' A police party consisting of numerous personnel including senior police officers raided the house of Musalli Khan at village Boraka, Kohat on an information that proclaimed offenders named Lal Zaman and Jamal Hassan were harboured. The raid proved abortive qua the proclaimed offenders but on conducting the house search, 2 Klashnikovs' , one .7 MM rifle, another rifle of .303 bore and a pistol of .30 bore along with numerous rounds of all the aforesaid caliber were recovered. A case under section 13 Arms Ordinance was registered vide F T.R. No,511 at Police Station Saddar, Kohat.
The learned Special Judge, Kohat refused bail to the petitioner holding that the accused was prima facie linked with the recoveries aforesaid and the number involved was also large. This is Musalli Khan's application for bail.
2. Before making a link between the recoveries and the accused, the prosecution has to explain numerous things. From the F.I.R. It appears that the police had acted upon the report of an informer.
The informer who is mostly a fictitious character has a privilege of secrecy and in case the report is proved to be false, the accused has no chance at all to proceed against him under section 182, P.P.C. Or in accordance with y other relevant provisions of law. In these circumstances the reports of informers qua the rights and liberties of people are to be taken with great caution and the prosecution has to justify its raid, rather attack, on the house of the petitioner.
3. In law, there must be sufficient reason for the police to take cognizance of an offence and that reason should be capable of being explained before the other forums as well. The prosecution has to justify as to whether the soundness and plausibility of information was sufficient enough to intrude the sacredness of someone's privacy without obtaining warrant from the competent Court of law. All this is said in view of the obvious result that there was no proclaimed A offender inside the house and the so-called report of the informer was totally false . A thing even proved at this stage is that the report was false and thus a Court of law must ask for the quantum of truth, reasonableness and genuineness attached to such report before making an ingress into the house of a citizen.
4. So far as the apprehension of proclaimed offenders was concerned, it could have equally well been made by surrounding the house of the petitioner and by asking the proclaimed offenders to surrender. Keeping in view the large consignment of police it could well be done from outside but it appears that the police was interested more in entering the house rather than apprehending proclaimed offenders. The ingress could have been justified, had any warrant to that effect been obtained.
5. To be dealt with in accordance with law, is the fundamental right of a citizen duly sanctioned by Islam as well as Article 9 of the Constitution. The dignity of man and privacy of one's home cannot be violated otherwise than in due course of law. If it is so done in violation of any law, it would be tantamount to a gross violation of Article 14 of the Constitution.
6. Law demands that cognizance of an offence be taken on the basis of sufficiently reasonable evidence and not at all on the report of an informer whose name is never worth disclosure and who generally is a tout of the police.
7. Law demands that whenever some premises are to be entered into and/or some place is to be searched, the police is bound to obtain search warrant within the contemplation of Chapter VII of the Cr.P.C. Law demands that before making a search of a house or place, the officer about to make ingress or search shall call upon two or more respectable inhabitants of the locality to witness the search as well as recoveries. Such condition is so imperative and mandatory within the contemplation of section 103, Cr.P.C. That anything done in violation thereof would be a nullity in the eyes of law.
8. It is sad to note that all that was demanded by law in the instant case, has been violated by the raiding police. Had the dignity of man and privacy of home not been violated so effortlessly and unabated, the citizens might not have chosen to become criminals.
9. The very recoveries remaining yet to be justified at trial, the petitioner MusaIli Khan is directed to be released on bail provided a bail bond in a sum of G Rs,80,000 is furnished with two local, reliable and resourceful sureties each in the like amount, to the satisfaction of learned Special Judge, Kohat.