FIDA JAN vs THE STATE

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Succinctly stating facts of the case are that petitioner Fida Jan son of Wali Muhammad Alkozai was arrested on 23rd February 1999 in the early hours by P.W. 2 Shahban Ali (complainant) IP/CIA during raid at his house situated in Pashtoonbagh Kharotabad, Quetta as 23-1/2 + 3-1/2 = 26 kilograms Charas was recovered from a drum lying inside the residential room of his house. The recovered narcotics was taken into possession vide recovery memo. Exh. P/1-A. Accordingly vide Marasala Exh. P/2-A case was registered at Police Station Brewery Road, Quetta. A perusal of F.I.R. No,27 of 1999 of even date indicates that petitioner was booked under section 9/11 of Control of Narcotic Substances Act, 1997 (hereinafter referred to as the "Act").

2. On completion of investigation challan against the petitioner was filed in the Court of Special Judge appointed under the Control of Narcotic Substances Act, 1997, as petitioner did not plead guilty to the charge and claimed to be tried, therefore, to substantiate accusation prosecution led evidence of P.Ws. Azizul Mulk, Shahban Ali, IP/CIA, Syed Abdul Jabbar (Chemical Expert, FSL, Quetta), Amanullah, S.I. And Muhammad Tariq S.-I./I.O. The petitioner examined himself on oath as well as under section 342, Cr.P.C. In both the statements he denied the prosecution case. Statement of Amir Hamm D.W.1 was got recorded by the petitioner in support of his plea of innocence.

3. Learned Special Judge vide judgment dated 7-12-1999 concluded that prosecution has proved its charge against the accused beyond reasonable doubt. As such petitioner was convicted under section 9 -(c) of the Act and sentenced to life imprisonment and fine of Rs,5,000 or in default in payment of fine he was ordered to further undergo 3 months' R.I. Benefit of section 382-B, Cr.P.C.

Was also extended to him.

4. Petitioner feeling aggrieved from the order of conviction/sentence dated 7th December, 1999 submitted Criminal Appeal No,366 of 1999 before High Court of Balochistan which has been dismissed vide impugned judgment dated 19th April, 2000. As such instant petition has been filed for leave to appeal.

5. Mr. Tahir Muhammad Khan learned Advocate Supreme Court contended that in accordance with section 20 of the Act the raiding party of CIA was bound to obtain search warrants from the Special Court particularly when information was received a day before conducting raid, that the petitioner is in possession of narcotics etc.

6. We have, considered the implication of section 20 of the Act. It appears that the law givers have coached this section oilaw in such manner that it does not place a mandatory obligation upon the Investigating Agency to obtain search warrants from the Special Judge before conducting a raid.

However, we may mention here that all parts of a statute are required to be enforced in letter and spirit and no plea can be entertained that a particular part of a statute is redundant. But from the language employed in a statute it can be gathered whether it is mandatory or directory in its nature. We have noticed that in section 20 of the Act word "may" has been used with reference to obtaining search warrants by the agency who intended to effect search of a house, place, premises or conveyance etc. It is also known principle of interpretation of statute that word "may" sometimes can be used as "shall". But perusal of section 20 of the Act suggests that law has not prescribed consequences of conducted search without obtaining the warrants from Special Court.

Thus, we are of the opinion that it is directory in nature, therefore, depending upon facts and circumstances of each case if the Investigating Agency has not obtained search warrants from Special Judge before conducting raid in a house for the recovery of narcotics, this.Reason alone would not be sufficient to vitiate the trial. This argument can be strengthened by an added reason as well that apparently no prejudice has been caused to petitioner as is evident from the record of the case, by conducting raid at his home, by the C.I.A. Staff in pursuance whereof huge quantity of Charas was recovered.

7. There is yet another important aspect of the case which has engaged our attention namely whether petitioner being a citizen was not entitled to the protection of Article 14 of the Constitution of Islamic Republic of Pakistan because we understand that the object of conducting raid after obtaining warrants of search from the Court is to ensure privacy of home of citizen in whose house raid is conducted. As far as fundamental right enshrined in Article 14 of the Constitution is concerned it being an inalienable right cannot be denied to any citizen notwithstanding the fact that he is involved in a case but in view of the given facts and circumstances of this case due care has been taken by the raiding party as it was not only headed by high officials of police department but they were also accompanied by Duty Magistrates. Therefore, we are inclined to hold that the police party has not committed any violation of fundamental rights of petitioner conferred upon him by Article 14 of the Constitution of Islamic Republic of Pakistan.

8. It may be noted that in cases of narcotics the law enforcing agencies have to keep certain information secret till the last hours relating to the recovery after conducting raid at a particular place. Because if such precautionary measures are not adopted and secret information about concealing or running business of narcotics etc., are allowed to spread out, there would be a raid but without success as in the meanwhile accused persons shall manage to shift the drugs to some other place. 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.

9. It was next contended by learned counsel that compliance of section 103, Cr.P.C. Was mandatory in view of judgment of this. Court in the case of State v. Bashir and others PLD 1997 SC 408. This judgment has not rendered any help to him because under section 25 of the Act application of section 103, Cr.P.C. Has been excluded. This aspect of the case has been thoroughly discussed in the ,impugned judgment by the learned Judges of the High Court and the findings recorded in this behalf admits no interference. Accordingly contention of the learned counsel is overruled.

10. Mr. Tahir Muhammad Khan, learned Advocate Supreme Court also contended that the house from where recovery of 26 kilograms of Charas is effected was not under the exclusive control of petitioner, as according to him so many persons including his step-brother Painda Khan was also residing in the said house, therefore, petitioner is entitled for benefit of doubt on this score as well.

We are not inclined to agree with the learned counsel because overwhelming evidence has come on record that recovery of Charas has been effected from the residential room of the petitioner.

During trial petitioner failed to substantiate that recovered articles were not in his exclusive possession, therefore, merely raising plea that some other persons also occupy the house would not be sufficient to exonerate him from the charge.

' It may also be noted that under section 29 of the Act the trial Court is empowered to presume that accused facing the trial is in possession of illicit articles unless and until it is proved to the contrary.

As such in view of section 29 of the Act burden was upon the petitioner to have proved that the articles were not recovered from his exclusive possession but someone else residing in the same house was in its possession. Thus, for this reason the argument so put by learned counsel is repelled.

11. Learned counsel Mr. Tahir Muhammad Khan also stressed that C.I.A. Authorities have no jurisdiction to conduct raid in his house for the purpose of recovery of narcotics. The argument has no force and it can be disposed of by making observation that in the instant case after effecting recovery of narcotics C.I.A. Itself has not further proceeded with the matter as the case was got registered by P.W. Shahban Ali, IP/CIA at Brewery Road Police Station. Therefore, if there was any discrepancy that stands rectified.

12. It was also contended by learned counsel for the petitioner that petitioner had enmity With one Karim, therefore, he managed to involve him in the commission of offence. Suffice it to observe that no evidence has come on record in this behalf. Therefore, in absence of any material at this stage it is not possible for us to agree with the learned counsel.

Thus, for the foregoing reasons we see no merit in the petition as such the same is dismissed and leave to appeal is refused.