PLJ 2008 SC 414
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi; Muhammad Qaim Jan Khan & Muhammad Moosa K. Leghari, JJ.
ARSHAD MAHMOOD--Appellant
versus
STATE--Respondent
Crl. A. No. 313 of 2006, decided on 31.1.2008.
(On appeal from the judgment dated 11.5.2005 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, in Cr. A. No. 482/2002).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 25, 20 & 21--Criminal Procedure Code, (V of 1898), Ss. 98 & 103--Constitution of Pakistan 1973, Art. 14--Raid without search warrants--Whether violative of Constitution--Held: 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 Constitution--Member of concerned agencies, without satisfying the requirement of law cannot enter into residential premises without search warrant. [Pp. 421 & 422] A
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9(c) & 25--Recovery of charas--Conviction and sentence--Appreciation of evidence--Association of Magistrate alongwith raiding party--Validity--Raiding party despite having prior information did not bother to obtain search warrant from a competent Court and conducted raid at the house of appellant without showing any justification--Though Magistrate was in association with the raiding party yet his presence was not sufficient to bypass mandatory provision of law and the Constitution--No evidence on record that house was in exclusive possession of accused--The bag containing charas was found lying in the courtyard of house and his wife/co-accused who had been arrested at the spot, was subsequently acquitted from the charge--Conviction & sentence set aside.
[P. 422 & 423] B, C, D & E
Ch. Muhammad Akram, ASC for Appellant.
Mian Asif Mumtaz, D.P.G. for State.
Date of hearing: 31.1.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court, has been filed against the judgment dated 11.05.2005, passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby a criminal appeal filed by the appellant against the conviction and sentence awarded to him under Section 9(c) of the Control of Narcotic Substances Act, 1997, by the learned trial Court vide judgment dated 24.07.2002, was dismissed.
2. The prosecution case as narrated in the FIR is that on 16.7.2000 at about 9.40 a.m., Muhammad Iqbal, SI (PW-8), alongwith Manzoor Nasir Magistrate, Yasin Farooq, ASP, Arshad Ali, ASI, Abdur Razzaq, LHC and other Police Constables, while present at Chirah Chowk, Islamabad, having received spy information that Arshad Mahmood and his wife, Mst. Sabiha resident of Dhoke Kasota, were keeping charas in their possession raided at their house. Arshad Mahmood on arrival of police party ran away from the spot and was subsequently declared proclaimed offender whereas Mst. Sabiha his wife while present in the courtyard of the house was arrested. The raiding party also took into possession a black colour bag lying on the ground by the side of Mst. Sabiha which contained twenty one packets and each packet was found to have contained 1050 grams of charas. The raiding party having separated 100 grams of charas from each packet, prepared 21 sealed parcels to be sent to the chemical examiner for examination whereas the remaining charas was sealed into separate parcels as case property. The investigating officer having prepared a complaint at the spot, sent it to the police station on the basis of which a case was registered against the accused under Section 9(c) of the Control of Narcotic Substances Act, 1997, and challan was accordingly submitted against them to face the trial before the Special Court established under the ibid Act.
3. The prosecution in support of the charge against the accused, examined 9 witnesses at the trial and accused in their statements under Section 342 Cr.P.C. denying the recovery of charas from their possession pleaded false implication. The learned trial Court on the conclusion of the trial, having formed the opinion that the appellant was guilty of the charge convicted and sentenced him to suffer imprisonment for life with a fine of Rs. 2,00,000/- and in default whereof to undergo SI for six months whereas Mst. Sabiha his co-accused was acquitted. On dismissal of appeal filed by the appellant in the High Court against the conviction and sentence awarded to him by the trial Court he has filed the present appeal before this Court.
4. Leave in this appeal was granted vide order dated 09.05.2006, to consider the following questions:--
(i) Whether the evidence which has come on record has been appreciated in accordance with settled norms of justice and the principles enunciated by this Court qua safe administration of justice in criminal cases?
(ii) What would be the import and impact of the statement of Mr. Manzoor Hussain Nasir (Magistrate) who remained associated with the raid and whose statement was got recorded by the police with an inordinate delay of one and a half month?
