' Appellant Tauheed was already under police custody on 29-1-1993 in Police Station Renala Khurd for an offence of narcotics when he further disclosed to Asghar Ali A.S.I./I.O. That he had some more narcotics concealed in a room continuous to a water mill installed on the canal and that he could help in its recovery. Thereupon the said A.S.I. Arranged a police party and proceeded to the spot at 10-50 hours. The appellant took the police party inside the aforementioned room from where the A.S.I. Recovered 150 grams of heroin. The recovery memo. Was attested by P.W.3 Munawar Taj, F.C.
The Investigating Officer again arrested the appellant in the said case and sent written complaint to Police Station Renala Khurd where F.I.R. No,35/93 was recorded.
2. After investigation the appellant was sent up for trial before Mr. Mahmood Maqbool Bajwa, Civil Judge/Magistrate 1st Class, Okara, who charged him under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 to which the appellant pleaded not guilty and claimed trial.
3. 4 witnesses were produced by the State in proof of the prosecution case. The appellant made a deposition under section 342, Cr.P.C. He also produced 3 defence witnesses and also record of other cases which had been registered against him in the same police station during the same period. The contention of the appellant was that he had some enmity with a tout of police named Shakir Akbar and for that reason he had been involved in 4 false cases. He produced copies of those F.I.Rs, Exh.D.D. Is copy of F.I.R. No,252 recorded on 20-11-1992, Exh.D.E. Copy of F.I.R. 276 recorded on 10-11-1992, Exh.D.F. Copy of F.I.R. No,194 recorded on 11-7-1992 some against him personally and some against his employer Sardar Gujar.
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 3 years, to suffer 20 stripes and to pay a fine of Rs,15,000 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. The learned counsel for the appellant raised two contentions before me; firstly, that on account of enmity with a tout of police false cases were made against the appellant and his employer, and secondly, there was noncompliance of the provisions of section 103, Cr.P.C. In carrying out search of the premises pointed by the appellant.
6. In so far as the first contention of the learned counsel for the appellant is concerned enough material was brought on the record to show that many cases were registered against the appellant one after the other in a short period. It is also a fact that he was already under police custody when the present case was registered against him. In so far as the second point is concerned, it is a fact that the Investigating Officer did not associate two respectable persons of the locality for carrying out search of the premises allegedly disclosed by the appellant thus violating the mandatory provisions of section 103, Cr.P.C. The search was, therefore, illegal and invalid.
7. For the aforesaid reasons the appeal is accepted. The conviction and sentence of appellant Tauheed son of Shabeer Ahmad recorded on 10-4-1994 by the learned Civil Judge/Magistrate, Okara are set aside. 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.