1. ' By this common order, we intend to dispose of the above two Criminal Miscellaneous Applications as they arise out of common F.I.R. And the facts of the case are also same.
2. ' The applicants seek quashment of Special Case No,34 of 2000 and 35 of 2000 in connection with Crime Nos.69 of 2000 and 70 of 2000 registered at Police Station Dhamraho for offence under section 9 of Control of Narcotic Substances Act, 199.7.
3. ' Briefly the facts of the case are that on 18-8-2000 at 11-00 a.m. In the morning the complainant A.S.-I. Wahid Bux Lashari stated that whilst they were in the police station they received spy information that a person is coming by foot from Gadani Link Road to Dhamraho who has a polythine bag containing Charas and weapons. On receiving such information' they proceeded to the place and confronted the person. He was arrested on the spot and he disclosed his name to be Imdad son of Allah Rahkhio. P.Cs. Hundar Ali and Zulfiqar Ali were nominated as Mashirs and after searching the person they found KK with 20 live bullets. They have also found Charas which was weighing about 500 grams. The person was accordingly charged under section 9 of the C.N.S. Act and section 13(d) of the Arms Ordinance.
4. ' The applicants filed application under section 561-A, Cr.P.C. Before this Court for quashment of the proceedings which was disposed of with direction to approach the trial Court first for remedy. As such the applicants filed application under section 249-A, Cr.P.C. Before the trial Court which was dismissed on 14-6-2001, hence this application.
5. ' We have heard the learned counsel for the applicants as well as learned State Counsel at length and have gone through the record available before us. It is contended by the learned counsel for applicants that the F.I.R. Was lodged by A.S.-I. Wahid. Bux Lashari whereas according to section 21 of C.N.S. Act an officer not below the rank of S.-I., Police or equivalent is authorized to detain certain persons whom he has reason to believe that he has committed an offence punishable under the Act. According to learned counsel the provision of section 21 of the Act is mandatory and non- observation of a mandatory provision renders the entire proceedings as infructuous and, therefore, liable to be quashed. He has further contended that provision of section 22 of C.N.S. Act and provision of section 103, Cr.P.C. Have also been violated as no independent person has been made witness to the alleged offence. Counsel for applicants has relied on the following case-laws:--
(i) Muhammad Aslam v. The State PLD 2001 Quetta 20, (ii) Mst. Azeema v. The State PLD 2001 Quetta 1, (iii) Khalid Nawaz v. The State 1999 PCr.LJ 391 and (iv) Sardar Alam v. The State PLD 1975 Lah.
6. 589.
7. ' Learned counsel for applicants has also assailed this matter on the grounds that since there has to be a strict adherence to the application of section 21 of C.N.S. Act, therefore, these proceedings may be quashed as it is clear from the record that the procedure laid down had not been followed.
8. We are confronted time and again with such applications where we are expect to quash the proceedings due to the strict non-application of section 21 of the Act. It would, therefore, be appropriate to reproduce section 21 of the Act and see whether strict application is mandatory and whether if does not apply then can matters be quashed. The same reads as follows:--- "21. Power of entry, search, seizure and arrest without warrant.-- (1) Where an officer, not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug psychotropic substance or controlled substance in respect of which an offence punishable under. This Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may:--
(a) enter into any such building, place, premises or conveyance;
(b) break open any door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substances and controlled substances and other material used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence' of the commission of an offence punishable under this Act, and
(d) detain, search and if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act."
9. ' From the bare reading of. The above section it is clear that it relates to the power of entry, search, seizure and arrest without warrant. It specifies to two types of officers, one not below the rank of Sub-Inspector and second equivalent authorized in this behalf by the Federal Government or the Provincial Government. Thereafter, the section states that such officer should have personal knowledge or information given to him to the effect that narcotics in respect of which an offence punishable under this Act is concealed or kept in any building, place, premises or conveyance.
10. There is a further stipulation that when such information is available from personal knowledge or an information about such an offence having been committed and that a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of the evidence then that officer has been given the power to do all that which is mentioned in (a), (b), (c) and (d) of section 21 of the Act as well as section 21(2) of the Act. It should also be appreciated that as per subsection (2) of section 21 an officer cannot unilaterily take the stand as it is mandatory that he should record the grounds and based on his information and the proposed action that needs to be taken. A copy thereafter is to be sent to his superior officer.
11. ' To our mind it is very clear that this section relates to the conducting of raids without warrant only if there is prior information and a certainty that an offence has been committed which is punishable under this Act and it is kept or concealed in a building, place, premises or conveyance.
12. The language and the section is very clear as this emergency powers have been given to avoid the escape of such persons from the place if time is given by the concerned persons in obtaining a warrant perhaps the Legislature in his wisdom has insisted of a type' of officer so as to avoid misuse or abuse by low ranking person as entry without warrant into any building, place, premises or conveyance can strike at the basic route of the civil liberty enjoyed by the individual citizen in a country where abuse of power is ramped safe guards or eminestly necessary. Whilst it is appreciated that police should be given a certain latitude to become effective in their fight against law and order. It is equally important that such freedom or latitude should not except a certain limit.
13. ' In the present case it is clear that the applicant/accused was supposed to be sitting on a mattress with a plastic bag in front of a Makan. Whilst to arrest of an individual from the road side would necessitate an action under section 20 of the Act but we have a doubt whether anybody who is standing on the road side the provisions of section 21 of N.S.C. Act, would be applicable. Now the person has been arrested without a warrant from the front of his Makan there was spy information available which means that the police has advance information. They can take an action under section 21 of the Act but then that action can only be taken by the type of officers so mentioned.
14. ' In the case of Muhammad Aslam v. The State a Division Bench of Quetta High Court has held while dealing with a murder case that when a law provides a procedure for doing a particular thing and in a particular manner than it must be done in the manner and not otherwise or it should not be done at all. In the case of Mst. Azeema v. The State the same principle has been adopted.
15. ' In the case of Khalid Nawaz v. The State a Division Bench of Lahore High Court has held that a Police Officer of the rank of A.S.-I. In view of section 22 read with section 21 of the C.N.S. Act was neither competent nor had. The authority to detain search and arrest the accused. Recovery of heroin from the accused by a Sub-Inspector/subordinate of the said Police Officer was not legal.
16. ' In the case of Sardar Alam v. The State the West Pakistan Prevention of the Gambling Ordinance it was held that the investigation into the non-cognizable cases without order of the Magistrate not authorized, any challan submitted on unauthorized investigation then proceedings were quashed.
17. In this case indeed there is violation of section 21 of the Act it is argued at times that the provisions of section 21 of the Act are unrealistic as if it was strictly followed then nobody could be arrested on the spot. There' is weight in this argument where under a routine patrolling the police party would come across suspect whom they would want to check. If strict adherence to section 21 was followed and a person of the rank was not available then perhaps the suspect would be able to run away or escape. However, where in the F.I.R. It is stated clearly that spy information was received and that the police were aware in advance as to the exact location of the person then they should follow the provisions of section 21 of C.N.S. Act. Spy information is always knowledge in advance and the police party always leaves the police station with the intent and purpose of the search and arrest. In this case also the 'spy information was available in advance yet they did not adhear to or follow the provisions of section 21 of C.N.S. Act.
18. ' For the foregoing reasons, we would allow these two Criminal Miscellaneous Applications and quash the proceedings of Special Cases Nos.34 of 2000 and 35 of 2000 pending in the Court of Sessions Judge/Special Judge (C.N.S.), Larkana.