1. ' By this common judgment, I intend to dispose of these two matters as they are identical and the facts and law involved in the case is the same.
2. ' Briefly the facts are that on 8-1-1995 one Muhammad Ayub Durrani, S. I. P. As S.H.O., Police Station, Fort, Hyderabad registered two F.I.Rs, at Cantonment Police Station, Hyderabad being Crimes Nos.4 and 5 of 1995 under sections 13-A, 13-B, 16-B and 13-E of the Arms Ordinance. According to the prosecution case as disclosed in the F.I.R. Co-accused Muhammad Zafar had been arrested by Fort Police in Crime No,2 of 1995 under section 13-D of Arms Ordinance for possessing illicit arms and was kept in police lock-up. The said co-accused during interrogation in the case F.I.R. No,2 of 1995 of Police Station Fort, Hyderabad disclosed that he had purchased the weapons recovered from him from Al-Haider Armoury, Saddar Bazar, Hyderabad through the owners Murtaza Husain and Mazhair Hussain and also from Saleem Armory whose owners are Amir Saleem and Mustansur Husain and their servant Abdul Sattar, who all are the present applicants. The said co-accused is further alleged to have disclosed that he had purchased, more weapons, details of which are mentioned in the F.I.R., from the said two shops and their owners and that the numbers of those weapons were erased and these weapons are kept in respective cloth bags at the two Armory stores. On this, the S.H.O. Fort Police Station taking two persons to act as Mashirs and other police personnel with him raided the two Armory stores, namely, Al-Haider Armoury and Saleem Armory and allegedly recovered the said weapons from the cloth bags and arrested the present applicants as they could not show any license for the said weapons nor any such entries were made in their books. According to the F.I.R., the applicants and the recovered arms and ammunition were brought to the police station and two separate F.I.Rs, as above were registered.
3. After usual investigation, the case was sent up for trial before the Judicial Magistrate-I, Hyderabad.
4. It is in these circumstances that the present applicants have moved ,these applications under section 561-A, Cr.P.C. Praying for abashment of the proceedings pending before the said Court against them.
5. ' I have heard Mr. Nawab Mina, learned counsel for the applicants and Mr. Suleman Habibullah, learned counsel appearing for the State in the two cases. The learned counsel for the applicant has argued that is quite unnatural' that the co-accused would purchase illicit arms from the shops of the applicants, get their numbers erased and then again keep the said weapons with the same shop. He has also argued that the very facts of the two recoveries are verbatim the same inasmuch as both contained identical allegations of keeping the weapons in similar bags at the shops. It is also argued by the learned counsel that there was no occasion for the co-accused Muhammad Zafar to have disclosed the purchase and keeping of the ammunition with the owners of the shops as in the normal course if such was the fact then the co-accused would have taken a chance to get the same supplied to his companions instead of getting the same recovered by the police. These facts, according to the learned counsel, appear to be doubtful on the face of it.
6. I have taken into consideration the above contention of the learned counsel. However, it appears that in investigation of the present case, the police has failed to comply with the mandatory requirements pf section 166, Cr.P.C. It is an admitted fact that the shops of the present applicants are situate in Saddar Bazar which falls within the territorial jurisdiction of Cantonment Police Station while the complainant is S.H.O. Of Fort Police Station and thus he could not have raided the said shops situate outside his territorial jurisdiction unless he complied with the provisions of section 166, Cr.P.C., and Rules 25.3 and 25.4 of the Police Rules. It will be advantageous to reproduce the provisions of section' 166, Cr.P.C., which reads as under:--
166. When Officer-in-charge of police station may require another to issue search warrant. (1) An officer-in-charge of a police station (or a Police Officer not being below the rank of Sub-Inspector making an investigation) may require an officer-in-charge of another police station whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.
(2) Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.
(3) Whenever there is reason to believe that the delay occasioned by requiring an officer-in- charge of another police station to cause a search to be made under subsection (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer-in-charge of a police station or a Police Officer making an investigation under this chapter to search, or cause to be searched, any place in the limits of another police station, in accordance with the provisions of section 165, as if such place were within the limits of his own station.
(4) Any officer conducting a search under subsection(3) shall forthwith send notice of the search to the officer-in-charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under section 103, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in section 165, subsections (1) and (3).
(5) The owner or occupier of the place searched shall, on application, be furnished with a copy of any record sent to the Magistrate under subsection (4): ' Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of costs."
7. ' The above subsections (3) to (5) were added under section 37 of Act XVIII of 1923. A plain reading of the above provision of law would show that it is mandatory for officer-in-charge of a police station who desires to make a search in any place outside his territorial jurisdiction to make a request to the officer incharge of the police station having territorial jurisdiction to make such search. However it further provides that in case the first Police Officer is of the view that there may be a delay caused in following the said procedure which may result in evidence being concealed or destroyed then he may cause the said search to be made by himself but he has to issue forthwith a notice for search to the officer-in-charge of the police station having the territorial jurisdiction. He has also to send with such notice a copy of the list (if any) prepared under section 103 and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in section 165, subsections (1) and (3). The learned counsel appearing for the State on query from the Court has submitted that the said mandatory provision of subsection (4) above has not been complied with. A plain reading of subsection (4) would show that it is intended as an additional safeguard to protect individual against general or roving searches and the omission to comply with such provision of this subsection will render a conviction liable to be set aside. A reference may be made to the case of Lal Mea and others v. Emperor AIR 1926 Cal.
663. It may further be observed that to hold otherwise would render this clause in many a case a dead letter. It is essential that a Police Officer conducting a search under section 165 or 166 of the Criminal Procedure Code should send forthwith, to the nearest Magistrate, copies of the record that he has prepared before undertaking the search and non-compliance in such cases would amount to disregard of a mandatory provision and no conviction can be based on such defective investigation. Similarly the provisions of Rules 25.3 and 25.4 have also not been complied with in the present case. These provisions read as under:-- 25.3 Action when offence occurring in another police station is reported. When the occurrence of a cognizable offence in another police station jurisdiction is reported, the fact shall be recorded in the daily diary and information shall be sent to the officer-in-charge of the police station in the jurisdiction of which the offence was committed. Meanwhile all possible lawful measures shall be taken to secure the arrest of the offender and the detection of the offence.
8. 25.4 Where offence appears to have occurred in other police station.--- (1) If a Police Officer after registering a case and commencing an investigation discovers that the offence was committed in the jurisdiction of another police station he shall at once send information to the officer-in-charge of such police station.
9. The learned State counsel has not been able to produce any material on record to show if such compliance has been made. I had also called for the R&Ps. From the trial Court. The R&Ps. Do not contain any intimation sent to the Court under section 166, Cr.P.C. In these circumstances, I am of the view that this is a fit case for abashment of the proceedings as the same would amount to abuse and misuse of the process of the Court. Accordingly, I allow these two applications and direct the proceedings pending against the applicants in Cases Nos.7 and 8 of 1995 before the Judicial Magistrate-I, Hyderabad to be quashed and applicants be acquitted. The applicants are on bail, their bail bonds stand cancelled.