(iii) Whether the evidence qua factum of recovery has been examined vigilantly as admittedly recovery was effected from Sobia Bibi the wife of petitioner who according to the prosecution made his escaped good on seeing the police party?
(iv) Why no attempt could be made by the raiding party comprising of 250 personnel duly armed with sophisticated weapons to apprehend the petitioner and amazingly no hot pursuit was made when the petitioner was at a little distance ?
(v) Why no search warrant to conduct the search of the house of petitioner could be obtained from llaqa Magistrate pursuant to secret information received by the police well in time ?
(vi) Whether the grave contradictions floating in the statements of prosecution witnesses have been ignored without any rhyme and reason?
5. Learned counsel for the appellant has contended that the learned trial Court as well as the learned Judges in the High Court have neither properly appreciated the evidence nor have given due consideration to the above question in addition to the following questions of law involved therein:--
(1) The raid conducted at the house of the appellant on the basis of prior information without search warrant was without lawful authority.
(2) In view of the prosecution case that the bag containing charas was recovered from the courtyard of the house of appellant in his absence, the possession of charas lying in the premises of his house could not be attributed to him to raise a legitimate presumption of his guilt.
6. Learned counsel submitted that the evidence brought on record by the prosecution would have no nexus with the charge against the appellant.
7. Mian Asif Mumtaz, learned Deputy Prosecutor General, on the other hand, contended that recovery of charas from the courtyard of the house of appellant was proved through cogent and convincing evidence, therefore, the learned trial Judge rightly having raised a presumption of guilt of the appellant convicted him which was further affirmed by the High Court after detail discussion and scrutiny of the evidence. The learned DPG has submitted that the concurrent finding of two Courts regarding guilt of appellant being not suffering from any legal or factual infirmity may not call for interference of this Court.
8. In consequence to the raid conducted on the house of appellant on 16.7.2000, the. raiding party recovered a bag containing huge quantity of charas from the courtyard of the house. Mst. Sabiha wife of the appellant who was present at home at the relevant time was arrested whereas as per prosecution version appellant before arrival of raiding party slipped away from the spot. In view of the factual position narrated by the prosecution, the essential questions for determination would be (a) whether the raid at the residential house of a citizen in the normal circumstances without search warrant, is not violative of Article 14 of the Constitution which provides that privacy of the house subject to law and dignity of a person cannot be disturbed and in the light of the mandate of Constitution, whether a person including the members of law enforcement agencies is authorized to enter into the residential premises and disturb the privacy of others without the authority of law or permission of inmates, (b) whether entry into the dwelling house without the permission of law is not trespass or the law enforcement agencies enjoy unlimited power to enter into the residential houses of the people any time for the purpose of search without search warrants, (c) whether the presence of a magistrate with raiding party at the time of raid at the house of a person would dispense with the requirement of search warrants and magistrate is invariably authorized to have free access to enter into the residential premises and by his presence, there is no need of statutory requirement of search warrants under the law, the answer to the above question in the plain language of law and the mandate of Constitution is in the negative.
