Appellant Ashiq Hussain was already under police custody on 31-12-1992 in connection with case of F.I.R. No.253 recorded on the said date for an offence under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 when he disclosed to Hafiz-ur-Rehman A.S.I. Of Police Station Sahiwal, District Sargodha that he had some more heroin concealed in his house. Thereupon, the said A.S.I.
Arranged a police party and raided the house of the appellant at 15-00 hours. The appellant took the police party in the residential room of his house and brought out a polythene bag from a box lying therein which contained heroin. The A.S.I. Weighed the powder which came to 499 grams. The said A.S.I. Separated 10 grams from the bulk powder for chemical analysis, prepared two separate parcels and also sent written complaint to police station for registration of the case.
2. After investigation the appellant was sent up for trial before Mr. Safdar Hussain, Magistrate 1st Class with powers under section 30, Cr.P.C. Shahpur, District Sargodha who charged him under Article 4 of the Prohibition Order to which he pleaded not guilty and claimed trial.
3. During the trial 5 witnesses were examined by the State in proof of the prosecution case. The appellant made a deposition under section 342, Cr.P.C. But he neither produced any defence nor made any deposition on oath. The sample sent to the Chemical Examiner was found to be heroin which could cause intoxication.
4. After the conclusion of the trial the learned Magistrate convicted the appellant under Article 4 of the Prohibition Order and sentenced him to undergo rigorous imprisonment for 4 years, to suffer 15 stripes and to pay a fine of Rs.10,000 or in default to further undergo rigorous imprisonment for 6 months. The convict has challenged his conviction and sentence by the appeal in hand.
5. I have heard learned counsel for the appellant at length who also led me through record of the case.
6. The learned counsel for the appellant contended that the house of the appellant, from where the aforesaid heroin powder was recovered, was not a public place and the complainant A.S.I. Had carried out raid thereon without obtaining a search warrant and had thus committed an illegality in terms of Article 22 of the Prohibition Order. The second limb of arguments of the learned counsel for the appellant was that the complainant A.S.I. Had carried out search of the premises of the appellant without associating two persons of the locality and had also committed violation of section 103, Cr.P.C.
7. I have very anxiously considered both these contentions of the learned counsel. In so far as the first objection of the learned counsel is concerned, it would be of benefit to reproduce the provisions of Article 22 of the Prohibition Order, which are as follows:-- "Article 22. Issue of search warrants.---(1) If any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still utensil, implement or apparatus in respect of which the alleged offence has been committed.
(2) Any person who has been entrusted with the execution of such a warrant may detain and search and, if he thinks, proper, but subject to the provisions of clause (1) of Article 12, arrest any person found in the place searched, if he has reason to believe such person to be guilty of an offence under Article 3, Article 4, Article 8 or Article 11."
The minute perusal of the aforesaid circumstances will clearly indicate that if any search is to be carried out in any premises for the recovery of any narcotic then search warrant has to be specifically obtained. The clear intent of aforesaid provisions of Article 22 is that no search shall be carried out without the authority of a search warrant. This is a mandatory provision of law. No search warrant was either referred to by the Investigating Officer or was produced in evidence to show that before invading the premises of the appellant for the purpose of carrying out the search, he had obtained a search warrant.
8. In so far as the second objection of the learned counsel is concerned, it is also a fact that no witness of the locality was associated with the search of the premises of the appellant and there was thus a` clear violation of the provisions of section 103, Cr.P.C.
9. It is a well-settled principle of law that if a particular procedure for doing anything or-for taking any action is prescribed by law then it has to be strictly followed and adhered to and thing done or action taken has to be in accordance with the said prescribed procedure otherwise the thing done or the action taken would be a violation of the provisions of the law and it would be a nullity in the eyes of law. Such thing done or action taken would not be considered to have been done or taken at all. Many cases have come to the notice of this Court where premises were raided without the sanction of a search warrant and without associating two persons of the locality. The factum of attestation of recovery memos by police officials alone prepared after been taken in obedience thereof. The Investigating Officers in such a situation are bound to carry out the intention of law to the last word.
10. Since the Investigating Officer had committed an illegality in the procedure in violation of the provisions of Article 22 of the Prohibition Order and section 103, Cr.P.C. The whole exercise of recovery of any narcotic from the premises of the appellant had become nullity in the eyes of law.
For the aforesaid reasons the appeal is accepted. The conviction and sentence of the appellant recorded on 30-6-1994 by the learned Magistrate 1st Class, Shahpur are set aside and he is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case.