' Having been found in possession of contraband "heroin" weighing 70 grams, charged under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 as per F.I.R. No,72, dated 14-2-1994 of Police Station Rustam, District Mardan, the accused Muhammad Aqil son of Bostan of Kata Khat was tried, found guilty under Article 4 of the Order and sentenced to imprisonment for two years and a fine of Rs,10,000 by the learned Sessions Judge, Mardan through his judgment, dated 23-1-1995. His appeal before the Federal Shariat Court, considered non-maintainable, has been sent to this Court.
2. Jehanzeb, A.S.I. Police Post Char Gulli, on 14-2-1994 at 7-00 hours alongwith other party was conducting round of the area in order to arrest Proclaimed Offenders. At the above hour he was at village Kata Khat when informed by the informer that a Proclaimed Offender named Muhammad Iqbal involved in a murder case F.I.R. No,396, dated 22-2-1993 of Police Station Rustam was available in the house of Muhammad Aqil the present appellant. He raided the house of Muhammad Aqil, found no proclaimed offender but recovered 70 grams of "heroin" from the personal search of Muhammad Aqil conducted in his own house.
3. The informer might have a few privileges to be enjoyed before the police but when it comes to the infringement of the legal or vested right of a citizen, the law has to take its own course. There is not a word on judicial record wherefrom one could infer that Jehanzeb A.S.I. Had collected such evidence giving strong presumption of the commission of offence that he could take cognizance there and then. On mere information of an informer which is never recorded anywhere and which informer cannot be subsequently proceeded against for giving false information, no Police Officer has the authority to take cognizance of an offence even if cognizable and to violate the privacy of a citizen by entering into his house and by not giving any notice to the female inmates of the house. As stated earlier, there is not a word of evidence on record to strongly presume the presence of a proclaimed offender in the house of the appellant. The entry of A.S.I. Jehanzeb in the house of appellant is, therefore, not only illegal but culpable.
4. Without any forceful reason or strong circumstances suggesting the presence of a proclaimed offender in the house of the appellant, other than the version of an informer, the Police Officer had no authority to enter the house. So far as the circumstances go, they are against the Investigating Officer because the very house of Muhammad Iqbal proclaimed offender was located near to the house of the appellant and there was no sense in visiting the appellant at such early hours of a cold morning of February. This is truly inferred because the proclaimed offender was in fact not found there. It stands provd that the A.S.I. Had entered the house of Muhammad Aqil at a false pretext of arresting a proclaimed offender.
5. Coming to the provisions of Prohibition (Enforcement of Hadd) Order, 1979, no cognizance of an offence under Article 4 of the Prohibition Order can be taken under Article 16 thereof if the offence is committed not in a public place. The appellant was rather attacked by the police party inside the 'Kotha" of his house. It could be done only after obtaining a warrant under Article 22 of the Order, which was never obtained. This also makes the entry as well as the search and the recovery illegal.
6. While searching a place like the house in question it is mandatory for a Police Officer under section 103, Cr.P.C. To associate two respectable inhabitants of the locality as witnesses to the search about to be conducted. Admittedly, no respectable inhabitants of village Kata Khat were associated as witnesses. Adding insult to the injury was, that all the police party was inside the house violating the privacy as well as "Pardah" of female inmates of the house as if they had conquerred the house whereas, admittedly, the people of the village were present outside. The recovery, therefore, is not only violative of section 103, Cr.P.C. But the very entry into the house of appellant was a glaring misuse of power.
7. The appeal is accepted, the impugned conviction and sentence recorded on 23-1-1995 is set aside and the appellant Muhammad Aqil is hereby acquitted of the charge under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. If not wanted to be detained in any other cause, the appellant is directed to be released forthwith.