1994 P Cr (PLP)

Hafiz SA. Rahman for the State. Date of hearing: 10th October, 1994. By judgment dated 28-6-1994, passed in Sessions Case No.447 of 1993, the learned Sessions Judge, Karachi South, convicted appellant Muhammad Yousaf alias Bengali, son of Noor Muhammad, in Crime No.14 of 1993, Police Station Special Anti-Narcotic Team (Crime Branch), Excise, Karachi, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to rigorous imprisonment for a period of five years, ten stripes and also to pay a fine of Rs.5,000 and in default of payment of fine to suffer R.I. for further period of three months. Benefit of section 382-B, Cr.P.C., has been extended to the appellant. Being aggrieved, the present appeal has been filed by the convict. I have heard at length the arguments of Mr. Sardar Muhammad Ishaq, learned counsel for the appellant, and Hafiz SA. Rahman, learned counsel appearing for the State. .

2. According to the prosecution, at 6-00 p.m., on 6-9-1993, Inspector, Azizullah Baloch (complainant and P.W.3) received spy information that appellant was selling heroin powder in his house near a Gali in Lyari Quarter, Karachi and, accordingly, the Inspector alongwith Inspector, Abdul Qadoos and 8/10 Constables proceeded to the said house and reached there at about 8-00 p.m., where he found that one person was going out from the street with one cloth Theli in his hand. Inspector Azizullah Baloch introduced himself to the said person, who described his name as Muhammad Yousaf Bengali. After completing search formalities, the cloth bag was taken into possession by Inspector Azizullah Baloch and when it was-opened three plastic bags were found which were, wrapped in Khaki paper envelope and it contained heroin powder. The appellant was arrested. Two of the Thebes were found to contain one kilo powder each and the third Theli contained 500 grams making a total weight 2,500 grams. According to the prosecution, the Inspector took separate samples of ten grams each from the Thelies and put the same into three plastic Thelies for the purposes of chemical report. According to the prosecution, the Thebes were sealed at the spot and Mashirnama was prepared. Later on, the appellant was challaned under` Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979.

3. The prosecution depended on three witnesses, namely, two recovery Mashirs, P.W.1 Ali Bakhsh and P.W.2 Salim Khan, and Inspector Azizullah Baloch together with the Chemical Examiner's report which was positive. In his statement under section 342, Cr.P.C., the appellant denied the allegation that he had been arrested with 2,500 grams of heroin found on his person and stated that he was innocent and had been falsely implicated in the case due to enmity. He stated that, on 6-9-1993 at about 7-30 p.m., Inspector Azizullah Baloch raided his house and beat him up and in the beating the appellant lost one tooth and that appellant's wife was also maltreated and his wife filed a direct complaint in the Court and, earlier, on 7-9-1993, also sent application to the Governor of Sindh and other authorities. He produced photostat copies of the reports and applications. According to the defence, there was an earlier F.I.R. No.12 of 1993, dated 6-8-1993 of the same police station with the same complainant Inspector, Azizullah against the appellant under Article 3/4 of the Prohibition Order, 1979, in which the appellant had been shown to be an absconder and the Inspector had raided the house of the appellant on 6-9-1993 apparently for arresting the appellant, but in the process the present false case No.14 of 1993 was registered.

4. According to Mr. Sardar Muhammad Ishaque, learned counsel for the appellant, evidence of none of the three witnesses could be relied upon to sustain the appellant's conviction under Article 4 of the Prohibition Order, 1979. First, he dealt with the evidence of P.W.1 Ali Bakhsh. He is a private person, but, according to learned counsel for the appellant, he is a stock witness of Inspector Azizullah Baloch and in more than 20 cases he had appeared as a Mashir. It was pointed out by the learned counsel for the appellant that in the Mashirnama of recovery under his signature Ali Bakhsh's address was given as Katcha house in Lyari Quarter, Karachi, whereas A 1i Bakhsh in his evidence had stated his residence to be in Old Golimar. In his cross-examination, Ali Bakhsh admitted that he did not give the correct address in the Mashirnama and the reason given was that "I was afraid of the accused". He admitted that his address in his identity card was House No.123, Ghulam Muhammad Village, Manghopir Road, Old Golimar, Karachi, which was different from the address given in the Mashirnama. He also admitted that his house was situated in District West Karachi, whereas the incident took place in District South, Karachi. In cross-examination, he further admitted that he had been prosecution witness in other cases also, but he did not remember the exact number of the cases in which he was witness for the prosecution. He could not say if he was prosecution witness in 20 cases. He further admitted in his cross-examination that he was prosecution witness in 9 cases, details whereof were given. He further stated that he did not know P.W. Salim, although Salim in his evidence stated that Ali Bakhsh used to come to the police station where Salim was an Excise Constable.

