1997 P Cr (PLP)

SHAFI MUHAMMADI, J.

Appellant Moinuddin son of Maqbool Ahmed has called in question his conviction and sentence awarded by the Judge, Special Court No. l (Suppression of Terrorist Activities), Hyderabad announced on 15th day of November, 1993 in Criminal Case No. 121 of 1992 arising out of an F.I.R. No.79/92 registered on 4-8-1992 at City Police Station, Hyderabad under section 13(c) of the Arms Ordinance lodged by S.H.O. Mairaj Hussain Shah on behalf of the State.

2. The prosecution story and other facts surfaced during proceedings of the case can be summarised as under:-- (i) As per F.I.R. information was given to the complainant by some personal belonging to Law Enforcing Agency, but neither any of them was named in the F.I.R. nor in the charge-sheet. (ii) Only two witnesses namely, Mairaj Hussain, S.H.O. City Police Station in capacity of complainant and Qudrat Sher, A.S.-I. Pinyari Police Station were examined on 26-12-1992 and on 2-11-1993 respectively by the prosecution. The side of the prosecution was, thereafter, closed on the same day i.e. 2-11-1993. (iii) The appellant got himself examined on oath under section 340(2), Cr.P.C. on 4-11-1993 and also examined one Fazal Mehmood on 7-11-1993 in his defence. (iv) As per record of the case, members of the Law Enforcing Agency reached the police station at about 1-00 hours on 4-8-1992, then the police alongwith other members of. Law Enforcing Agency reached the house of the appellant from where-- (a) one KK No.56-2-7002723; (b) magazine; and (c) one mauser of 7.63 bore, were alleged to have been recovered at about 2-30 hours as mentioned in Mashirnama of recovery Exh.5. The appellant was arrested, brought to the police station where F.I.R. was lodged and after completion of investigation challan was submitted before the Special Court, Two witnesses of the prosecution, as mentioned above, were examined by the Court and they narrated the story as authored in the F.I.R. (v) Contrary to the story of the prosecution the appellant defended himself in his statement recorded under section 340(2), Cr.P.C. (Exh.No.10) by stating therein that he was photographer of English Newspaper "Nation" and had given coverage to the functions of political parties. He was asked to provide information s about the whereabouts of certain political persons but he was not in a position to give the same. Hence he was arrested between the night of 3rd and 4th August, 1992 from his house where 30/40 family members, including the ladies, were living in the house. The list of all those family members was also brought .on record during the trial, with supporting documents. Hence, as per his defence, he was politically victimized. (vi) At the conclusion of the trial, the appellant was convicted for the offence under section 13-E of the Arms Ordinance and was sentenced to suffer R.I. for four years, hence this appeal.

3. Mr. Nawab Mirza, learned counsel for the appellant assailed the judgment of the Special Court on several grounds by pin-pointing certain contradictions in the evidence of the prosecution, absence of independent witnesses, violation of the provisions contained in section 103 of Cr.P.C. etc. Several judgments were also relied upon by the learned counsel in support of his contention including an unreported case of Awais Shibli v. The State decided by one Division Bench of this Court (Hyderabad Circuit) and incidentally one of us (Shaft Muhammadi, J.), was the member of that Bench. In that case also Mr. Abdul Ghani Shaikh, A.A.-G., Sindh had appeared on behalf of the State and he took the same stand in that case of Awais Shibli as has been taken in this case but his contention had been repelled by the Division Bench.

