MUKHTAR ALIAS KAROO Versus THE STATE

This revision petition has been filed against the order of Sessions Judge, Multan, dated 18‑1‑1984 who while acquitting Yunus upheld the conviction of the petitioner under Article 3 Prohibition (Enforcement of Hadd) Order, 1979, hereinafter called the Order, recorded by Magistrate 1st Class, Khanewal, sentencing the petitioner to two years' rigorous imprisonment vide judgment dated 31-7‑1983.

2. Briefly the facts are that on 12‑4‑1981 at 7‑30 p.m. S.I. Muhammad Shafi, S.H.O. Police Station Jahania (P.W. 2), Tanveer Elahi, Excise Sub‑Inspector (P.W.1), James (P.W.3) and Ghulam Yasin (P.W. 4) raided the house of Mukhtar alias Karoo, petitioner, in Chak No. 139/1011 on the information that a still was being worked there for extraction of illicit liquor. The raiding party having found the still working and manufacturing liquor in the courtyard of the petitioner seized the apparatus of the still comprising articles and utensils P.1 to P.8 besides the manufactured liquor. Samples from the seized liquor were prepared and sent to the Chemical Examiner for detection of alcohol. A case was accordingly registered at Police Station Jahania and investigated. The Chemical Examiner gave a positive report vide Exh.P.T. The petitioner as well as his co‑accused Yuuns were then challened to Court.

3. At the trial, the prosecution witnesses, namely, Tanveer Elahi (P.W.1), S.I. Muhammad Shafi (P.W. 2) and Ghaulam Yasin (P.W. 4) supported the prosecution case but James (P.W. 3) did not. Learned trial Magistrate, on consideration of material on record, found Mukhtar alias Karoo, petitioner, as well as his co‑accused Yunus guilty under Article 3 of the Order and sentenced them to two years' rigorous imprisonment each. He however, omitted to pass the sentences of whipping and fine provided for the offence. Against his decision an appeal was filed in the Court of Sessions Judge, Multan. Learned Sessions Judge having found that because Tanveer Elahi, Excise Sub‑Inspector (P.W.I.) omitted to mention that Yunus was present at the time of raid in the house where the still was working, acquitted him but at the same time he maintained the conviction and sentence of the petitioner feeling aggrieved the petitioner has approached this Court through the instant revision.

4. Learned counsel appearing on behalf of the petitioner submitted that according to prosecution's own version the still was working inside the house of the petitioner, therefore, the offence committed by the petitioner 3n the meaning of Article 16 of the Order was non‑cognizable, therefore, the raiding party could neither seize any thing by entering the house of the petitioner nor could they arrest the petitioner without being armed with a warrant issued by a competent authority under Article 22 of the Order. He emphasized that due to non‑compliance of the provision of Article 22 of the Order the trial of the petitioner was vitiated and the conviction and sentence recorded by the two Courts below cannot be sustained, on legal plane. Learned counsel appearing on behalf of the State submitted that Article 16(1)(a) of the Order shows that an offence punishable under Article 3 of the Order is cognizable and, therefore, arrest of the petitioner and seizure of the articles found on his premises by the raiding party was quite legal and as such the order of conviction cannot be interfered with.

5. For facility of reference the relevant provision of the Order are reproduced below:‑

3. Prohibition of manufacture, etc., of intoxicants.‑‑Whoever‑‑

(a) imports, exports, transports, manufactures or processes any intoxicant; or

(b) bottles any intoxicant; or

(c) sells or serves any intoxicant; or

(d) allows any of the Acts aforesaid upon premises owned by him or on his immediate possession, shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping not exceeding thirty stripes, and shall also be liable to fine.

16. Cognizance of certain offences ‑‑(1) The following offences shall be cognizable, namely:‑---

(a) an offence punishable under Article 3, and

(b) an offence punishable under Article 4, Article 8 or Article II, if committed at a public place.

(2) No Court shall take cognizance of an offence punishable under:‑

(a) .........................

(b).........................

22. Issue of search warrants .‑‑(1) If any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still, utensil, implement or apparatus in respect of which the alleged offence has been committed.

(2) Any person who has been entrusted with the execution of such a warrant may detain, search and, if he thinks proper, but subject to the provisions of clause (1) of Article 12, arrest any person found in the place searched, if he has reason to believe such person to be guilty of an offence under Article 3 , Article 4 , Article 8 or Article 11.

In Article 16 the Offences mentioned at sub‑clauses (1) (a) and (1) (b) are bracketted together by the use of conjunction "and", therefore, the words "if committed at a public place." occurring at the end of clause (1) (b) qualify the offences mentioned both at (1) (a) and (1) (b). I am, therefore, of the view that an offence punishable under Article 3 is cognizable only if it is committed at a public place, meaning thereby, that if an offence mentioned in Article 3 of the Order is committed at a place other than public place then accused of such an offence can neither be arrested nor can the case property be seized except under a search warrant issued by a competent authority under Article 22 of the Order. By enacting this provision, the legislature intended to save the subject from embarrassment off house search based on false or frivolous information. The provision is quite in consonance with the well‑known saying that a house is the castle of its inmates. In this case, the still was found working in the courtyard of the house of the petitioner which is not a public place, therefore, the raiding party could not enter the premises much less to have entered there for searching any intoxicant, material, still, utensils, etc., or for arresting the persons found present there. To my mind, therefore, the search of the house of the petitioner, without warrant was illegal and consequently the utensils seized and arrests made from there were automatically vitiated. It may be further observed that the facts of the case did not constitute a cognizable offence, therefore, it could not be investigated without obtaining permission of a Magistrate, as enjoined by section 155(2), Cr.P.C. The proceedings initiated on the basis of illegal investigation are further found to be a nullity in eye of law.

6. For the foregoing reasons this petition is accepted, conviction and sentence of the petitioner is set aside and he is acquitted. The petitioner shall be released forthwith provided he is not wanted in any other case.

M.Y.H./M‑526/L Petition accepted.

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