1999 P Cr (PLP)

In his defence the appellant tendered in defence certain documents which have been Exhibited as Exh.D.A., Exh.D.B., Exh.D.C., Exh.D.D. and Exh.D.E., and a letter issued by the Frontier Post and is marked as "A". The co‑accused Khasta Bagh has also been convicted in the present case but it appears that he has not filed any appeal. In reply to question under section 342, Cr.P.C. he has replied as under:‑‑ "I neither taken the heroin from police nor handed over to Abdul Waheed nor I received any money from Abdul Waheed. The whole story is concocted one and incorrect. And even I do not know Abdul Waheed my co‑accused."

6. I have heard the learned counsel for the appellant and State. The contentions of the learned counsel of the appellant are that there is a clear violation of the mandatory provisions of section 103, Cr.P.C.; that there are material conflicts and discrepancies among the P.Ws.; that Muhammad Azhar (P.W.5) has deposed of about the pointation of documents Exh.P.5 and Exh.P.6 by the appellant on 2‑5‑1995 but according to the remaining evidence the appellant was already arrested on 24‑4‑1995 and was in judicial custody on 2‑5‑1995 and, therefore, there are indications of the fabrications in the case by the prosecution; that no recovery was made from the appellant and his co‑accused has denied even the acquaintance with him and that the appellant has proved through documents tendered by him that the prosecution has acted under malicious intentions to teach a lesson to a truthful and out spoken press reporter.

7. The learned counsel for the State has contended that even if the enmity with the police is proved, yet the police cannot foist 2 kilograms of heroin for being costly material; and that the prosecution has proved the case beyond reasonable doubt.

8. The first and foremost contention of the counsel for the appellant is that there is a clear violation of the mandatory provisions of section 103, Cr.P.C. This section reads as under:‑‑ "Search to be made in presence of witnesses.‑‑‑ (1) Before makin; a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. (2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it." What I find from the record is that all the witnesses of recovery are not only the police constables but also belong to the patrolling party laid by P.W.7 Muhammad Jehangir who is himself S.H.O. complainant and Investigating Officer had the defence plea of enmity with the police not been taken and had the documents in the defence not produced i.e. Exh.P.W.‑A to P.W.‑DE as well as certificate marked is A, I would not have considered this contention as it is by now an established principle that the witnesses of police are as good witnesses as the witnesses from the public and the Mashirs of police are as good as Mashirs from the public provided that it is explained in the evidence as to why and under what circumstances the mandatory provisions of section 103, Cr.P.C. have been violated and as to why the witnesses from the public have not been joined. In this context I have thoroughly gone through the rulings enunciated by Mr. Justice Ajmal Mian and Mr: Justice Salim Akhtar (as he then was) in a judgment reported as PLD 1997 SC

408. These rulings are quoted verbatim from, the heading as under:‑‑ "(b) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 103‑‑‑Recovery‑‑‑Requirement of 5.103, Cr.P.C. namely that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public‑‑‑If, however, the statement of the Police Officer indicated that no efforts were made by him to secure two . Mashirs from public, the recoveries would be doubtful. A Police Officer produced as a witness for the prosecution can be relied upon like other prosecution witnesses but as he is an Investigating Officer or attached with the investigation staff, the Courts as a matter of prudence and safe administration of justice, scrutinize the evidence of such witnesses with care and caution. Where circumstances permit, the evidence may be accepted to prove arrest or recovery but in order to make it credible and authentic the prosecution must explain the circumstances for non‑compliance with the provisions of section

103. Section 103 read with section 164, Cr.P.C. lays down the mode for recovery and search but, as in certain circumstances a deviation may be made, it would be proper to explain the reasons for such deviation. So far the acceptability of the evidence of the Police Officer is concerned, the general principle is that if there is no animus or mala fides, the investigation has been straight and honest and no substantial defect or infirmity has been pointed out in the evidence or brought through cross-examination, the evidence of such a witness, though a policeman, may be accepted. However, in cases of recovery, this principle is accepted subject to furnishing an explanation by the prosecution for non -compliance with section 103." When I took into the evidence I find that on the one hand complainant, Investigating Officer and S.H.O. is the same person and on the other hand Investigating Officer has not explained as to why he has not arranged for the joining of the respectable persons of the locality specially when he had time enough to have arranged specially when Khaista Rehman had already given his statement and had apprised about the coming of the appellant at least 4 to 5 hours before hand as alleged. In view of this position and in the circumstances of the case I find that the rulings of the Honourable Supreme Court of Pakistan as quoted above are relevant and are to be applied to the present case and, therefore, I hold that the learned counsel for the appellant is correct in his contention that there is a clear violation of the provisions of section 103, Cr.P.C. which violation in itself is not curable.