4. It has been mostly observed in criminal cases that, regarding search section 103, Cr.P.C. is supported by the prosecution, assailed by the defence and discussed by the Court without giving the facts and circumstances of the cases, which differ in each and every case. Whenever the prosecution fails to comply with the mandatory provisions of section 103, Cr.P.C. it refers the case of Muhammad Naeema alias Naeema v. The State reported in 1992 SCMR 1617 wherein the Honourable Judges of the Supreme Court had observed that police officials were as good witnesses as any other citizen and their deposition could not be brushed aside simply on the bald allegation that they belonged to the Police Department unless mala fide was established against them. Unfortunately, the learned Advocates appearing for the prosecution or even on behalf of the accused do not discuss the peculiar circumstances of the cited case, which make that case totally distinguishable from the cases usually dealt by the Courts as in the present case. The appellant in that case had led the police to his house wherefrom K.K was recovered during the course of investigation, he then absconded after his appearance in the trial Court on 13-5-1991, warrants of arrest were issued against him, proclamation under section 87, Cr.P.C. was published in the newspaper, and he was tried in absentia. After his arrest belated submission of appeal could not satisfy the Lahore High Court, hence the appeal was dismissed. Under these circumstances nothing was or could be alleged against the police officials regarding their personal grudge or mala fides. It is important to point out that one of the Honourable Judges of the Supreme Court (Mr. Justice Saleem Akhtar who was the member of that Bench in the cited case) had authored the famous case of Yar Muhammad and 3 others v. The State reported in 1992 S,CMR 96, wherein the provisions of section 103, Cr.P.C. were judged with reference to the cases reported in PLD 1975 SC 607, 1983 SCMR 1, PLD 1983 SC (AJ&K) 211; 1989 SCMR 491, 1985 SCMR 854, 1986 SCMR 17, 1987 SCMR 1177, 1989 SCMR 491, PLD 1975 Kar. 92, PLD 1990 Kar. 275, PLD 1990 SC 1083, PLD 1991 SC 447, PLD 1988 Kar. 409 and PLD 1990 Kar. 314 and it was held by Honourable Judges that:-- "Unless from the facts and circumstances of the case it is not possible to obtain Mashir of the same locality where the recovery and arrest is made, the prosecution may pick up any other person to act as such, otherwise it is the duty of the Investigating Agencies to pick up Mashir from the locality itself." It is, therefore, necessary for the parties concerned to take into consideration all the facts and circumstances at the time of supporting the case of prosecution or defending the accused in respect of the provisions contain" in section 103, Cr.P.C.: (i) Whether the arrest of the accused and the search took place at the same time? (ii) Whether the accused was already in custody when he led the prosecution to the search during investigation? (iii) Whether there were peculiar circumstances due to which provisions contained in section 103, Cr.P.C. could not be complied with.

5. Hence we considered it necessary to give brief summary regarding scope of section 103, Cr.P.C. Although sections 47, 51, 52, 98, 102, 165 and 166 of the Code of Criminal Procedure also deal with the search yet the provisions of section 103, Cr.P.C. are usually dealt by the Court. For the purpose of present appeal too, as the same section is relevant, therefore, it would be advantageous to reproduce the same which runs as under:-- "

103. Search to be made in presence of witnesses.

(1) Before making 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 order 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. (3) Occupant of place searched may attend. The occupant of the place searched, or some person in his behalf, shall in very instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request. (4) When any person is searched under section 102, subsection (3) a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request. (5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 18 of the Pakistan Penal Code." It is thus clear that the officer who is conducting search

