SYED DEEDAR HUSSAIN SHAH, J.---This petition is directed against the judgment of the High Court of Sindh, Karachi, dated 18-12-2003, passed in Criminal Appeal No,198 of 2003.
2. The facts, in brief, are that complainant Ghulam Abbas, Inspector of Anti-Narcotic Force, Police Station A.N.F. Clifton Karachi, received information from his superiors that a couple of German nationality possessing huge quantity of narcotic substances was present in Boat No,6989 anchored in the sea at Marina Club Karachi. After receiving such information, the complainant along with his subordinates reached the Marina Club Where they contacted its administration and inquired about the boat with the German Nationals. After obtaining the requisite information they went to the requested boat in another boat where they found a male and female German Nationals. On inquiries, the petitioner disclosed his name as Karl .Tlhn Joseph and the female disclosed her name as Sosanne Gertraude Denecke. The police party inquired from them about the availability of narcotic substances in the boat, to which they told the police that there was no narcotic substance in the boat. Thereafter, the police started to search the boat. Two persons of Marina Club were also with the police who were requested to act as mashirs but they declined to do so, hence, in the presence of A.N.F officials i,e, Constable Shahid Raza and Constable Muhammad Ibrahim the police searched the boat. During the search, they found a cardboard carton lying inside the cabin under the clothes. On examination of the cardboard, 21 slabs of Charas, each slab weighing 1 kg were lying in it. The total weight of the Charas was 21 kgs. The complainant took out two grams of Charas from each slab as a sample for the purpose of chemical examination. Twenty-one samples were sealed separately. From further search of the boat unlicensed pistol, two guns and bullets were secured. From the personal search of the petitioner, passport, German Identity Card and five credit cards were secured. The lady (co- accused) produced her passport, German Identity Card, eight credit cards, cash and other articles from her purse. Both accused were arrested, Mashirnama was prepared, and they were brought to the police station where the F.I.R was lodged. F.I.R under section 13(e), Pakistan Arms Ordinance 1965 was also lodged against the petitioner. The samples of Charas were sent to the Chemical Examiner, whose report was in positive. After completing the investigation, the accused were challaned. A charge was framed against the accused but they pleaded not guilty. In support of its case, the prosecution examined two witnesses viz. Complainant and Mashir Shahid Raza.
3. The petitioner and co-accused in their statements recorded under section 342, Cr.P.C, denied all the allegations leveled against them.
4. After hearing the learned counsel for the parties and examining the material available on the record, the learned trial Court vide judgment dated 19-6-2003, convicted the petitioner and co- accused under section 9(c) Control of Narcotic Substances Act, 1997 (hereinafter referred to as the Act) and sentenced each of them to suffer imprisonment for life and fine of Rs,100,000 or in default thereof to suffer R.I. For six months with the benefit of section 382-B.
5. Dissatisfied with the aforesaid judgment, the accused preferred appeal, which was partly accepted by the learned High Court, whereby the conviction and sentence of co-accused Sosanne under section 9(c) of the Act, was set aside and acquitted her, whereas the conviction and sentence of the petitioner was maintained, vide judgment impugned herein. Hence, this petition.
6. Rana M. Shamim, learned Advocate Supreme Court for the petitioner, inter alia, contended that the prosecution did not associate private persons as witnesses in the case as Mashirs and violated the provisions of section 103, Cr.P.C, that the impugned judgment is not in consonance with law and is liable to be set aside because the co-accused was acquitted on the same set of evidence; that the prosecution has miserably failed to prove its case beyond reiwnable doubt and that both the learned Courts below have not applied their independent judicial mind to the fact that the Mashir of recovery was the subordinate of the Investigating Officer/complainant.