9. The requirement of search warrants under Sections 98 and 103 Cr.P.C is mandatory which can be dispensed with only in exceptional circumstances mentioned thereunder. The above provisions are reproduced hereunder for better appreciation of the intent of law:--
98. Search of house suspected to contain stolen property, forged documents, etc. (1) If a Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property,
or for the deposit or sale of manufacture of forged documents, false seals or counterfeit stamps, [bank notes, currency notes or coins, or instruments or materials for counterfeiting coins stamps, bank notes or currency notes] or for forging;
or that any forged documents, false seals or counterfeit stamps [bank notes, currency notes or coins or instruments or materials used for counterfeiting coins, stamps, bank notes or currency notes] or for forging, are kept or deposited in any place;
or for the deposit, sale, manufacture or production of any obscene objection such as is referred to in Section 292 of the Pakistan Penal Code or that any such obscene objects are kept or deposited in any place;
He may by his warrant authorize any police-officer above the rank of a constable:
(a) to enter, with such assistance as may be required, such place, and
(b) to search the same in manner specified in the warrant, and
(c) to take possession of any property, documents, seals, stamps, [bank notes, currency notes] or coins therein found which he reasonably suspects to be stolen, unlawfully obtained, forged, false or counterfeit, and also of any such instruments and materials or of any such obscene as aforesaid, and
(d) to convey such property, documents, seals, stamps, [bank notes, currency notes], coins, instruments, or materials or such obscene objections before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose thereof in some place of safety, and
(e) to take into custody and carry before a Magistrate every person founding such place who appears to have been privy to the deposit, sale of manufacture or keeping of any such property, documents seals, stamps, [bank notes, currency] notes coins, instruments or materials [or such obscene objects] knowing of having reasonable cause to suspect the said property to have been stolen or otherwise unlawfully obtained, or the said documents, seals, stamps, bank notes, currency notes, coins, instruments or materials, to have been forged, falsified or counterfeited, or the said instruments or materials to have been or to be intended to be used for counterfeiting coin or stamps, bank notes, or currency notes or for forging [or the said obscene objects to have been or to be intended to be sold, let to hire, distributed, publicly exhibited, circulated, imported or exported]
(2)
103. Search to be made in presence of witness. (1) Before making a search under this Chapter, the officer of 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 such search and of the places in which they are respectively found shall be prepared by such officer or other persons and singed by such witnesses; 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) Occupant of place searched may attend. The occupant of the place searched, or some persons 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 witness, shall be delivered to such occupant or persons at his request.
(4) When any person is searched under Section 102, sub-section (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, refuse or neglects to attend and witness a search under this Section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Pakistan Penal Code.
The exception created under Section 25 of CNS Act, 1997, in respect of Section 103 Cr.P.C. is as under:--
25. Mode of making searches and arrest:--The provisions of the Code of Criminal Procedure, 1898, except those of Section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections.
Sections 20 to 21 of CNS Act, 1997, provide as under:--
20. Power to issue Warrants.--(1) A special Court may issue a warrant for the arrest of any person whom it has reason to believe to have committed an offence punishable under this Act, or for the search, whether by day or by night, of any building, place, premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed.
(2) The officer to whom a search warrant under sub-section (1) is addressed shall have all the powers of an officer acting under Section 22.
21. Power of entry, search, seizure and arrest without warrant.--(1) Where an officer, not below the rank of Sub-Inspector of Police equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may:--
(a) enter into any such building, place, premises or conveyance;
(b) break open door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substance and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(d) detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under section (1), the officer referred to in that sub-section shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer.
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 of Cr.P.C as well as under CNS 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 bother 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 of CNS Act, 1997, provided that provision of Section 103 Cr.P.C are not as 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 CNS 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 CNS 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 envisages in Article 14 of the Constitution of Islamic Republic of Pakistan, therefore, the association, of Magistrate in the raid was immaterial.
12. The next question requiring examination would relate to the actual commission of offence. This is an admitted fact that appellant was not present at his house when the raid was conducted and no evidence was brought on record that house was in his exclusive possession and the bag of charas recovered from the Courtyard of his house in his absence would give rise to a legitimate presumption of his possession and guilt. The bag containing the charas was found lying in the courtyard of the house and Mst. Sabiha wife of appellant who was arrested while present in the courtyard was subsequently, acquitted from the charge, therefore, it is not understandable that in the given facts, on what basis and evidence the appellant was held guilty of the charge under Section 9(c) of CNS Act, 1997. It may be observed that notwithstanding the special provision of Section 25 of CNS Act, 1997, the prosecution was under heavy burden to prove the possession of the appellant through direct evidence and mere on the basis of presumption without fulfilling the essential requirement of law and the command of Constitution, no one can be subjected to the rigours of penal law.
13. The learned trial Judge as well as the learned Judges in the High Court in departure to the settled law of criminal administration of justice raised presumption of guilt of the appellant on the basis of hear say evidence and thereby committed gross error of law in awarding the conviction and sentence to the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997.
14. In the light of foregoing reasons, we allow this appeal, set aside the concurrent judgment of conviction and sentence awarded to the appellant by the two Courts and direct his immediate release from jail if not required in any other case. Appeal allowed.
(J.R.) Appeal accepted.
