1996 P Cr.

L J 510

[Karachi]

Before Abdul Rahim Kazi, J

MURTAZA HUSSAIN and another---Applicants

Versus

THE STATE and 4 others---Respondents

Criminal Miscellaneous Applications Nos.10 and 11 of 1995(Hyd.) and Criminal

Miscellaneous Applications Nos.234 and 235 of 1995(Kar.), decided on 17th September,
1995 1

(a) West Pakistan Arms Ordinance (XX of 1965)---

----Ss. 13-A, 13-B, 16-B & 13-E---Criminal Procedure Code (V of 1898), Ss.166 & 561-A---
Quashing of proceedings---Complainant S.H.O. during investigation had raided and searched
the shops of the accused situated outside his territorial jurisdiction without having complied
with the mandatory requirements of S.166, Cr.P.C. and on such defective investigation no
conviction could be based---Proceedings pending against the accused in the Court of
Magistrate, thus, amounted to abuse and misuse of the process of the Court and the same
were quashed accordingly.

Lal Mea and others v. Emperor AIR 1926 Cal. 663 ref.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 165 & 166---Copies of the record to be sent to Magistrate---Police Officer conducting
a search under S.165, Cr.P.C. or S. 166, Cr.P.C must send forthwith to the nearest Magistrate
copies of the record prepared by him before undertaking the search, non-compliance whereof
would amount to disregard of a mandatory provision and no conviction can be based on such
defective investigation.

Lal Mea and others v. Emperor AIR 1926 Cal. 663 ref.

Nawab Mirza for Applicants.

Suleman Habibullah for A.-G. for the State

Date of hearing: 10th September, 1995

JUDGMENT

By this common judgment, I intend to dispose of these two matters as they are identical and
the facts and law involved in the case is the same.

Briefly the facts are that on 8-1-1995 one Muhammad Ayub Durrani, S.I.P. as S.H.O., Police
Station, Fort, Hyderabad registered two F.I.Rs. at Cantonment Police Station, Hyderabad
being Crimes Nos.4 and 5 of 1995 under sections 13-A, 13-B, 16-B and 13-E of the Arms
Ordinance. According to the prosecution case as disclosed in the F.I.R. co-accused
Muhammad Zafar had been arrested by Fort Police in Crime No.2 of 1995 under section 13-
D of Arms Ordinance for possessing illicit arms and was kept in police lock-up. The said co-
accused during interrogation in the case F.I.R. No.2 of 1995 of Police Station Fort,
Hyderabad disclosed that he had purchased the weapons recovered from him from Al-Haider
Armoury, Saddar Bazar, Hyderabad through the owners Murtaza Hussain and Mazhair
Hussain and also from Saleem Armoury whose owners are Amir Saleem and Mustansur
Hussain and their servant Abdul Sattar, who all are the present applicants. The said co-
accused is further alleged to have disclosed that he had purchased more weapons, details of
which are mentioned in the F.I.R., from the said two shops and their owners and that the
numbers of those weapons were erased and these weapons are kept in respective cloth bags at
the two Armoury stores. On this, the S.H.O. fort Police Station taking two persons to act as
Mashirs and other police personnel with him raided the two Armoury stores, namely, Al-
Haider Armoury and Saleem Armoury and allegedly recovered the said weapons from the
cloth bags and arrested the present applicants as they could not show any licence for the said
weapons nor any such entries were made in their books. According to the F.I.R., the
applicants and the recovered arms and ammunition were brought to the police station and two
separate F.I.Rs. as above were registered. After usual investigation, the case was sent up for
trial before the Judicial Magistrate-I, Hyderabad. It is in these circumstances that the present
applicants have moved .these applications under section 561-A, Cr.P.C. praying for
quashment of the proceedings pending before the said Court against them.

I have heard Mr. Nawab Mirza, learned counsel for the applicants and Mr. Suleman
Habibullah, learned counsel appearing for the State in the two cases. The learned counsel for
the applicant has argued that is quite unnatural that the co-accused would purchase illicit
arms from the shops of the applicants, get their numbers erased and then again keep the said
weapons with the same shop. He has also argued that the very facts of the two recoveries are
verbatim the same inasmuch as both contained identical allegations of keeping the weapons
in similar bags at the shops. It is also argued by the learned counsel that there was no
occasion for the co-accused Muhammad Zafar to have disclosed the purchase and keeping of
the ammunition with the owners of the shops as in the normal course if such was the fact then
the co-accused would have taken a chance to get the same supplied to his companions instead
of getting the same recovered by the police. These facts, according to the learned counsel,
appear to be doubtful on the face of it.