7. We have considered the arguments of learned counsel for the petitioner and minutely perused the material available on the file. The contention of learned counsel for the petitioner that private persons were not joined by the prosecution to act as Mashirs, which is the violation of section 103, Cr.P.C., is not tenable, because according to section 25 of the Act, the provision of the Code of Criminal Procedure 1898, except those of section 103, shall mutatis mutandis, apply to all searches and arrests insofar as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issues and arrests and searches made under these sections. According to the prosecution case the information was received by the complainant/Inspector at about 9-00 p.m., by the time the Court hours were over and they were not in a position to obtain such warrants from the Court. The explanation furnished by the prosecution itself is convincing and natural, therefore, non-joining of the private persons as Mashirs is of no consequence. The other contention of A the learned counsel that the co-accused was acquitted by the High Court on the same set of evidence is also not acceptable, because according to the prosecution version the boat from which the Charas was recovered B belonged to the present petitioner. In this context we have gone through Annexure "A" clearance certificate issued by Sultanate of Oman, Director General of Customs, which was filed along with the written statement, which shows that the petitioner was Captain and Master of the boat in question and all articles lying in the said boat were in his possession. The distinguishable factor of the case of co-accused Sosanne is that she never alleged that the boat in question belonged to her or she was its Captain. The mere allegation of the prosecution that she was present in the boat at the time of search was not found sufficient by the learned High Court without any other evidence adduced by the prosecution. It is also significant to point out that according to the prosecution at the time of search some unlicensed arms were secured from the boat for which an F.I.R under section 13 (e) of Pakistan Arms Ordinance 1965 was registered against the petitioner only and even in that F.I.R co-accused Sosanne was not named as co-accused and she was not booked for unlicensed arms and as Charas and unlicensed arms were secured by the Investigating Officer at the same date and time. The learned High Court had considered the case in its proper perspective and there is no misreading or non-reading of the material and the impugned judgment is based on the proper appreciation of facts and law. It would be more advantageous to refer here relevant paragraphs of the impugned judgment, which read as under:- "27. We have examined the evidence and found that the complainant did not disclose the time of the receipt of the information received from his superior officers but from the evidence of both the witnesses it is clear that immediately after receiving the information, the raiding party was prepared and they left the A.N.F. Office at 9-00 p.m. From these facts it is clear that the information was received late after Court hours, therefore, it was not possible for the complainant to have obtained the search warrant from the Court. If they had delayed the raid on the yacht, the same could have been sailed out and the entire efforts of the prosecution would have been frustrated.
Furthermore, in the case State v. Hemjoo (supra) the Hon'ble Supreme Court of Pakistan at page 883 in para. 4 has observed as under:-- "An officer not below the rank of Sub-Inspector, Police, or equivalent authorized in this behalf by the Federal Government or Provincial Government in exercise of his power under section 21 of the Control of Narcotic Substances Act, 1997, if he is satisfied that a warrant of arrest has provided under section 20 of the Act cannot be obtained, can enter into the premises without a search warrant and make search on the basis of personal knowledge or on receipt of information of commission of an offence mentioned in the above Act, by any person. In the present case, the Excise Inspector on receipt of information, went to the house of respondent and made his personal search and then by making house search, recovered Charas from the bed room of the house, without satisfying the requirement of section 21 ibid. The combined study of sections 20 and 21 of the Control of Narcotic Substances Act, 1997 would show that only in exceptional cases in which the search warrant cannot possibly be obtained before conducting the raid, an officer authorized in this behalf can proceed for conduct of raid without the warrant but this power cannot be allowed to be used in every case in the normal circumstances."
28. From the above position, it is clear that the requirement of search warrant can be dispensed with if the search warrant cannot be possibly obtained from the Court before the search is conducted. In the present case, as already observed, that the complainant received information about the availability of Narcotics in the boat after Court hours and immediately thereafter a raiding party was prepared which left the police station at 9-00 p.m., and conducted the raid of the boat at 10-00 p.m. Thus, the A.N.F officials could not obtain the search warrant from the Court in the circumstances of the present case, therefore, the complainant was competent to search the boat without the search warrant. The Honorable Supreme Court of Pakistan in a case of Fida Jan v. The State reported in 2001 SCMR page 36 after examining section 20 of Act, 1997 at page 39 observed as under: "Thus, we are inclined to hold that provisions of section 20 are directory in nature, therefore, its non- compliance cannot be considered a strong ground for holding that the trial of the accused is bad in the eye of law."
For the facts, circumstances and reasons stated hereinabove, we are of the considered view that this petition is without merit and substance, which is hereby dismissed and leave to appeal refused.