1. Ijaz-ul-Hassan, J.--Appellant Rashid Khan son of Chamtar Ali, resident of Mosam Khan Banda, Kohat through instant Criminal Appeal No, 179/2004 has called in question the legality and correctness of judgment dated 11.3.2004, recorded by learned Additional Sessions Judge, Kohat, whereby the appellant has been convicted and sentenced to imprisonment for life under Section 9(c) of the Control of Narcotic Substances Act, 1997 with fine of Rs, 12,000/- or in default of payment of fine to suffer further six months S.I. The appellant has also been convicted and sentenced to two years R.I. under Section 13 of the West Pakistan Arms Ordinance, 1965 with fine of Rs, 6,000/- or in default thereof to undergo further two months S.I. Benefit of Section 382-B Cr.P.C. has been accorded to the appellant. Both the sentences have been directed to run concurrently. The appellant has been, however, acquitted of the charge under Section 5 of the Explosive Substances Act, 1908.
2. 2.Shortly narrated the facts, leading to filing of instant appeal are, that on receipt of a secret information that appellant Rashid Khan, required by the local police in case FIR No, 830 dated 30.11.2001, registered under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, was present in his house situate in Mosam Khan Banda, Kohat and was likely to transport huge quantity of narcotics, to Punjab, a police party headed by PW Lal Farid, the then SHO, Police Station, Saddar Kohat, made a raid at the house of the appellant on 7.2.2002 at 6.30 a.m. and recovered one bundle containing 17 packets of charas, weighing 17 kilo grams, concealed under a box, lying in a residential room of the house. The further search of the house led to recovery of one rifle of 7 MM, one repeater of .12 bore, one shotgun, one rifle of 30-3 bore alongwith 15 live cartridges of the same bore, 13 rounds of 7 MM and 7 dianamites alongwith 14 detonators and 'bath'. A meager quantity i,e, 4 grams each of charas was separated out of the bulk and sent to the office of chemical examiner Peshawar for opinion and the remaining charas was kept in a separate sealed parcel. The accused was formally arrested and a case was registered against him. After completion of investigation, challan was submitted against the accused in Court to which he did not plead guilty and then the trial of the case commenced against the accused.
3. 3.During the trial, prosecution examined 4 witnesses in all to prove its case against the appellant.
4. The appellant examined himself on oath as well as under Section 342 Cr.P.C. In both the statements he denied the prosecution case. Statement of Sadam Muhammad Khan (DW.1) was got recorded by the appellant in support of his plea of his innocence.
5. 4.The learned trial judge, after appraisal of the evidence on record, concluded that prosecution has proved its charge against the accused beyond reasonable doubt. Resultantly, the appellant was convicted and sentenced as mentioned above.
6. 5.Mian Mohibullah Kakakhel, Advocate, learned counsel for the appellant, bitterly criticized the impugned judgment and attempted to argue that the mandatory requirements of law for recovery and search have not been complied with by the prosecution; that the narcotics were not recovered from the personal possession of the appellant; that no evidence has been brought on record that appellant was having conscious knowledge of the same; that despite availability of independent persons only members of raiding party were cited as recovery witnesses and withholding the public witnesses made the recovery doubtful; that the prosecution has also not brought on record any document regarding the complicity of the appellant in the criminal case or that he had been declared proclaimed offender; that the sample obtained has been sent to the Laboratory after delay of 11 days and that the appellant is not exclusively in control of the house. His family and three other brothers also reside in the same house, therefore, appellant is entitled for benefit of doubt on this score as well.