I have taken into consideration the above contention of the learned counsel. However, it
appears that in investigation of the present case, the police has failed to comply with the
mandatory requirements of section 166, Cr.P.C. It is an admitted fact that the shops of the
present applicants are situate in Saddar Bazar which falls within the territorial jurisdiction of
Cantonment Police Station while the complainant is S.H.O. of Fort Police Station and thus he
could not I have raided the said shops situate outside his territorial jurisdiction unless he
complied with the provisions of section 166, Ci.P.C., and Rules 25.3 and 25.4 of the Police
Rules. It will be advantageous to reproduce the provisions of section 166, Cr.P.C., which
reads as under:--

166. When Officer-in-charge of police station may require another to issue search warrant.
(1) An officer-in-charge of a police station (or a Police Officer not being below the rank of
Sub-Inspector making an investigation) may require an officer-in-charge of another police
station whether in the same or a different district, to cause a search to be made in any place,
in any case in which the former officer might cause such search to be made, within the limits
of his own station.

(2)??????? Such officer, on being so required, shall proceed according to the provisions of
section 165, and shall forward the thing found, if any, to the officer at whose request the
search was made.

(3)??????? Whenever there is reason to believe that the delay occasioned by requiring an
officer-in-charge of another police station to cause a search to be made under subsection (1)
might result in evidence of the commission of an offence being concealed or destroyed, it
shall be lawful for an officer-in-charge of a police station or a Police Officer making an
investigation under this chapter to search, or cause to be searched, any place in the limits of
another police station, in accordance with the provisions of section 165, as if such place were
within the limits of his own station.

(4)??????? Any officer conducting a search under subsection(3) shall forthwith send notice of
the search to the officer-in-charge of the police station within the limits of which such place
is situate, and shall also send with such notice a copy of the list (if any) prepared under
section 103, and shall also send to the nearest Magistrate empowered to take cognizance of
the offence, copies of the records referred to in section 165, subsections (1) and (3).

(5)??????? The owner or occupier of the place searched shall, on application, be furnished
with a copy of any record sent to the Magistrate under subsection (4):

Provided that he shall pay for the same unless the Magistrate for some special reason thinks
fit to furnish it free of costs. "

The above subsections (3) to (5) were added under section 37 of Act XVIII of 1923. A plain
reading of the above provision of law would show that it is mandatory for officer-in-charge of
a police station who desires to make a search in any place outside his territorial jurisdiction to
make a request to the officer incharge of the police station having territorial jurisdiction to
make such search. However it further provides that in case the first Police officer is of the
view that there may be a delay caused in following the said procedure which may result in
evidence being concealed or destroyed then he may cause the said search to be made by
himself but he has to issue forthwith a notice for search to the officer-in-charge of the police
station having the territorial jurisdiction. He has also to send with such notice a copy of the
list (if any) prepared under section 103 and shall also send to the nearest Magistrate
empowered to take cognizance of the offence, copies of the records referred to in section 165,
subsections (1) and (3). The learned counsel appearing for the State on query from the Court
has submitted that the said mandatory provision of subsection (4) above has not been
complied with. A plain reading of subsection (4) would show that it is intended as an
additional safeguard to protect individual against general or roving searches and the omission
to comply with such provision of this subsection will render a conviction liable to be set
aside. A reference may be made to the case of Lal Mea and others v. Emperor AIR 1926 Cal..
663. It may further be observed that to hold otherwise would render this clause in many a
case a dead letter. It is essential that a Police Officer conducting a search under section 165 or
166 of the Criminal Procedure Code should send forthwith, to the nearest Magistrate, copies
of the record that he has prepared before undertaking the search and non-compliance in such
cases would amount to disregard of a mandatory provision and no conviction can be based on
such defective investigation. Similarly the provisions of Rules 25.3 and 25.4 have also not
been complied with in the present case. These provisions read as under:--
25.3 Action when offence occurring in another police station is reported. When the
occurrence of a cognizable offence in another police station jurisdiction is reported, the fact
shall be recorded in the daily diary and information shall be sent to the officer-in-charge of
the polite station in the Jurisdiction of which the offence was committed meanwhile all
possible lawful measures shall be taken to secure the arrest of the offender and the detection
of the offence.

25.4 Where offence a ears to have occurred in other police station.--- (1) If a Police Officer
after registering a case and commencing investigation discovers that the offence was
committed in the jurisdiction of another police station he shall at once send information to the
officer-in-charge of such police station.

The learned State counsel has not been able to produce any material on record to show if
such compliance has been made. I had also called for the R&Ps. from the trial Court. The
R&Ps. do not contain any intimation sent to the Court under section 166, Cr.P.C. In these
circumstances, I am of the view that this is a fit case for quashment of the proceedings as the
same would amount to abuse and misuse of the process of the Court. Accordingly, I allow
these two applications and direct the proceedings pending against the applicants in Cases
Nos.7 and 8 of 1995 before the Judicial Magistrate-I, Hyderabad to be quashed and
applicants be, acquitted. The applicants are on bail, their bail bonds stand cancelled.

N.H.Q./M-2158/
K????????????????????????????????????????????????????????????????????????????? Proc
eedings quashed.