5. For the proposition that being a stock-witness of the police and having appeared in more than 20 cases for the prosecution, the evidence of Ali Bakhsh could not be relied upon, Mr. Sardar Muhammad Ishaque relied upon 1994 S C M R 1612; P L D `1964 SC 167;1974 S C M R 271; 1976 P Cr. L J 768; 1975 P Cr. L J 675 and A I R 1971 SC

356. The two Single Bench decisions from Lahore reported in 1975 P Cr. L J 675 and 1975 P Cr. L J 768 and A I R 1971 SC 356 directly support the contention of the learned counsel, but the other judgments which were relied upon laid down the principle that evidence of the stock-witnesses should not be accepted without reservation.

6. In this case evidence of Ali Bakhsh should not have been relied upon. Admittedly, he was a stock-witness having appeared in more than 20 cases and Inspector; Azizullah Baloch preferred to take Ali Bakhsh as witness on behalf of the prosecution. Then the presence of Ali Bakhsh at the place of the occurrence in Lyari is also not natural being resident of a place which was 7 to 8 miles away and giving false address in the Mashirnama also makes his testimony doubtful. There are other contradictions between his evidence and the evidence given by the other witnesses. Inspector Azizullah Baloch admitted in his cross-examination that in the Mashirnama of recovery the name of Ali Bakhsh was added later on at the police station. In these circumstances, no credence could be given to the evidence of stock-witness Ali Bakhsh. The other two witnesses are official witnesses, namely, Excise Constable, Salim, and Inspector, Azizullah Baloch. In this case, spy information had been received at 6-00 p.m. on 6-9-1993 by Inspector Azizullah Baloch and if that was so he should have made efforts to arrange for two respectable witnesses from the locality. Admittedly, no efforts were made by Inspector Azizullah Baloch. Instead, he caught hold of stock-witness Ali Bakhsh resident of a place 7/8 miles away from the place of the incident and police officials only.

7. In a recent judgment of the Supreme Court in the case of Mirza Shah v. The State 1992 S C M R 1475, while considering the applicability of section 103, Cr.P.C. to searches made during investigation by a Police Officer, the Supreme Court observed that the Court will not insist on strict compliance with the provisions of section 103, Cr.P.6., but will examine other evidence produced by the prosecution to prove recovery with care and caution, but the prosecution nevertheless has to explain the non-compliance with the provisions of section 103, Cr.P.C. It was observed that section 103(1). Cr.P.C., requires the officers making a search to associate two or more respectable inhabitants of the locality, where search is to be made, who may attend and witness the search and the object is to ensure proper and honest search by the police and to avoid harassment, concoction and manipulation at this stage. The Supreme Court further observed that section 103, Cr.P.C. is applicable to the searches made by Police Officer during investigation, but its applicability will depend upon the facts and circumstances of each case and if the circumstances are such that it is not possible to comply with it, the Court will not insist on its IC strict compliance, but will examine other evidence produced by the. Prosecution to prove recovery with care and caution,

8. Mr. Hafiz S.A. Rahman, learned counsel for the State, was very frank in his submission that principles contained in section 103, Cr.P.C. should be complied with but in case it is not possible to comply with such provisions, an explanation should be available on record on behalf of the prosecution which, according to the learned counsel, is available in the present case. Hafiz S.A. Rahman, referred to the evidence of Inspector, Azizullah Baloch, in which he has stated as follows:-- "The accused is a resourceful person and has connections with the highups... because he is a dangerous person, therefore, no body is prepared to depose against him. No body was prepared to become witness out of the population of about 25,000 living in the said locality." In my view, the aforesaid general statements made by the inspector do not discharge the burden placed upon the Police. Officer for not complying with the provisions of section 103, Cr.P.C. Admittedly, no report was produced to show D that the appellant was a dangerous person. Nothing was mentioned about who were the highups with whom he had connections. A general statement that the accused is a dangerous person and, therefore, no body is prepared to depose against him can be made against any accused in any case. Some specific material or evidence should be brought on record so that it may form the E basis of the explanation required for non-compliance with the provisions of section 103, Cr.P.C.

9. In the circumstance, the evidence of the two police witnesses cannot form the basis of conviction. Attention was also drawn by learned counsel for F the appellant to the documents on record to show the enmity between the appellant and Inspector, Azizullah Baloch.

10. In my view, in the circumstances, the conviction of the appellant on the evidence of the aforesaid three witnesses was not legally maintainable.

11. As a result, this appeal is allowed, and the judgment and sentence, dated 28-6-1994 of the learned Sessions Judge, Karachi South, passed in Sessions Case No.44 of 1993, are set aside and it is directed that the appellant G Muhammad Yousuf alias Bengali, son of Noor Muhammad, be released forthwith, if not required in any other case. N.H.Q./907/FSC Appeal allowed.