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi; Muhammad Qaim Jan Khan & Muhammad Moosa K. Leghari, JJ.
ARSHAD MAHMOOD--Appellant
versus
STATE--Respondent
Crl. A. No. 313 of 2006, decided on 31.1.2008.
(On appeal from the judgment dated 11.5.2005 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, in Cr. A. No. 482/2002).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 25, 20 & 21--Criminal Procedure Code, (V of 1898), Ss. 98 & 103--Constitution of Pakistan 1973, Art. 14--Raid without search warrants--Whether violative of Constitution--Held: 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 Constitution--Member of concerned agencies, without satisfying the requirement of law cannot enter into residential premises without search warrant. [Pp. 421 & 422] A
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9(c) & 25--Recovery of charas--Conviction and sentence--Appreciation of evidence--Association of Magistrate alongwith raiding party--Validity--Raiding party despite having prior information did not bother to obtain search warrant from a competent Court and conducted raid at the house of appellant without showing any justification--Though Magistrate was in association with the raiding party yet his presence was not sufficient to bypass mandatory provision of law and the Constitution--No evidence on record that house was in exclusive possession of accused--The bag containing charas was found lying in the courtyard of house and his wife/co-accused who had been arrested at the spot, was subsequently acquitted from the charge--Conviction & sentence set aside.
[P. 422 & 423] B, C, D & E
Ch. Muhammad Akram, ASC for Appellant.
Mian Asif Mumtaz, D.P.G. for State.
Date of hearing: 31.1.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court, has been filed against the judgment dated 11.05.2005, passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby a criminal appeal filed by the appellant against the conviction and sentence awarded to him under Section 9(c) of the Control of Narcotic Substances Act, 1997, by the learned trial Court vide judgment dated 24.07.2002, was dismissed.
2. The prosecution case as narrated in the FIR is that on 16.7.2000 at about 9.40 a.m., Muhammad Iqbal, SI (PW-8), alongwith Manzoor Nasir Magistrate, Yasin Farooq, ASP, Arshad Ali, ASI, Abdur Razzaq, LHC and other Police Constables, while present at Chirah Chowk, Islamabad, having received spy information that Arshad Mahmood and his wife, Mst. Sabiha resident of Dhoke Kasota, were keeping charas in their possession raided at their house. Arshad Mahmood on arrival of police party ran away from the spot and was subsequently declared proclaimed offender whereas Mst. Sabiha his wife while present in the courtyard of the house was arrested. The raiding party also took into possession a black colour bag lying on the ground by the side of Mst. Sabiha which contained twenty one packets and each packet was found to have contained 1050 grams of charas. The raiding party having separated 100 grams of charas from each packet, prepared 21 sealed parcels to be sent to the chemical examiner for examination whereas the remaining charas was sealed into separate parcels as case property. The investigating officer having prepared a complaint at the spot, sent it to the police station on the basis of which a case was registered against the accused under Section 9(c) of the Control of Narcotic Substances Act, 1997, and challan was accordingly submitted against them to face the trial before the Special Court established under the ibid Act.
3. The prosecution in support of the charge against the accused, examined 9 witnesses at the trial and accused in their statements under Section 342 Cr.P.C. denying the recovery of charas from their possession pleaded false implication. The learned trial Court on the conclusion of the trial, having formed the opinion that the appellant was guilty of the charge convicted and sentenced him to suffer imprisonment for life with a fine of Rs. 2,00,000/- and in default whereof to undergo SI for six months whereas Mst. Sabiha his co-accused was acquitted. On dismissal of appeal filed by the appellant in the High Court against the conviction and sentence awarded to him by the trial Court he has filed the present appeal before this Court.
4. Leave in this appeal was granted vide order dated 09.05.2006, to consider the following questions:--
(i) Whether the evidence which has come on record has been appreciated in accordance with settled norms of justice and the principles enunciated by this Court qua safe administration of justice in criminal cases?
(ii) What would be the import and impact of the statement of Mr. Manzoor Hussain Nasir (Magistrate) who remained associated with the raid and whose statement was got recorded by the police with an inordinate delay of one and a half month?
