' KHURSHID ANWAR BHINDER, J.---Sher Khan appellant was convicted under section 9(c) of the C.N.S.A. 1997 by the learned Additional Sessions Judge, Mandi Baha-ud-Din vide judgment dated 17-12-2002, in case F.I.R. No,98 dated 20-3-2002, registered under section 9(c) of the C.N.S.A. 1997 at police station Saddar Mandi Bahaud-Din and sentenced to five years' R.I. With a fine of Rs,50,000 and in default of payment of fine to further undergo one year's S.I. By the same judgment Aman,Ullah Khan co-accused of the appellant was convicted under section 9(c) of the C.N.S.A. 1997 and was sentenced to fourteen years along with fine of Rs,2,00,000 and in default thereof to further undergo S.I. For three years.
2. Briefly the prosecution case is that Riaz Hussain, 5.-I. On 20-3-2002 conducted raid along with other police officials upon the rented house of Amanullah and Sher Khan on the pointation of Muhammad Anwar accused of case F.I.R. No,97 of 2002 registered against him under section 9(c) of the C.N.S.A., 1997. At Police Station Saddar Mandi Baha-ud-Din and apprehended Aman Ullah co- accused of the appellant but Sher Khan appellant fled away on receiving the information about the police. Aman Ullah co-accused of the appellant got recovered a brief-case containing chars weighing 2 kilograms.
3. After usual investigation the challan was submitted in the trial Court by the police where the appellant along with his co-accused was charge-sheeted to which he did not plead guilty and the prosecution produced as many as four witnesses to prove its case. Muhammad Yousaf HC P.W. 1 deposed that he recorded formal F.I.R. Exh.PA on the basis of complaint Exh.PA/1. He also deposed about the safe custody of sealed parcels containing chars in the malkhana of the police station.
Fateh Muhammad A.S.-I. P.W.-2 is the witness of recovery. Javed Iqbal constable P.W.3 transmitted the sealed parcel containing chars to the office of Chemical Examiner, Lahore. Riaz Hussain SI/complainant appeared as P.W.-4 and reiterated the contents of the F.I.R., proved the recovery of chars and investigated the case. The learned DDA after tendering in evidence report of the Chemical Examiner Exh.PD closed the case for prosecution.
4. After conclusion of the prosecution evidence, the appellant and his co-accused were examined under section 342, Cr.P.C. By the learned trial Court and in answer to question No,5 he stated that he is innocent and the P.Ws. Who are police officials have deposed falsely and mala finely against him. He neither appeared as his own witness under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
5. Learned counsel for the appellant submits that since the alleged narcotics was not recovered from the physical possession of the appellant, therefore, the learned trial Court has illegally convicted the appellant. He further submits that the police have violated sections 103 and 105, Cr.P.C. While conducting raid by not seeking permission of the Magistrate Ist Class and obtaining search warrants and also by not associating the public witnesses from the locality at the time of raid.
6. Learned Additional Prosecutor-General for the State has supported the impugned judgment while submitting that the prosecution has proved its case beyond any reasonable shadow of doubt against the appellant though no recovery was effected from his physical possession but he managed to run away from the spot and was duly identified by the P. Ws. While running from the spot, as such, he does not deserve acquittal.
7. We have heard the learned counsel for the parties and have also perused the record. The house in which the appellant was putting up was a rented house meaning thereby that the police had conducted illegal raid at the house of the appellant without obtaining search warrants from the Magistrate 1st Class as enunciated in section 105, Cr.P.C. As well as Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979. Reference in this behalf is made to Arshad Zubair v. The State 1993 SCM R 2059 and Shankar v. The State 1996 PCr.LJ 65L
8. As far as the recovery procedure is concerned, police had not fulfilled the requirements of section 103, Cr.PC by associating any independent person of the locality as public witness in the recovery process, therefore, the entire recovery process carried out by the police is based on their mala fides. In this respect reference can be made to Aziz Ahmad v. The State 1995 M LD 1134, Ghulam Muhammad v. The State 1997 PCr.LJ 805 and Abdul Majeed v. State 1996 PCr.LJ 309.
9. Above all, recovery of Chars has not directly been effected from the appellant as there is sufficient evidence on record which proved the fact that the appellant had already fled away from his place of residence before arrival of the police, therefore, he cannot be held liable to be in possession of the alleged narcotics.
10. For the foregoing reasons, we are convinced that the appellant had been involved in this case mala finely by the police, resultantly we allow this appeal, set aside the conviction and sentence and acquit the appellant from the charge. He shall be released forthwith if not required in any other case.