Abdul Hameed Dogar, J.--Petitioner through this jail petition has challenged the judgment dated 26.4.2005 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 125 of 2004 filed by him was dismissed.
2. The facts in brief as narrated by complainant Muzaffar Hussain, ASI in FIR No. 158 of 2001 dated 21.8.2001 at Police Station Lahori Gate, Multan registered under Section 9-C of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as the the Act') are that on 21.8.2001 he was on patrolling duty along with Ghulam Sarwar, ASI, Muhammad Ramzan, ASI and other police officials and when reached near Alrehman Motors Khanewal Road, Multan, a spy information was received that petitioner Muhammad Akram was selling Narcotics in front of his house situated in Street No. 12 Sarai Wazir Khan. On this he along with other police officials conducted raid and apprehended the petitioner who was holding a white cloth bag. On search 13 bags each weighing 1 kilogram of charas were recovered. 10 grams from each bag were separated and sealed into parcel for chemical examination and a case under Section 9-C of the Act was registered against petitioner. After completion of investigation petitioner was sent unto face trial.
3. Prosecution in order to prove its case examined Abdul Ghafoor (PW-1), Allah Ditta. (PW-2), Muhammad Ramzan, ASI (PW-3), Ghulam Samar, ASI (PW-4) and Muzaffar Hussain, ASI (PW-5).
4. In his statement recorded under Section 342 Cr.P.C. petitioner denied the charge and pleaded false implication. He neither opted to record statement on Oath as required under Section 340(2)
Cr.P.C. nor led any evidence in his defence.
5. On the conclusion of trial petitioner was convicted and sentenced under Section 9-C of the Act to suffer life imprisonment with fine of Rs. 100,000/- or in default thereof to further undergo RI for one year. However, benefit of Section 382-B Cr.P.C. was extended in his favour.
6. Feeling aggrieved petitioner filed Criminal Appeal No. 125 of 2004 before learned Lahore High Court, Lahore which was dismissed vide impugned judgment.
7. This petition is barred by 5 days, but being criminal matter and sent through jail, the delay is condoned.
8. We have heard Sardar Muhammad Siddique Khan, learned counsel for the petitioner, Ms. Nahida Mehboob Ellahi, learned DAG, Ms. Afshan Ghazanfar, learned AAG Punjab and Ch. Munir Sadiq, learned DPG Punjab at length and have gone through the record and proceedings of the case in minute particulars.
9. Learned counsel for the petitioner vehemently contended that in the instant case raid was conducted by an Assistant Sub Inspector of Police (hereinafter referred to as "ASI") in violation of provisions of Section 21 of the Act whereby an officer not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or Provincial Government, could enter into any building, place, premises and seize such narcotics drugs. He further contended that after the registration of the case, the above defect was not removed rather the investigation was conducted by another ASI, thus entire proceedings stands vitiated. In support of his contention he relied upon the case reported as Raees Khan Vs. The State (2005 P.Cr.L.J. 76) and State through AG Sindh Vs. Hemjoo (2003 SCM R 881)
10.On the other hand, learned counsel appearing on behalf of State supported the impugned judgment and contended that petitioner was standing in front of his house and the raiding party did not enter the house. She further contended that Section 21 of the Act itself authorizes the police officer in exceptional cases to proceed and conduct the raid without the warrants. According to her the complainant proceeded on spy information and if he had waited for obtaining the warrants the petitioner would have left the place and no purpose could have been achieved, as such an ASI was justified in searching the accused outside the house without warrants.
11.Since in this case raid was conducted by an ASI as such it would be appropriate to examine as to whetheran ASI can conduct raid, which as argued above, if so conducted, would be in violation of provisions of Section 21 of the Act. Therefore, it would be appropriate to reproduce Section 21 of the Act which reads asunder:-- "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 autholized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to by any person is of opinion that any narcotics, drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept and concealed in any building, place, premises or conveyance, and a warrant of 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 any other obstacle to such entry in case of resistance; (c)seize such narcotics 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 who he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under s'ub-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.
On bare perusal of above provisions of law, it is clear that Section 21 of the Act is not applicable in the facts and circumstances of the case in hand for the reason that complainant Muzaffar Hussain, ASI who was on patrolling duty along with other police officials received information that petitioner was selling narcotics in Street No. 12 situated in Sarai Wazir Khan in front of his house. Whereas the requirements of provisions of Section 21 of the Act are that an officer not below the rank of Sub- Inspector can enter; search and seize any narcotics drug, psychotropic substance or controlled substance kept or concealed in any building, place, premises of conveyance without any warrant, if he is of the opinion that said information is credible. While in the present case raid was conducted and search of petitioner was made in a street which is thoroughfare and is a public place. Public place as defined in explanation of Section 22 of the Act include any public conveyance, hotel, shop or any other place contended for use by, or accessible to the public. The word public place has also been defined in Prohibition (Enforcement of Hadd) Order, 1979 as under:-- "Public Place" means a street, road, thoroughfare, park, garden, or other place to which the public have free access and includes a hotel, restaurant, motel, mess and club, but does not include the residential room of a hotel in the occupation of some person."
12. The requirement to obtain search warrant can be dispensed with in cases where a quick action is required to be taken and it would be difficult to obtain search warrant where due to paucity of time the apprehension of narcotics being removed or culprits having chance to escape are eminent. If said ASI had gone for obtaining search warrant there was likelihood of petitioner having escaped away and was thus justified in conducting raid, search and seizure of huge quantity of narcotics without warrant. This Court in the case of Karl John Joseph Vs. The State (PLD 2004 SC 394) held that requirement of search warrant could be dispensed with if the same could not be possibly obtained from the Court before conducting the search. It was also held in the case of Fida Jan Vs. The State (2001 SCM R 36) that provisions of Section 20 of the Act being directory in nature and non-compliance thereof cannot be considered a strong ground for making the trial of the accused bad in the eye of law.
13.The facts in the case of State through AG Sindh referred supra are distinguishable as in that case raid was conducted by an Excise Inspector on receipt of information inside the house without fulfilling the requirements of Section 21 of the Act though he could conveniently obtain the search warrant from the Special Court.
14.The case of Raees Khan referred supra will also not support the petitioner as in that case raid was conducted by Inspector without search warrants inside the house without giving reasons and grounds for such action in writing either in the FIR itself or in the case diary and such an omission makes departure from the established procedure prescribed for the same.
15.In his statement recorded under Section 342 Cr.P.C. though petitioner pleaded false implication but no evidence was produced to substantiate his stance.
16. The prosecution has proved the case against petitioner without any iota of doubt. A huge quantity of charas was recovered from him and the report of Chemical Examiner is also found in positive. The witnesses have deposed against petitioner and their testimonies remained unshattered despite lengthy cross-examination. Learned counsel though argued at length, yet could not point out any misreading or non-reading of evidence warranting interference by this Court. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.