9. Another contention of the learned counsel for‑the appellant is that there are material conflicts and discrepancies among the P.Ws. In this context a reference has been made to the following contradictions emerging from the evidence. Mumtaz Khan (P.W.6) H.C., has deposed that at about 7 or 7‑30 a.m. the appellant came at Haji Shah Mor in his Car No.RIP‑4817 and was apprehended and arrested. In conflict to this deposition, Muhammad Jehangir (P.W.7), complainant and Investigating Officer and S.H.O. has deposed that the appellant came in his Car No.RIP‑4817 from Rawalpindi and stopped at Haji Shah Mor at about 9‑55 a.m. This discrepancy of about 2 hours and 30 minutes is enough to dislodge the story of the prosecution specially when the position of defence as taken by the appellant in his reply to question No.6 in his statement under section 342, Cr.P.C. is that he was called in the office of S.P., Attock and parked his car in the same office and there theft he came to, know that he has been involved in the present case and the car was impounded. (2) Altaf Hussain (P.W.3) has replied to a suggestion that all the Police Officers were in the uniform at the time of occurrence and at the time when the present appellant was apprehended, but in conflict to this Mumtaz Khan (P.W.6) has replied to a suggestion that the police party was in civil dress when the appellant stopped his car and was arrested. (3) Muhammad Azram (P.W.5) had deposed that the colour of the car was white whereas actually the colour of the car is blue. Although these discrepancies can be considered as minor and cannot dislodge the story of the prosecution on their own, but when looked into in the general perspective of the case. These discrepancies do count.

10. It appears from the impugned judgment that the trial Court had not applied its mind in respect of the documents produced in defence by the appellant. Since these documents have been exhibited, and the prosecution has not challenged these documents, therefore, the documents hold ground and are to be looked into while keeping in view the plea of the defence of the appellant that there is a clash between police and press reporters at Lahore and that clash has become the raison d'eiter for the present case. Document marked as A is a certificate from the Frontier Post in favour of the appellant which reads as under:‑‑ We are glad to certify that Mr. Abdul Waheed Khan son of Abdul Rasheed Khan has joined The Frontier Post in June, 1990 to 1995 as Circulation Manager at 10 Shahara‑e‑Fatima Jinnah, Lahore, during his service he endeared himself amongst the members of the staff due to his honesty, sincerity and hard working. He is a man of possessing amiable manners and an imposing personality. He is obedient and asset to our organization. He is quite fit for to shoulder any job, where honesty and integrity and sincerity are the determining factors. He work and conduct have been highly satisfactory, therefore, we recommending him strongly for such an assignment in future." Exh.D.D. is a press Card issued by a periodical Bhulekha in favour of the appellant indicating him to be the Deputy Editor of the said periodical Exh.D.E. is a Press Card showing the appellant as a Deputy Editor of weekly Post Mortem, Lahore. A Passport No.B665176 is indicating that the appellant is Circulation Manager of the some periodical Exh.D.A. is a photograph published in the Frontier Post, Lahore, dated 17‑1‑1992 in which the appellant has been shown as the Circulation Manager of the Frontier Post and from the details it appears that he has been holding some important position in this paper. Exh.D.C. is a column, dated 30‑11‑1997 to 6‑12‑1997 in weekly Post Mortem in which the appellant has written a column about Mst. Nusarat Shaheen (politician) in his pen name Waheed Khan and has criticized her in a harsh Language which must have created a lost of resistance for him. Then in this paper Post Mortem there are many news which are directly involving the police personnel and are demanding a thorough enquiry about the police personnel indicting the higher bureaucrats of the police. Exh.D.B. is a column in the said weekly, dated 21‑12‑1997 to 27‑12‑1997 written by the appellant in his pen name about Kalabagh Dam in this paper also carries many news against the high handedness of the bureaucracy. All these documents produced in defence are clearly indicting that the appellant has been an active person in the press, not only as a Circulation Manager but also as a writer of the columns condemning the bureaucracy and the politicians in harsh language which appears to have teased the police personnel.

11. So far as the allegation of documents Exh. P.6 is concerned, it is simply an application given by the appellant for the Superdary of the car involved in the present case as well. It was involved in a case registered against the appellant's father Abdur Rashid at Police Station Iqbal Town, Lahore under Article 3/4 of the said order and so is the case of the challan Exh.P.W.5. It has been stated by the prosecution that the appellant is a habitual dealer in the narcotics in view of these documents Exh.P.6 and Exh.P.5. I do not agree with this point of view of the prosecution due to the fact that first of all it is not known as to whether the appellant's father Abdur Rashid was acquitted in the said case or convicted or whether the case is still under trial. Unless a person is not proved to be guilty in an offence he is presumed to be innocent. Therefore, I hereby presume Abdur Rashid as an innocent person in case he has not been convicted. Even if I presume that the father of the appellant Abdur Rashid is acquitted or has been convicted, yet I am guided by the Principles as laid down by the Holy Qur'an and the Sunnah. Verse No.15 of Surat No.17 (Sorah Bani Israil) reads as under:‑‑ "Who receiveth guidance, Receiveth it for his own Benefit: who goeth astray Doth so to his own loss: No bearer of burdens Can bear the burden of another: nor would we Visit with Our Wrath Until We had sent An apostle (to give warning)." In view of the principles as shown above, a father's guilt; whether proved or not, cannot be thrown into the neck of his son. While determining the guilt of the present appellant, this principle has been violated and a presumption has been created that the appellant is a habitual dealer in the narcotics.

12. In view of the above made discussion, I have come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubts. Consequently, the benefit of doubt is extended to the appellant. The impugned judgment is set aside and the appeal is accepted. The appellant Abdul Waheed son of Abdul Rashid shall be released in case not wanted in any other case. N.H.Q./38/FSC Appeal accepted.