1989 P Cr (PLP)

One revolver with bullets. (6) Shah Muhammad alias Sojhro One carbine pistol .12 bore with cartridges. (7) Qamaruddin One carbine pistol .12 bore with cartridges. (8) Khadim Hussain bullets and cartridges.

3. Such Mashirnama was prepared on the spot in presence of Mashirs Muhammad Yousuf and Muhammad Saleem. On the same day at 5.05 a.m. the report against the above persons was lodged at North Nazimabad Police Station under section 402, P.P.C. (Crime No. 289. of 1987). Since all the above accused had no licence for the arms and ammunitions, which they possessed, separate cases under section 13‑D of the Arms Ordinance, 1965, were registered against them. After usual investigations all the cases were challaned.

4. At the conclusion of the trial the accused were not found guilty for the offence under section 402, P.P.C. Accused Pir Bux, Shah Muhammad Qamaruddin and Khadim Hussain were also not found guilty for the offence under section 13‑D of the Arms Ordinance, 1965. The learned Additional Sessions Judge, however, found accused Zafar Ali, Kader Bux, Hazoor Bux and Saleem guilty for the offence under section 13‑D of the Arms Ordinance, 1965, and sentenced each of them as follows:‑

(1) Saleem R.I. (Appeal No. 195 of 1988) for 12 months. (2) Kader Bux (Appeal No. 193 of 1988) R.I. for three years. (3) Zafar Ali???? (Appeal No. 192 of 1988) R.I. for three years. (4) Hazoor Bux R.I. for three years.

5. Hazoor Bux convict did not challenge the judgment dated 1‑12‑1988, while rest of the convicts filed separate appeals shown against their names.

6. The case of the prosecution solely rests upon the testimony of Saleem (P.W.1) and Muhammad Yaseen S.H.O. (P.W.2). The co‑Mashir is given up (vide Exh.3). Muhammad Yaseen S.H.O. (P.W.2) has testified the circumstances leading to this incident. Saleem (P.W.1), who has acted as Mashir of recoveries has, however, not supported the case of the prosecution. I cannot do better than to quote his cross‑examination in extenso:‑

"I have appeared before this Court 2/3 times previously for my evidence inside jail premises. It is correct that I was taken away twice from outside the jail by Inspector Haji Yasin to pressurise me to give evidence against the accused persons. I was once detained in police custody for one day and thereafter, I was released. He is still pressurising me to depose against the accused and in case of my failure to do so he has threatened me to falsely implicate me in several cases. He has also come today outside the jail. I had earlier given my statement implicating the accused in that case under the pressure of the police. I have today given the true facts out of fear of God. It is correct that the accused were neither arrested by the police in my presence nor any weapons were secured from their custody in my presence. I run a private taxi which belongs to me. S.I.P. Roshan at P.S. North Nazimabad, most of the time takes me alongwith taxi in connection with cases investigated by him. I have rendered to him my services since last two years. It is correct that I was taken up as a trusted person of the police and under same trust and Confidence was made Mashir by police in this case and other cases. It is correct that police had called me at the P.S. where my signature was obtained on Exh.6/A. I saw the present accused for the first time in this Court when I came here for my evidence. I had identified the accused on the previous hearing under the fear and dictates of police."

7. Section 103, Cr.P.C., which speaks of search of a house in presence of two or more respectable persons of the locality, was enacted to ensure that searches are conducted fair and to obtain as reliable evidence as possible of the search with a view to exclude the possibility of malpractice of any kind. When the, law requires that the search should be made in presence of respectable persons of the locality, it should be insisted upon and the conviction should not ordinarily be based on the uncorroborated testimony of a Police Officer. The absence of corroboration may be due to two factors, the failure of the police to take the Mashirs in terms of section 103, Cr.P.C. or the fact that the Mashirs do not support the prosecution. Whatever be the reason, if there is no corroboration, then ordinarily conviction should not rest on the uncorrbborated testimony of the Police Officer, conducting the searches in such cases.

8. Saleem (P.W.1) is admittedly a taxi driver connected closely with Roshan S.I.P. of North Nazimabad P.S. Any person is entitled to claim respectability, but a respectable person is one who would by impartial. Tire status of a person, though an important factor, is not by any means the only determining factor to claim respectability, or otherwise. The Mashir at his own showing is under the control of North Nazimabad police. It will, therefore, be extremely unsafe and too risky to convict an accused mainly on the evidence of such witness who is already disbelieved by the learned Additional Sessions Judge against Pir Bux, Shah Muhammad, Qamaruddin and Khadim Hussain.

9. While considering the evidence of a witness, the Judge should examine the whole evidence, and not what he has stated in examination‑in‑chief alone. In criminal cases a charge has got to be established by the prosecution beyond reasonable doubt, and if the evidence produced by the prosecution is shaky and unreliable, the accused will be entitled to an acquittal, irrespective of the worth of his own case. As Young, J. pointed out in Asmatullah v. Emperor A I R 1933 All. 896 `such procedure is wrong, a waste of valuable time, and a danger to the public. It must frequently result in innocent persons being convicted. A conviction in such a case must largely be the result of guess work. The plain duty of the Court when it finds the prosecution case false and manufactured in material and vital particulars and supported by perjured evidence is to throw the whole case out without delay'.

10. It is unnecessary to state how important and how valuable for the liberty of a subject, the provisions of section 103, Cr.P.C. are, and the law provides that the place of a person cannot be searched m the absence of respectable persons of the locality. A great importance is attached to such witnesses, and in order that the Court should attach such importance to such witnesses, it is essential that they should be independent, unbiased and without being in any way under the control of the police.

11. In view of the above discussion, it would be wholly unsafe to depend upon the solitary testimony of Muhammad Yaseen S.H.O. (P.W.2),which stands belied by Saleem (P.W.1), to base conviction against the appellant. The judgment by which the appellant was convicted and sentenced is set aside and the appeal is allowed. The appellant, who is in custody be released forthwith, if not required in any other case. SA./S‑344/K?????????????????????????????????????????????????????????????????????????? ?????????? Appeal allowed.