7. 6.Mr. Umer Dad, Advocate, appearing on behalf of the State, supported the impugned judgment, contending that requirement under Section 20 of the Control of Narcotic Substances Act, 1997, for obtaining search warrant is directory in nature. It does not place a mandatory obligation upon the Investigating Agency to obtain search warrant from the Special Judge before conducting a raid, its non-compliance cannot be considered a strong ground for holding that the trial of the caused is bad in the eye of law. He also contended that mere raising plea that some other persons also occupied house which was not in exclusive possession of accused would not exonerate him of liability. The learned counsel added that under Section 29 of the Act, the trial Court is empowered to presume that accused facing the trial is in possession of illicit articles unless and until it is proved to the contrary and that in view of Section 29 of the Act, burden was upon the appellant to have proved that the articles were not recovered from his exclusive possession but someone else residing in the same house was in its possession and that the conviction and sentence awarded to the appellant is perfectly justified and warrants no interference. To substantiate the contentions, reliance was placed on Munir Ahmad vs. The State (2004 PCr.LJ 732) and Nazeem Khan vs. State (2004 PCr.LJ 22).
8. 7.We have heard the arguments and submissions of the learned counsel for the parties at some length in the light of the material on the file and the case cited at the bar.
9. 8.In order to appreciate the contentions of learned counsel for the parties, we consider it appropriate to reproduce below Sections 20 and 21 of the Control of Narcotic Substances Act, 1997, which reads: "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 21. "21. Power of entry, search, seizure and arrest without warrant.--(1) Where an officer, not below the rank of Sub-Inspector of Police or 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 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 any door and remove and other obstacle to such entry in case of resistance; (c)Seize such narcotic drugs, psychotropic substances 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 sub-section (1), the officer referred to in the 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."
9. No doubt, it is true that Section 20 of the Act does not place a mandatory obligation upon the Investigating Agency to obtain search warrants from the Special Judge before conducting a raid and it is directory in nature but it is equally true that in the present case, the Investigating Officer an receipt of information conducted a raid on the house of the appellant and recovered the contraband charas and arms and ammunitions from a residential room of the house, without satisfying the requirement of Section 21 of the Act. The combined study of Sections 20 and 21 of the Act ibid would show that only in exceptional cases in which the search warrant cannot possibly be obtained before conducting the raid, an officer authorized in this behalf can proceed for conduct of raid without the warrant but this power cannot be allowed to be used in every case in the normal circumstances, as held in State vs. Hemjoo (2003 SCMR 881). The Investigating Officer on the information, proceeded to conduct the raid and could conveniently obtain the search warrant from the Court of Special Judge but he having felt no necessity of search warrant, transgressed the authority of law which would make the search of house illegal. Investigating Officer conducting raid on residential building cannot be given free hand to act on his whim and choice. Whenever said officer would make a departure from established procedure provided by ordinary law, he was essentially required to give reasons and grounds for such action in writing either in the FIR itself or in a case diary, as held by this Court in Raees Khan vs. The State (2005 PCr.LJ 76 Peshawar).
10. Needless to emphasize that sub-section (2) of the said provision has placed legal burden on the Investigating Officer to record reasons and grounds for making such opinion and to send a copy of the same to his superior officers. The omission on the part of the Investigating Officer has materially prejudiced interest of the appellant. Admittedly, no search warrant has been obtained in this case and no lady constable has been associated with the recovery proceedings. The irregularity committed is of a nature if not sufficient to vitiate the trial, would create very grave doubts about the honesty and credibility of the entire investigation.
10. Adverting to the next contention of the learned counsel for the appellant, we find that the narcotics and arms and ammunitions were not recovered from the personal possession of the appellant. The prosecution has produced no evidence to prove that the appellant was having conscious knowledge of the same. The prosecution has also not brought on record any document regarding the complicity of the appellant in the criminal case or that he had been declared proclaimed offender. The appellant is not exclusively in control of the house. His family and brothers also reside in the same house. The statement of Sadam Muhammad Khan DW conclusively proves that the house in question is occupied by the appellant and his family members. The statement of this witness is confidence inspiring and merits acceptance. Bashir Ahmad vs. The State (PLD 2005 Peshawar 1), Asmat Fakir vs. The State (PLD 1958 Dacca 419) and Akan alias Akram applicant vs. The State opponent (PLD 1962 (WP) Karachi 270).
11. In the result and for the foregoing reasons, we find that prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. We accept the appeal and set aside the conviction and sentence awarded to the appellant. The appellant shall be released forthwith, if not required in any other case.