(i) shall call upon two or more respectable inhabitants of the locality; (ii) the search shall be made in their presence; and (iii) occupants of the place of search shall be permitted to attend the search. However, it may be possible that the officer, who is conducting search might not be in a position to comply with all or any provisions of section 103, Cr.P.C. as mentioned above because there may be circumstances where the concerned Police Officer may not be able to get even his own police officials to witness a search. For example, if ally person of locality refuses to attend and witness a search when called upon to do so, in spite of an order in writing delivered or tendered by the officer to him, then it is obvious that the officer would not be able to go and find out witnesses to witness the search. In such case, such Officer is left with no other alternative but to depend upon the police officials who accompanied with him to witness the search. But in these circumstances, the said Police Officer must bring on record the details of all those persons who refused to attend and witness the search because such refusal is an offence under section 187 of P.P.C. If the police record is totally silent on this point or the said officer remained silent about these facts during his examination-in-chief at the time of his evidence before the trial Court then it can be presumed that the officer had intentionally violated provisions of section 103, Cr.P.C. and that is sufficient to make the search doubtful. Similarly, if any police party has surrounded a lonely place where dacoits are stated to be hidden, then it would not be possible to arrange witnesses as required under section 103(1), Cr.P.C. If any police officials arrests any accused involved in cognizable offence and recover a weapon from him at such lonely place where no one is available to witness the arrest and the search, then compliance of section 103, Cr.P.C. under such circumstances is out of question. Thus, requirement of search witnesses would stand waived where search was made at lonely places or at odd hours or when abscondence of the accused with incriminating articles was apprehended if the searching officer has spent time to secure witnesses to witness search. Another requirement of section 103(3), Cr.P.C. is to permit the occupants of place searched to attend during the search if no one lives in the place to be searched except the offenders, then compliance of this provision is not possible. Contrary to the above if several persons live in a place which is to be searched by any officer, as in the present appeal, then non-compliance of this provision, which is mandatory in its nature, may not be ignored by the Courts. A competent Investigating Police Officer would definitely mention the reasons if this provision of the law has not been complied with. In the present appeal we have observed from the paper book that the statement of the Investigating Officer/complainant and the Mashir (both police officials) are totally silent regarding reasons of non-compliance of section 103(1), Cr.P.C. for not calling respectable inhabitants of the locality. Even the police record does not show any specific or peculiar circumstances to justify "non-compliance" of this provision of law. Hence the only possible presumption, which can be gathered by this Bench is that the Police Officers, who conducted the search, deliberately avoided to comply with the mandatory provisions of section 103, Cr.P.C. The Investigating Officer of the case had stated in the cross-examination that he had tried to obtain private Mashirs from that Mohallah but nobody came out but there is nothing on the record to support this statement which came out of the mouth of the witness during cross-examination due to the mistake of the Advocate for the appellant. Besides the above, the Mashir of recovery, namely, Qudrat Shah stated in cross-examination that he did not give any attention towards the children anti women-folk. This witness also stated that he did not remember whether on the night of the incident, people were sitting in the Chowk in front of the house of accused to listen commentary of hockey match between Pakistan and Spain, Such kind of answers by any prosecution witness given no other expression except that the suggestions put by the defence counsel have not been denied.

6. Another important aspect of the case, which cannot be ignored by this Court, is the recovery of one T.T. Pistol (mauser) also at the time of search. It was admitted by P.W. Qudrat Shah that no case in respect of mauser was registered against the appellant. Even the charge (Exh.2) framed by the Special Court against the appellant shows that the appellant was tried for an offence under section 13-E, Arms Ordinance only for possessing one K.K. alongwith one magazine without any licence in contravention of section 9 of the Arms Ordinance. There is no mention of T.T. Pistol (mauser) in the charge and admittedly there is registration of case or any F.I.R. in respect of that unlicensed T.T. Pistol, hence the recovery of other articles becomes doubtful. In a case of such nature where entire prosecution story depends upon the recovery of deadly fire-arms, the Investigating Officer must be very cautious not to leave any lacunae. If the Investigating Officer of this case was unable to procure the witness of locality to witness the search, it was his duty to bring on record the reasons for non-compliance of different provisions of section 103, Cr.P.C. As there is nothing on the record to justify the conduct of the Investigating Officer regarding non-compliance, with letter and spirit of the provisions of section 103, Cr.P.C., therefore, it is difficult to maintain conviction of the appellant on the basis of such evidence, even if contradictions pointed out in that evidence by the learned counsel for the appellant are ignored. We had, therefore, allowed the appeal, set aside the conviction and sentence of the appellant and ordered his acquittal by our short order, dated 16-11-1994 and aforesaid are the reasons for the same. N.H.Q./M-2146/K , Appeal allowed.