R.I. in default. Federal Shariat Court vide its judgment dated 30‑4‑1992 dismissed the appeal filed by him against his conviction and sentence but has given him the benefit of the provisions of section 382‑B, Cr.P.C. Feeling aggrieved thereby, he filed a petition for leave to appeal in this Court which was granted on 9-6-1994. Leave granting order reads:

2. Prosecution case, briefly stated, is that on receiving secret information, Muhammad Akram S.I./Officer Incharge Norcotics Staff, Kasur (P.W.6) conducted raid on the house of the appellant. During house search, he recovered 20 bags of heroin each weighing one kilogram, from his Baithak in the presence of Amanullah Shah P.W.2, and Hidayatullah P.W.3, who have supported the prosecution case in their statements before the trial Court. In his statement under section 342, Cr.P.C., the appellant has denied the recovery of the heroin from his B4ithak. He has raised the plea of false implication on account of enmity with the police. In answer to Question No.3, he has gated: "The 1.0. Muhammad Akram S.I. got furniture from me in the sum of Rs.20,

000. He did not pay me the price of the said furniture and there was an altercation between us. He arrested me, my father and my brother Abdul Hamid on 13‑6‑1990 illegally. On 17‑6‑1990 my cousin Muhammad Sanaullah filed an application under section 491, Cr.P.C. against the 1.0. before the Hon'ble Lahore High Court, Lahore, when the 1.0. knew the fact, he planted the said case property on me on 18‑6‑1990 and my brother Abdul Hamid was challaned in a case under section 13 Arms Ordinance NOXX of 1965. The P.Ws. except Amanullah are the police officials and Amanullah is a stock witness of the police."

3. Learned counsel for the appellant has argued that the appellant has falsely been involved in this case; that since the appellant had been arrested by the police before 17‑6‑1990, the question of recovery of the heroin from his Baithak in his presence on 18‑6‑1990 does not arise. Learned counsel for the State has supported the impugned judgment.

4. We nave considered the arguments addressed before us. We feel persuaded to agree with the learned counsel for the appellant. We find that the raid was conducted on the house of the appellant consequent upon secret information. So, the police had ample time to associate two respectable persons from the locality to witness the house search, as required by the provisions of section 103, Cr.P.C. which may be reproduced advantageously:‑‑ "103.‑‑(1) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. (2) The search shall be made in their presence, and a list of all things seized in the course of search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witness; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (3) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be , delivered to such occupant or person at his request. (4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request. (5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by any order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code."

5. The plain reading of this section would show that before making a search of any place, the police officer is obliged to call upon at least two respectable inhabitants of the locality to attend and witness the search, but unfortunately, in the instant case the two respectable inhabitant's were not associated during the search of the house. The Investigating Officer could issue an order in writing calling upon the two respectable inhabitants of the locality to attend and witness the search but; he has not done so. No doubt, he had joined Amanullah Shah P.W.2 from the public to witness the recovery but that will not fulfil the mandatory requirement of section 103, Cr.P.C. and this legal infirmity per se may vitiate the search proceedings. Furthermore, the record of the case will show that on 17‑6‑1990 i.e., a day before the alleged recovery of heroin from the Baithak of the appellant, Muhammad Sanaullah had filed a Habeas Petition against Muhammad Akram S.I. P.W.6 for the recovery of Muhammad Mansha appellant from his custody. In paragraphs 3 to 5 of the Habeas Petition (Cr. Misc. No.392/H of 1990), it has been stated:‑‑ "(3) That Muhammad Mansha has moved an application before the S.P., Kasur, photostat copy of the same is annexed for., the kind perusal of this Honourable Court. The police authorities C.I.A. instead of registration of the case the police personnels have become inimical towards the detenus as the accused persons are paying monthly to the police therefore the police authorities were deriving a vedge against the detenus and their family members. They have considered the said application as if some complaint. was lodged against them. Respondent/Akram Major incharge of C.I.A., Kasur who is known for commission of attrocities and that is why he is being called as Akram Major although he is nothing to do with the Pak Army. Akram Major/respondent alongwith a big squad of police personnels on 13‑6‑1990 at about 4‑00 a.m. early morning raided the house of the detenus. Muhammad Bashir son of Jamal Din is the real paternal uncle of the petitioner and therefore the petitioner has gone to meet him and has stayed at night in his house. (4) That the respondent has arrested Bashir and. the three detenus and Nawaz. He said that I am taking them in custody to teach you the lesson for filing application before the higher forum/officers. This occurrence has witnessed hundereds of the villagers as they` have collected in front of the house. However Muhammad Ashraf son of Khushi Muhammad, Abdul Ghafoor son of Muhammad Din both residents of Thingh More were also present and interfered that innocent persons may not be arrested but respondents threatened them of dire consequences. (5) That since then respondent/Akram Major detaining them in his illegal custody and neither he has produced them in any Court nor there is any case against them. It is also pertinent to mention here that respondent has demanded Rs. one lac for the release of the detenus on the pretext that in case the money aforesaid is not paid to him he will involve the detenus in false and frivolous cases of Heroin etc." This petition came up before the High Court for hearing on 18‑6‑1990 and the High Court had directed Muhammad Akram S.1. P.W.6 to appear in person before the Court to answer whether the alleged detenus were being detained by him, and if so, under what authority of law. In this view of the matter, reasonable possibility of the plea of false involvement of the appellant on account of filing of the Habeas Petition against Muhammad Akram P.W.6 on 17‑6‑1990 in the Lahore High Court, Lahore is very much there entitling the appellant to the benefit of doubt.

5. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is accepted, and the impugned judgment is set aside. The appellant shall be released forthwith if not required to be detained in any other case. N.H.Q./M‑3063/S Appeal accepted.