1. ' Wazir son of Ghulam Rasool Pathan was convicted on 22-12-1993 under section 4 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to suffer R.I. For one year with fine of Rs,2,000 or in default to undergo R.I. For two more months. Convict's appeal was dismissed by the leamed Sessions Judge, Nawabshah (Mr. Muhammad Sadiq Leghari) on 9th May, 1994. He has come up in revision.
2. ' The case of the prosecution as unfolded in F.I.R. Is that on 28-11-1992 at 16-10 hours vide Entry No,14, S.H.O. Anwar Baig of Daur Police Station left alongwith subordinate staff for patrolling in the area where he received spy information that Wazir son of Ghulam Rasool Pathan was selling Charas in his house at Razaabad. He went to the house of the convict who was seen standing outside of his Otaq but on seeing the police party he went inside the house wherefrom he was apprehended.
3. From his possession 90 bags (Purees) of Charas in separate bags were recovered and total weight of recovery was 1300 grams. Rupees sixty were also recovered from the convicts. The S.H.O. Took out one piece of Charas as sample and then in the presence of Mashirs the sample and the remaining Charas were sealed separately. On 29-11-1992 at 16-10 hours the report of the alleged recovery was lodged at Daur Police Station by S.H.O. Anwar Baig. The sample of Charas was sent to the Chemical Examiner, Sukkur at Rohri for examination. After usual investigation the convict was sent up to stand trial for the said offence.
4. ' At the trial the prosecution examined two witnesses namely Anwar Baig and Mashir P.C.
5. Muhammad Arshad. In his statement recorded under section 342, Cr.P.C. The convict disputed the case of the prosecution. According to him the prosecution witnesses deposed against him because they are interested witnesses. While pleading innocence he alleged that S.H.O. Daur Police Station had purchased cloth from his shop and when he demanded money he was taken away from his shop in the presence of so many persons and was implicated in this false case.
6. ' I have heard Mr. S. Ali Madad Shah, learned counsel for the applicant and Mr. Shafi Muhammad Memon, learned A.A.-G. For the State.
7. ' Learned counsel for the applicant submitted--
(a) that the applicant having been arrested from the house and allegedly Charas recovered from him. The learned trial Court could not take cognizance of the offence in view of sections 16 and 22 of the Prohibition (Enforcement of Hadd) Order, 1979;
(b) that the Mashirnama and the F.I.R. Speaks of Otaq which was a part of the house but the search was made without obtaining search warrant and permission under section 155(2), Cr.P.C. Was also not obtained;
(c) that the report of Chemical Examiner is of no consequences and is not legally helpful to the prosecution. The recovered Charas was sent to the Chemical Examiner on 6-3-1993 after the lapse of four months through Police Constable Abdullah who has also not been examined. Even otherwise, there is no evidence on record about the safe custody of the case property;
(d) that there was material contradictions in the evidence of the two prosecution witnesses, therefore, no reliance could be placed on such evidence.
8. ' Learned A.A.-G. While supporting the impugned judgment submitted that the P. Ws. Have fully supported the prosecution. He also contended. That the applicant was arrested from his Otaq which is a public place.
9. ' I have very anxiously considered the above submissions and perused the record. In the F.I.R. It is mentioned that the appellant was standing outside of his Otaq and on seeing the police party he ran towards his house wherefrom he was apprehended and one bag containing 90 pieces of Charas was secured.
10. ' P. W.1 Inspector Anwar Baig in his examination-in-chief deposed that the applicant was "standing" outside of his Otaq, while P.W.2, P.C. Muhammad Arshad deposed that, they saw that the applicant was "sitting" outside of his Otaq and on seeing the police party he tried to run away but was surrounded and apprehended on the spot. There is no doubt that police officials are equally good witnesses but a bare reading of the statements of the P.Ws. Coupled with the fact that the Roznamcha Entry No,14 which should have been produced but was not produced makes patrolling as alleged in the F.I.R. Wholly doubtful. Production of Station Diary Entry would have corroborated the fact that S.H.O. Anwar Baig had actually left the Police Station for patrol duty at 13-30 hours.
11. ' There is yet another circumstance which directly affects the veracity of both the witnesses and makes the prosecution story doubtful. The crucial question is as to wherefrom the applicant was apprehended. In the F.I.R. It is mentioned that he was sorrounded and apprehended when he ran into his house from his Otaq. Now, the question turns to the interpretation of the word Otaq. In Sindhi language it means drawing room or a place specially reserved for sitting and/or entertaining the male guests or visitors. It is normally considered as part of the residential house and by no stretch of imagination it can be treated as public place. Even otherwise Article 2(1) of the Order, defines public place as under: "(1) 'Public place' means a street, road, thoroughfare, park, garden or other place to which the public have free access and includes a hotel, restaurant, motel, mess and club, but does not include the residential room of a hotel in the occupation or some person."
