ARSHAD ALI and 2 others vs THE STATE

' Abdul Razzaq, Sub-Inspector/S.H.O., Police Station Hazro had laid a picket on Shadi Khan Chowk on the night of 31-8-1990. At about 4-00 a.m. He received information that Arshad Ali, Asad All and Amjad Ali residents of Formulli, appellants herein, were about to transport narcotics in their Car No,Sialkot 9721 standing in front of their house. The S.H.O. Raided the place of occurrence. Appellant Arshad Ali was occupying the seat of driver of the car while appellant Amjad Ali was sitting on the seat next to him and appellant Asad Ali was sitting on the rear seat. Appellant Arshad All fled away on seeing the police party. The two other appellants were apprehended and search of the car was carried out. Heroin weighing 500 grams, Charas weighing 4 kilograms and 31 bottles of liquor were recovered from the boot of the car. The S.H.O. Took samples from all the narcotics and also sent written complaint to Police Station Hazro for registration of the case.

2. Appellant Arshad All was arrested on 25-9-1990. After investigation all the 3 appellants were sent up for trial before Qazi Habib-ur-Rehman Anjum, Assistant Commissioner/Magistrate 1st Class, Attock exercising powers under section 30, Cr.P.C., who charged them under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, to which all the three appellants pleaded not guilty and claimed trial.

3. 5 prosecution witnesses were examined on behalf of the State. All the 3 appellants made depositions under section 342, Cr.P.C. They also produced defence witnesses and also made depositions on oath.

4. After the conclusion of the trial the learned Magistrate convicted all the 3 appellants under Article 4 of the Prohibition Order and sentenced each of them to undergo rigorous imprisonment for 3 years, to suffer 10 stripes and to pay a fine of Rs,10,000 or in default to undergo simple imprisonment for 4 months. All the 3 convicts have challenged their conviction and sentences by the appeal in hand.

5. The raid was conducted at 4-00 a.m. On 31-8-1990 and appellant Arshad Ali was not apprehended from the spot. It was the case of prosecution that the other two appellants were apprehended from inside the car and the narcotics were also recovered from its boot. It is significant to note that the car was never produced as case property during the trial. The defence witnesses, who are residents of the same area and lived in the houses dose to the house of the appellants, had all deposed on oath that the police party had raided the house of the appellants for carrying out its search for the purpose of recovery of the narcotics. The non-production of the car as case property during the trial would lend credit to the defence version that the police party had raided the premises of the appellants and had carried out search thereof. However, the complainant had not taken two respectable persons of the locality alongwith him for the search proceedings. Consequently he had violated the mandatory provisions of section 103, Cr.P.C. This was an illegality and had rendered the entire search proceedings invalid. Moreover appellant Arshad All was not present at the spot at the time of occurrence and he could not be charged for being found in possession of any narcotics.

6. Consequently the appeal is accepted. The conviction and sentence of appellants Arshad Ali, Asad All and Amjad Ali sons of Rahat All Khan are set aside. They are acquitted of the offence for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case.