MUHAMMAD - BASHIR KHAN JEHANGIRI, J.---This criminal petition for leave to appeal has been filed by the State against the order recorded by the learned Federal Shariat Court on 10-10-1995 whereby Shankar accused-- respondent was acquitted of the charge under Article 4, of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called as the Order).
2. Shankar son of Mevo, respondent was tried for having been found in possession of opium weighing 250 grams (recovered from his pocket) and 5 kilograms (seized on his Plantation from the brief-case from a , room of his house). He was convicted under Article 4 of the Order, and was sentenced to rigorous imprisonment for 10 years, 10 stripes and a fine of Rs.10,000 or in default to suffer rigorous imprisoriment for 2 years.
3. The persecution story is that in pursuance of a spy information on 8-2-1994, Hussain Shah, Incharge Special Squad Directorate of Excise and Taxation, Hyderabad and the other members of his Squad reached the house of one Atam Manghwar in Hala city and made a call at his door at which the person came out disclosing his name as Shankar. His personal search led to the recovery of polythene bag from his right side pocket of his shirt containing opium weighing 250 grams, a sum of Rs.200 besides a sum of Rs.75 from his pocket. On further probe he brought out a brief-case from under the heap of animals .Dung from inside a room of the said house. On opening the brief-case 5 bigger polythene bags also containing contraband opium weighing 5 kilograms was seized and sealed into parcel. Shankar was, therefore, arrested for the commission of offences under Articles 3 and 4 of the Order and taken to Police Station, where formal FIR was registered. The contraband material seized from the respondent when despatched to the Chemical Analyst was found to be opium. After completion of the investigation the respondent was put on trial before the Court.
4. The prosecution examined Ali Raza Shah (P.W.1) who testified to the correctness of the prosecution case in its entirety as had been set up in the FIR. Syed Zaheer Hussain Shah complainant (P.W.2) supported Ali Raza Shah (P.W.1) on all the material particulars and tendered in evidence the report of Chemical Analyst.
5. The respondent when examined under section 342, Cr.P.C. Denied the persecution allegation and professed innocence.
6. The learned trial Court on appraisal of persecution evidedce and the perusal of the defence plea convicted the respondent under Article 4 of the Order and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.50,000 or in default to undergo rigorous imprisonment for 2 years and also to suffer 10 stripes. Nonetheless before parting with the case, the trial Judge made the following observations:--- "Before concluding I would like to point out that the Excise Inspector was enquired as to whether he had obtained search warrant for raiding the house to which he had replied in affirmative. He was further asked whether he could produce the said search warrant to which he had also replied in the affirmative, therefore, the Court had directed him to produce the search warrant after recording of the evidence. After recording of the evidence he went to his office and came back after about half an hour and informed that the search warrant was not available in the papers.
From this it appears that the Excise Inspector had made false statement before the Court regarding the obtaining of search warrant so as to fill the alleged defect in the case, hence a notice under section 193, P.P.C. May be issued against him to show cause as to why he should not be prosecuted for giving false evidence on the above point only.
7. Shankar respondent challenged his conviction and sentences before the Federal Shariat Court. A learned Judge in Chambers of the Federal Shariat Court found that the prosecution in violation of the provisions of section 103 of the Criminal Procedure Code (V of 1898) and Article 22 of the Order had not associated in the search to respectables of the Mohallah where the house of the respondent was situate and relying on the law laid down in the case of Ashiq Hussain v. State (1995 MLD 932), reached the conclusion, that prosecution had been unable to establish its case against the respondent. He accepted his appeal, set aside his conviction and sentences and ordered him to, be released forthwith if he was not required in any other case.
8. Raja Abdul Ghafoor, learned A.O.R., appearing on behalf of the State, while defending the conviction recorded against the punishments awarded to the respondent by the learned trial Judge, urged that the learned Judge in Chambers of the Federal Shariat Court had fallen into error in rejecting explanation tendered by the prosecution for its failure to associate the second witness from public in conducting the search of the house. He also defended the omission to produce the warrant for conducting the search of the house of the respondent in consequence whereof the contraband opium weighing 5 kilograms was seized. In support of his contention he placed reliance on to recent precedents of this Court in Mirza Shah v. The State (1992 SCMR 1475), Mir Muhammad v. The State (1995 SCMR 614 (and one of Quetta reported as Yar Muhammad v. State (PLD 1997 Quetta 31). We subscribe to the enunciation of law on section 103 Cr.P.C. Propounded by this Court in the case of Mirza Shah (supra) that during investigation, if there is every possibility of compliance with section 103 (ibid the Investigating Officer should give preference to the procedure laid down but if he is unable to comply with it, he must explain the reasons for non--compliance.
The learned Judge in the Shariat Court, however, was not satisfied with explanation tendered for not associating the public witnesses in the search for cogent reasons which in our view are quite valid. In Mir Muhammad's case (supra), a Full Bench of this Court had repelled the contention raised on behalf of appellant therein that the three police officials of recovery were not only interested but were not the residents of the locality on the reasoning that their evidence cannot be rejected on account of the office which they hold in that the officials are as good witnesses as any other citizen. In that case the to Courts below had believed them. The ratio deducible from the precedent case of Mir Muhammad supra is that provisions of. Section 103 apply to a case where police conducts search of the house/place to recover an article for which search is to be made and not to a case where anything is to be discovered in consequence of information given by or on behalf of the Plantation of the accused. In that case the appellant therein, while in custody in a murder case had led the police to his house and got recovered unlicensed gun. The facts of the precedent case of Mir Muhammad are quite distinguishable. In the instant case the respondent had not led the Investigating Officer while in custody. On the contrary it was clearly a case of search of the house within the purview of section 103, Cr.P.C. And association of the to respectable persons of the locality of the house and without furnishing a plausible explanation to condone this legal requirement, the legality of this search and consequential recovery of narcotics was definitely suspicious. It would be inappropriate to make any observation on the case of Yar Muhammad at this stage as it might have or may come up before this Court in the near future. ,
9. In the factual background of this case, therefore, the learned Federal Shariat Court had rightly discarded the recovery of the contraband opium) attributed to the respondent.
10. We, therefore, find no substance in this State petition and dismiss it.