1. ' This judgment will dispose of Criminal Appeals Nos. 209 of 1987 and 210 of 1987 as they arise from a common judgment dated 29th September, 1987, passed by the Sessions Judge, Sanghar and raised common questions of law and fact. The learned Sessions Judge found the appellant guilty under section 43(3) of Sindh Abkari Act and sentenced him to undergo R.I. For four years and to pay a fine of Rs,20,000 or in default to undergo R.I. For six months more. He also found the appellant guilty under section 9 of Opium Act and sentenced him to undergo R.I. For two years and to pay a fine of Rs,500 or in default to undergo R.I. For three months more. The appellant has challenged his conviction and sentences through the present appeals.
2. ' The prosecution case is that the Excise Inspector, Sanghar received spy information that the appellant deals in contraband Charas and opium in his house located in Nizamani Para in the Town of Sanghar. The Excise Inspector arranged for Excise Intelligence Staff, Hyderabad consisting of Messrs Muhammad Nawaz, Parwaiz Ahmed Kehar, Fateh Muhammad and others. The Excise Staff on 31-12-1986 at about 9-00 a.m. Raided the house of the appellant. According to Excise Inspector, Sanghar, he picked up Mashirs Muhammad Yaqoob and A.S.I. Ghulam and entered into the house of the appellant. They found appellant sitting inside the room of the house and after observing necessary formalities of law, he took personal search of appellant in presence of Mashirs and secured a small handkerchief from the fold of the Shalwar of appellant wherein pieces of Charas weighing 30 grams were found. On further search of the house of the appellant, appellant voluntarily produced a cloth bag which was lying on the table inside the room. The cloth bag was opened and big and small pieces of Charas weighed 5 Kgs. Were found in it. The said hag also contained a packet wrapped in plastic paper. The big and small pieces of Charas were found wrapped in plastic papers. The Excise Inspector also found opium weighed 1-1/2 Kgs. Wrapped in the said plastic paper. According to Excise Inspector there was one small weighing scale which smelled Charas and opium. There were also two weights of 20 and 10 Tolas. Two note-books were also found in the room in which sale account was maintained. These all articles were secured and sealed by the Excise Inspector, Sanghar in presence of Mashirs and such Mashirnama was prepared in presence of Mashirs on the spot. The signatures of Excise Inspector from Hyderabad were also taken on the Mashirnama as attesting witness. Mashirs Muhammad Yaqoob and Ghulam Ali also signed the Mashirnama of recoveries. The appellant was arrested. The Excise Inspector, Sanghar brought the appellant and the property at the Excise Office where he lodged the F.I.Rs, being No,23 of 1986 and 24 of 1986. After usual investigation the appellant was sent up to stand trial before the Sessions Judge, Sanghar and the appellant was convicted and sentenced as stated in the earlier part of this judgment.
3. ' Mr. A.Q. Halepota, the learned counsel for the appellant raised the following contentions:--
(1) No expert witness was examined by the prosecution to prove that Charas and opium recovered from the appellant were Charas and opium. In support of his contention, reliance is placed on the following decisions:--
(1) PLD 1981 Kar. 195;
(2) 1982 P Cr. L J 840;
(3) 1984 P Cr. L J 2342;
(4) 1985 P Cr. L J 8 and
(5) 1985 P Cr. L J 1826.
4. ' Aman under orders of Assistant Commissioner and Deputy Commissioner for indefinite period--- Ladies, after their detention orders, were never summoned or produced before the said authorities for further orders---Assistant Commissioner or Deputy Commissioner, held, had no authority to send the women to Darul Aman without their consent and even with their consent the ladies could not be detained for more than 15 days at a time---Assistant Commissioner and Deputy Commissioner had prima facie misused their authority and were guilty of wrongful confinement--- Notices were issued against said officers to show under what authority they had sent the two women to Darul Aman---Incharge Darul Aman was under no legal obligation to comply with an obviously illegal order otherwise he could also not escape penal liability. [p. 1148] A & B JUDGMENT ' Letter marked 'N' has been received through post. Let it be placed on the file of this case. It is a matter of pleasure that the efforts made by Ansar Burney Welfare Trust for tracing out the relatives of deaf and dumb woman namely Mst. Mumtaz Begum have borne fruit and she has safely reached home. The service which is being rendered by Ansar Burney Welfare Trust to the humanity is really appreciable. On 5-10-1987, Assistant Commissioner Khanpur had sent Mst. Mumtaz Begum, a deaf and dumb lady to Darul Aman Bahawalpur for an indefinite period. She remained there for about two years. Another deaf and dumb lady Mst. Hanifan remained confined for more than 10 years under the order dated 19-9-1980 of the then Deputy Commissioner/District Magistrate, Bahawalpur. Neither the learned A.C., Khanpur nor the learned Deputy Commissioner, Bahawalpur, were authorized by the law of land to send or keep them in Darul Aman for indefinite time. They had no legal authority to send the women against their consent to Darul Aman. They could not keep them in Darul Aman even with their consent for period exceeding 15 days at a time. Law views with disfavor unlawful detention even for a moment. Strangely after their admission in Darul Aman, the aforesaid women were neither forwarded to Deputy Commissioner/Assistant Commissioner for further orders nor were they summoned by the D.C./A.C. A person accused of a murder cannot be detained A for a period exceeding 15 days at a time, then how could the two women be kept in Darul Aman for such a long time under a single order. It is an unfortunate matter. Deputy Commissioner, Bahawalpur and Assistant Commissioner, Khanpur have prima facie misused their authority and are guilty of wrongful confinement. It is necessary in the interest of effective administration of justice to proceed against them. Let notices be issued directing them to appear before the Court to show under what authority of law they had sent the two women for an indefinite period to Darul Aman, Bahawalpur. Deputy Registrar of this Court will find out the names of the then Deputy Commissioner, Bahawalpur and Assistant Commissioner, Khanpur, and will issue notices to them for next date that the Magistrates/Assistant Commissioners/District Magistrates/Sessions.
5. It has already been observed by this Court in several case Judges/Additional Sessions Judges have no authority under the law to send and to keep a woman against her consent in Darul Aman.
6. In any case, no single order for her detention even with her willingness should be passed for a period exceeding 15' days. On expiry of 15 days, Incharge Darul Aman must produce them before the Officer concerned -for further orders. As for Darul Aman Authorities, they are under no legal obligation to receive/detain a woman in compliance with illegal orders. If the order is obviously illegal then Darul Aman Authorities would be justified in refusing to execute such orders. Otherwise they cannot escapee consequential penal liability of wrongful confinement.
3. To come up on 30-10-1989.
7. Notices issued.