(iii) Whether the evidence qua factum of recovery has been examined vigilantly as admittedly recovery was effected from Sobia Bibi the wife of petitioner who according to the prosecution made his escaped good on seeing the police party?
(iv) Why no attempt could be made by the raiding party comprising of 250 personnel duly armed with sophisticated weapons to apprehend the petitioner and amazingly no hot pursuit was made when the petitioner was at a little distance ?
(v) Why no search warrant to conduct the search of the house of petitioner could be obtained from llaqa Magistrate pursuant to secret information received by the police well in time ?
(vi) Whether the grave contradictions floating in the statements of prosecution witnesses have been ignored without any rhyme and reason?
5. Learned counsel for the appellant has contended that the learned trial Court as well as the learned Judges in the High Court have neither properly appreciated the evidence nor have given due consideration to the above question in addition to the following questions of law involved therein:--
(1) The raid conducted at the house of the appellant on the basis of prior information without search warrant was without lawful authority.
(2) In view of the prosecution case that the bag containing charas was recovered from the courtyard of the house of appellant in his absence, the possession of charas lying in the premises of his house could not be attributed to him to raise a legitimate presumption of his guilt.
6. Learned counsel submitted that the evidence brought on record by the prosecution would have no nexus with the charge against the appellant.
7. Mian Asif Mumtaz, learned Deputy Prosecutor General, on the other hand, contended that recovery of charas from the courtyard of the house of appellant was proved through cogent and convincing evidence, therefore, the learned trial Judge rightly having raised a presumption of guilt of the appellant convicted him which was further affirmed by the High Court after detail discussion and scrutiny of the evidence. The learned DPG has submitted that the concurrent finding of two Courts regarding guilt of appellant being not suffering from any legal or factual infirmity may not call for interference of this Court.
8. In consequence to the raid conducted on the house of appellant on 16.7.2000, the. raiding party recovered a bag containing huge quantity of charas from the courtyard of the house. Mst. Sabiha wife of the appellant who was present at home at the relevant time was arrested whereas as per prosecution version appellant before arrival of raiding party slipped away from the spot. In view of the factual position narrated by the prosecution, the essential questions for determination would be (a) whether the raid at the residential house of a citizen in the normal circumstances without search warrant, is not violative of Article 14 of the Constitution which provides that privacy of the house subject to law and dignity of a person cannot be disturbed and in the light of the mandate of Constitution, whether a person including the members of law enforcement agencies is authorized to enter into the residential premises and disturb the privacy of others without the authority of law or permission of inmates, (b) whether entry into the dwelling house without the permission of law is not trespass or the law enforcement agencies enjoy unlimited power to enter into the residential houses of the people any time for the purpose of search without search warrants, (c) whether the presence of a magistrate with raiding party at the time of raid at the house of a person would dispense with the requirement of search warrants and magistrate is invariably authorized to have free access to enter into the residential premises and by his presence, there is no need of statutory requirement of search warrants under the law, the answer to the above question in the plain language of law and the mandate of Constitution is in the negative.
