MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- This appeal is directed against the judgment dated 25- 4-2002 passed by the learned Special Court Control of Narcotic Substances Karachi Division, in Special Case No,437 of 2000, whereby the appellant has been convicted for commission of offence punishable under section 9(c) of C.N.S Act, 1997 and has been sentenced to suffer imprisonment for life and to pay fine of Rs,20,00,000 (Rupees Twenty Lacs), and in default of payment of fine to suffer R.I. For four years more.
2. The prosecution case as contained in the F.I.R is that after receiving spy information from special informer that in Gadap area huge quantity of Charas has been kept, Syed Raza Abbas Shah, Inspector Crime Branch Sindh Excise Police Karachi, arranged continuous surveillance for a period of one week and thereafter in presence of P.Ws Syed Mudasir Hussain and Syed Sabir Hussain, under the supervision of A.E.T.O, Syed Fazal Abbas shah and in the company of Inspectors Mirza Ameer Anwer, Chaudhary Muhammad Maqsood, Badruddin Baloch and other Excise staff raided at Saeed Poultry Farm near Angara Goth, Gadap, District Malir at 6.00. P.M., on 28-7-1998. He found one person inside the Poultry Farm. On inquiry, he disclosed his name as Khan Muhammad son of Karim Dad. Inspector Syed Raza Abbas Shah searched the body of said person and recovered Rs,200 in cash from the front pocket of his shirt. Khan Muhammad son of Karim Dad was interrogated about narcotic substances, who voluntarily pointed out an underground place in the farm. The underground storage was searched from where 32 polythene bags containing Charas were recovered. The bags were opened and every bag was found containing 40 slabs of Charas weighing half kilo gram each. The total weight of Charas was found to be 640 kilograms. Inspector Syed Razza Abbas Shah thereafter arrested Khan Muhammad son of Karim Dad. On further search nothing incriminating was found. One slab weighing half kilogram was sealed in Khaki paper envelope. The remaining bags were seized and sealed. The mashirnamas of arrest and recovery was prepared. Syed Mudasir Hussain and Syed Sabir Hussain acted as mashirs. The sample of Charas taken from the spot was sent to the Chemical Examiner. The Chemical Examiner certified that the slab was found to be Charas.
3. After completion of investigation, the appellant was sent up to face trial before the learned Special Judge, Malir Karachi and subsequently the case was transferred to Special Court Control of Narcotic Substances Karachi Division.
4. The prosecution examined P.W. Mudasir Hussain, who stated that on 28-7-1998, he was posted at Police Station Sindh Secretariat. He was working as part time accountant at a hotel near Sohrab Goth also. At about 5-00 p.m. Inspector Syed Raza Abbas Shah along with other officials and subordinate Excise staff asked him to accompany them as they were proceeding to conduct a raid in the Poultry Farm near Angara Goth, Gadap Malik Karachi. They reached the Poultry Farm at about 6-00 p.m. Where they found accused Khan Muhammad son of Karim Dad. On personal search Rs,200 were recovered. He disclosed that Charas was stored in a warehouse inside the Poultry Farm and on his pointation 32 ploythene bags containing slabs weighing half kilogram each were recovered. The total weight of Charas recovered was 640 kilograms. The recovered Charas was seized by Inspector Syed Razza Abbas Shah and he signed the mashirnama which he produced as Exh.4-A. In cross-examination, he conceded that he was employee of Excise Police and was subordinate to Inspector Syed Raza Abbas Shah, but this fact was not disclosed in his 161, Cr.P.C. Statement, in which he stated that he was employed at a hotel at Sohrab Goth. He expressed his ignorance about the preparation of any inspection memo. He further stated that he does not remember as to what was the scale by which the Charas was weighed but every slab was weighing half kilo gram. He further stated that the cash amount was recovered from right side pocket shirt of the accused.
5. The second witness examined by the prosecution was Inspector Syed Raza Abbas of Excise Police. He stated that on 28-7-1998 he received spy information at Excise Crime Branch Police Station Sindh Secretariat Karachi. He further stated that after receiving spy information, he kept the place of storage of Charas under watch and on 28-7-1998, he 'raided Saeed Farm. He has further stated that accused Khan Muhammad was found there and on his personal search Rs,200 were recovered. Upon interrogation accused disclosed that inside the Poultry Farm there is a storage place. On opening store he found Charas kept in 32 polythene bags. Each bag contained 20 kilograms of Charas in the shape of slab, each weighing half kilogram. The Charas was secured and sealed at the spot. He verified the mashirnama Exh.4-A and produced F.I.R. Exh.5-A. He further stated that he had sent sample to the Chemical Examiner and has produced the report of Chemical Examiner Exh.5-B. In cross-examination, he stated that he raided the . Place of incident after receiving information that the Charas was stored inside the Poultry Farm. He further stated in cross-examination that he does not know whether accused Khan Muhammad is owner of Saeed Poultry Farm or not. He has further stated that on his inquiry, accused informed that he was owner of Saeed Poultry Farm. He further stated that out of two mashirs one was employee of the Excise Police, while the other was not. He has conceded that in 161, Cr.P.C. Statement, it is not stated that S. Mudasir Hussian was employee of Excise Police. He stated that each polythene bag contained 40 slabs of Charas. During his cross-examination, the learned trial Court (Special Judge Malir Karachi) opened one bag and on examination found that there were three bundles containing 10 slabs of Charas each weighing half kilogram. In addition to the three bundles containing 30 slabs, there were 5 large pieces weighing one kilogram each. Thus, the weight of the bag opened was 20 kilogram but the slabs were 35 instead of 40 as stated by the mashir and the Investigating Officer.