12. ' The word "Otaq" has not been defined in the Enforcement of Hadd Order, and therefore, it will be understood in its popular sense. As pointed out earlier Otaq means the part of a house. The word 'public place' as noted earlier has however, been defined and according to its statutory connotation it is not a place which is freely accessible to the public. A house or part thereof is not a place open to public like park, garden, thoroughfare etc. Which find mention in the legislative enumeration of the concept of public place. The learned A.A.-G. Nevertheless contended that Otaq should be so interpreted so as to mean a public place. To subscribe to his point of view is not possible without outstretching the meaning assigned to the term public place by the legislature. It is a well-established cannon of interpretation that nothing is to be added or taken from a statute unless there are adequate grounds to justify inference that the legislature intended something which it omitted to express. It will be relevant to quote the following from Halsbury's Laws of England, Vol. 4th (Fourth Edition), paras. 856 and 857 at p.522: "The dominant purpose in construing a statute is to ascertain the intention of Legislature as expressed in the statute, considering it as a whole and in its context. If the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of the Parliament, and there is no need to discover their intention or meaning."
13. ' Lord Mersey in Thompson v. Goold & Co. Reported in (1910) A.C.409 observed as under:-- "It is a strong thing to read into an act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do."
14. ' The definition of public place is not stained with any ambiguity and it is evident that the Legislature never intended a dwelling house to fall within its ambit.
15. Therefore, I find no force in the submissions of the learned A.A.-G. That Otaq is a public place This brings me to the conclusion that the applicant/convict was arrested from his house and not from any public place. So far as the first two submissions of the learned defence counsel are concerned I find no force in them. It is a mandatory requirement of law as contained in section 22 of the Prohibition (Enforcement of Hudd) Order, 1972, that no search shall be carried out without the authority of a search warrant but this provision is not attracted to the facts of this case because only person of the applicant/convict was searched and not the place (Otaq/house where he was searched. It is a settled law that provision of search are not applicable to personal search.
16. Reference may be made to the judgments reported as Muhammad Frooq v. The State (1985 PCr.LJ 778), The State v. Jamshed Ali and 2 others (PLD 1994 FSC 11), Mir Muhammad v. The State (1995 SCM R 614) and Muhammad Akbar v. The State (1995 SCM R 693). Likewise provision of section 103, Cr.P.C. Is not attracted if only a person who is inside of a place is searched. Presence of two respectable persons of locality shall be necessary when a place is sought to be searched. I have no cavil with this proposition of law but it is equally important to emphasise that the preparation of Mashinama in presence of Mashirs and corroborative evidence of Mashir is not a routine affair.
17. Therefore the Court should be vigil= to see that the liberty of subject should he jealously guarded and that Mashir should always be a respectable person. It is therefore, held that in cases when the police has prior information as has happened in this case, it is desirable that a Mashir should be a respectable and impartial person. However, if the circumstances are such where due to odd hours, natural calamity or reluctance of the independent persons to come forward etc. It is not possible to associate a person who is not disreputable in any way at least the prosecution should produce evidence to explain such circumstances. P.W.1, Anwar Baig has deposed as under : "We prepared Mashinama of arrest and recovery on the spot. We did not ask any private person to act as Mashir."
18. ' P.W.2, P.C. Muhammad Arshad in his cross-examination also stated that the house and the Otaq of the applicant are adjacent to each other and Razabad Mohalla is situated in Daur Town. There are hotels, shops and houses in that Mohalla and the distance between the place of incident and house of the appellant is one furlong. From this evidence it is evident that no effort was made by the S.H.O. To secure an independent Mashir.
19. ' There is also considerable force in the submission of the learned counsel for the applicant that unexplained delay in sending the parcel to the Chemical Examiner after the lapse of four months is also fatal to the prosecution case. From the report of the Chemical Examiner (Exh.4/C) it is evident that the sealed parcel was sent to the Chemical Examiner at Sukkur on 6-3-1993 through P.C.
20. Abdullah (B.1013) alongwith Letter No,37 dated 3-3-1993 while the recovery was allegedly made on 28-11-1992. No reason has been brought on record to justify such a long delay in sending the parcel to the Office of the Chemical Examiner. P.C. Abdullah has also not been examined by the prosecution and there is nothing in the record to show that throughout the intervening period the sealed parcel was kepi in safe custody to eliminate the chances of tampering. The prosecution was duty bound to have brought evidence before the trial Court to show that the sealed parcel was kept in safe custody. Ceasars's wife has got to be above suspicion and it is held that sealed parcel of seized Narcotics should not in any event be kept in police custody for indefinite period and must invariably be sent to the Expert forth-with and on this point the prosecution should bring evidence but in the instant case it has not been done, therefore, in such a situation I am not inclined to give weight to the Chemical Examiner's Report.
21. ' The upshot of the above discussion is that the case against the appellant is not free from doubt. In Mst. Basri v. The State (PLD 1967 Peshawar 147) Abdul Ghani Khan Khatak, J. Observed as follows:-- "The doctrine of benefit of doubt deep-rooted in our system of criminal jurisprudence, must come in to play in cases when the facts and circumstances of the case call for its application to promote the ends of justice. It is true that it must be kept within its bounds, still if it arises out of the established facts palpable in the evidence of the case as a whole it should not be denied to an accused person whose liberty turn entirely on the just and proper application of this principle."
22. Following the above principle in the facts and circumstances of this case acquit the appellant by giving him the benefit of doubt. His bail bond stands discharged. The impugned judgment of conviction and sentence is set aside and the appeal is allowed.