9. The requirement of search warrants under Sections 98 and 103 Cr.P.C is mandatory which can be dispensed with only in exceptional circumstances mentioned thereunder. The above provisions are reproduced hereunder for better appreciation of the intent of law:--
98. Search of house suspected to contain stolen property, forged documents, etc. (1) If a Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property,
or for the deposit or sale of manufacture of forged documents, false seals or counterfeit stamps, [bank notes, currency notes or coins, or instruments or materials for counterfeiting coins stamps, bank notes or currency notes] or for forging;
or that any forged documents, false seals or counterfeit stamps [bank notes, currency notes or coins or instruments or materials used for counterfeiting coins, stamps, bank notes or currency notes] or for forging, are kept or deposited in any place;
or for the deposit, sale, manufacture or production of any obscene objection such as is referred to in Section 292 of the Pakistan Penal Code or that any such obscene objects are kept or deposited in any place;
He may by his warrant authorize any police-officer above the rank of a constable:
(a) to enter, with such assistance as may be required, such place, and
(b) to search the same in manner specified in the warrant, and
(c) to take possession of any property, documents, seals, stamps, [bank notes, currency notes] or coins therein found which he reasonably suspects to be stolen, unlawfully obtained, forged, false or counterfeit, and also of any such instruments and materials or of any such obscene as aforesaid, and
(d) to convey such property, documents, seals, stamps, [bank notes, currency notes], coins, instruments, or materials or such obscene objections before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose thereof in some place of safety, and
(e) to take into custody and carry before a Magistrate every person founding such place who appears to have been privy to the deposit, sale of manufacture or keeping of any such property, documents seals, stamps, [bank notes, currency] notes coins, instruments or materials [or such obscene objects] knowing of having reasonable cause to suspect the said property to have been stolen or otherwise unlawfully obtained, or the said documents, seals, stamps, bank notes, currency notes, coins, instruments or materials, to have been forged, falsified or counterfeited, or the said instruments or materials to have been or to be intended to be used for counterfeiting coin or stamps, bank notes, or currency notes or for forging [or the said obscene objects to have been or to be intended to be sold, let to hire, distributed, publicly exhibited, circulated, imported or exported]
(2)
103. Search to be made in presence of witness. (1) Before making a search under this Chapter, the officer of 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 such search and of the places in which they are respectively found shall be prepared by such officer or other persons and singed by such witnesses; 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) Occupant of place searched may attend. The occupant of the place searched, or some persons 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 witness, shall be delivered to such occupant or persons at his request.
(4) When any person is searched under Section 102, sub-section (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, refuse or neglects to attend and witness a search under this Section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Pakistan Penal Code.
The exception created under Section 25 of CNS Act, 1997, in respect of Section 103 Cr.P.C. is as under:--
25. Mode of making searches and arrest:--The provisions of the Code of Criminal Procedure, 1898, except those of Section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections.
Sections 20 to 21 of CNS Act, 1997, provide as under:--
20. Power to issue Warrants.--(1) A special Court may issue a warrant for the arrest of any person whom it has reason to believe to have committed an offence punishable under this Act, or for the search, whether by day or by night, of any building, place, premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed.
(2) The officer to whom a search warrant under sub-section (1) is addressed shall have all the powers of an officer acting under Section 22.
21. Power of entry, search, seizure and arrest without warrant.--(1) Where an officer, not below the rank of Sub-Inspector of Police equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may:--
(a) enter into any such building, place, premises or conveyance;
(b) break open door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substance and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(d) detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under section (1), the officer referred to in that sub-section shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer.
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 of Cr.P.C as well as under CNS 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 bother 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 of CNS Act, 1997, provided that provision of Section 103 Cr.P.C are not as 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 CNS 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 CNS 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 envisages in Article 14 of the Constitution of Islamic Republic of Pakistan, therefore, the association, of Magistrate in the raid was immaterial.
12. The next question requiring examination would relate to the actual commission of offence. This is an admitted fact that appellant was not present at his house when the raid was conducted and no evidence was brought on record that house was in his exclusive possession and the bag of charas recovered from the Courtyard of his house in his absence would give rise to a legitimate presumption of his possession and guilt. The bag containing the charas was found lying in the courtyard of the house and Mst. Sabiha wife of appellant who was arrested while present in the courtyard was subsequently, acquitted from the charge, therefore, it is not understandable that in the given facts, on what basis and evidence the appellant was held guilty of the charge under Section 9(c) of CNS Act, 1997. It may be observed that notwithstanding the special provision of Section 25 of CNS Act, 1997, the prosecution was under heavy burden to prove the possession of the appellant through direct evidence and mere on the basis of presumption without fulfilling the essential requirement of law and the command of Constitution, no one can be subjected to the rigours of penal law.
13. The learned trial Judge as well as the learned Judges in the High Court in departure to the settled law of criminal administration of justice raised presumption of guilt of the appellant on the basis of hear say evidence and thereby committed gross error of law in awarding the conviction and sentence to the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997.
14. In the light of foregoing reasons, we allow this appeal, set aside the concurrent judgment of conviction and sentence awarded to the appellant by the two Courts and direct his immediate release from jail if not required in any other case. Appeal allowed.
(J.R.) Appeal accepted.
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