He stated that he had himself weighed each slab in the scale and has found each slab weighing half kilogram. He was not able to explain as to how the bag opened contained 35 slabs only out of which 5 slabs were weighing one kilogram each.
6. The statement of accused was recorded under section 342 Cr.P.C., in which he denied all the prosecution allegations. He examined himself on oath under section 340(2), Cr.P.C., wherein he stated that he was sleeping in his house situated at Hussain Baloch, village Gadap when, armed police entered in his house at about 11/12 in night and forcibly took him away and falsely implicated him in this case. He further stated that he apprehended his false implication at the instance of Ghulam Hussain and Majeed who wanted to eject him from his land which they wanted to purchase earlier. They extended threat to implicate him in a case in which he would become totally helpless. D.Ws Saifal Ubro and Muhammad Bux were also examined in defence, who deposed that Abdul Majeed and Ghulam Rasool were inimical to the accused.
7. The learned Special Judge, C.N.S. Karachi Division held that the prosecution proved the charge of recovery of 640 kilograms of Charas from the possession of accused and consequently, convicted and sentenced the accused as narrated in the earlier part of this judgment.
8. We have heard the appellant in person and Mr. Habib Ahmed, learned A.A.-G. For the State. The learned A.A.-G. Supported the impugned conviction and sentence. However, we asked him to explain the discrepancy in the prosecution evidence. Both the prosecution witnesses stated that every bag contained 40 slabs weighing half kilogram each, but when the learned trial Court opened one bag it was containing 35 slabs only out of which 30 slabs each were weighing half kilogram, while 5 slabs were weighing one kilogram each. The learned A.A.-G. Stated that the Investigating Officer was confronted with this situation by the trial Court, but he was not able to reconcile the discrepancy. We further asked the learned A.A.-G. To point out any material on record to show that Saeed Poultry Farm, from where the Charas was recovered was owned by the accused. He stated that except a word from the I.O. At the trial there is no material on record to establish the ownership of the Poultry Farm by accused Khan Muhammad. He was pointed out that even in the F.I.R. And mashirnama it is not stated that accused Khan Muhammad was the owner of Saeed Poultry Farm to which he had no option but to concede.
9. The learned A.A.-G. Was pointed out the law as laid down by the Hon'ble Supreme Court in the case of State v. Hemjoo 2003 SCM R 881. The facts in the cited case were that an Excise Inspector along with his subordinate staff raided the house of accused Hemjoo and on search of his house recovered a bag containing one kilogram Charas. The accused was convicted by the Special Court Narcotic Substances Act, at Mirpurkhas. However, a Division Bench of this Court sitting at Hyderabad, set aside the conviction and sentence mainly on the ground that despite availability of independent persons, the members of raiding party only, were cited as witnesses and public witnesses were withheld which made the recovery doubtful. An appeal was preferred before the Hon'ble "Supreme Court against acquittal by the Division Bench of this Court and the Hon'ble Supreme Court refused leave to appeal holding as follows:-- "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 is satisfied that a warrant of arrest as 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 bedroom 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. The Excise Inspector on the information, proceeded to conduct the raid and could conveniently obtain the search warrant from the Court of Special Judge but he having felt no necessity of such warrant, transgressed the authority of law which would make the search of house illegal. The learned Additional Advocate-General has not been able to convince us that in the facts of the case, the requirement of search warrant could be dispensed with. We having heard the learned Additional Advocate-General have not been able to find the acquittal of the respondent by the High Court, against the interest of criminal administration of justice."
10. The learned A.A.-G. Was pointed out that according to the version of Investigating Officer, he received spy information about one week before the raid' and kept surveillance. Thus, there was sufficient time at his disposal to obtain search warrant from the Special Court under section 20 of the Control of Narcotic Substances Act, 1997. The non-compliance with the mandatory provisions of law in the facts and circumstances of the case rendered the entire search and recovery proceedings to be illegal and unworthy of reliance. Such illegal raid and recovery in pursuance thereof would not form basis for conviction of the accused. The learned A.A.-G. Had no explanation.
11. We have carefully considered the material available on record and we find that in this case neither memo. Of place of incident has been prepared, nor the ownership of Saeed Poultry Farm has been established. There is material contradiction in the statements of the two prosecution witnesses and actual contents of one bag, which was opened by the learned trial Court, for which no explanation was available with the I.O. We further find that mandatory provision contained in section 20 of the Control of Narcotic Substances Act, 1997, has not been complied with. In the facts and circumstances of the present case as stated by the Investigating Officer himself, there was no justification, for exercise of discretion vested under section 21, by passing the provisions contained in section 20. For the sake of convenience the provisions contained in sections 20 and 21 of the Control of Narcotic Substances Act, 1997, are reproduced below: "20. Power to issue warrants.--(1) A Special Court may issue a warrant for the arrest of any person whom it has reason to believe to have committed an offence punishable under this Act, or for the search, whether by day or by night, of any building, place, premises or conveyance in which he has reason to believe 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.
(2) The officer to whom a search warrant under subsection (1) is addressed shall have all the powers of an officer acting under section 21.
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 materials 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.
(2) Before or immediately after taking any action under subsection (1), the officer referred to in that subsection shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer."
12. Respectfully following the law laid down by the Hon'ble Supreme Court in the case of Hemjoo (supra) coupled with the infirmities in prosecution case on factual plane we are of the considered opinion that the impugned conviction and sentence is not sustainable in fact and law which is hereby set aside.
13. The appeal is allowed. The appellant/accused Khan Muhammad who is serving out his sentence in Central Prison, Hyderabad, is remanded back in custody with the direction to release him forthwith if not required in any other case.
14. After hearing the appellant in person and the learned A.A.-G., the Appeal was allowed by short order today. These are detailed reasons in support thereof.