1990 P Cr (PLP)

Appellant Muhammad Ameen was tried for the offence under sections 489‑B and 489‑C, P.P.C. by learned Sessions Judge (South), Karachi, who vide judgment, dated 18‑9‑1988, convicted him for the offence under section 489‑B, P.P.C. and sentenced him to suffer R.I. for ten years and to pay a fine of Rs.5,000 or in default to suffer R.I. for six months. The appellant was also convicted for the offence under section 489‑C, P.P.C. and sentenced to suffer R.I. for seven years. Both the sentences were ordered to run concurrently. The appellant has challenged his conviction and sentence through this appeal filed under section 410, CrY.C.

2. On 29‑9‑1986, Aqueel Ahmed Oureshi, Sub‑Inspector F.I.A., Crime Circle I, Karachi, received a secret information that the present appellant was engaged in selling counterfeit prize bonds of Rs.1,000 denomination. On 30‑9‑1986, he arranged a raid party and deputed Farrukh Saeed Rizvi, Sub Inspector F.IA. (under suspension) as a dacoy witness to Shop No.7, Sind Market Karachi, where the appellant was found sitting. The. deal was settled and a prize bond of Rs.1,000 was purchased by the decoy witness against the payment of Rs.400. The tainted money which had passed on to appellant was seized from his possession. The prize bond was also recovered in presence of Mashirs Muhammad Aslam and Akbar Nawaz Khan. On the search of the shop many other prize bonds were secured from the drawer of the table. On return to office Aqueel Ahmed Qureshi Sub‑Inspector lodged F.I.R. against the appellant. During the course of investigation the prize bonds were sent to Pakistan Security Printing. Corporation, Karachi for examination. The Chief Chemist examined the prize bonds and found them counterfeit. After usual investigation the appellant was sent up to stand trial. At the conclusion of the trial the learned Sessions Judge (South) Karachi, convicted the appellant vide judgment, dated 16‑11‑1987 and sentenced him accordingly. The appellant filed Criminal Appeal No. 229 of 1987, against this judgment, which was allowed by this Court on 17‑4‑1988, and the case was remanded to trial Court with direction to recall Muhammad Aslam Mashir for further cross‑examination. The compliance was made and the appellant was again convicted and sentenced accordingly. It is in these circumstances that the present appeal has been filed.

3. I have heard Mr. Munawwar Malik, learned counsel for appellant and Mr. A.K. Jatoi, learned counsel for State. The latter while supporting the conviction has conceded that Muhammad Aslam (P.W.1), who has acted as Mashir is a stock witness of F.I.A.

4. Section 103, Cr.P.C. was enacted to ensure fair dealing on the part of the officer making search. It applies when the search is to be made of a place and is not attracted when the search of a person is taken. In the present case besides the personal search of the appellant, the shop where he was found sitting was also searched and consequently the provisions of section 103, Cr.P.C. are very much attracted.

5. The witnesses of search should be respectable and of the locality and the occupant of the premises should also be there at the time of search, are valuable safeguards. 'The police have always their pet witnesses or some can be easily hired or influenced, and, therefore, it is that `respectable' and `of the locality' have been 13 considered as necessary qualifications of the search witnesses. The Court should always be vigilant to know as to why the witness has trudged all the way from his place to the place of search and why the police could not have a search witness. It is an open secret that the police have always certain henchmen who are prepared to go to any extent with them. The cases reported as Sardar Ali v. The State P L D 1964 Lah. 386, Jahana v. The State 1978 P Cr. L J 157, and The State v. Abba Ali Shah alas Abba Umar and another P L D 1988 Kar. 409 arc relevant ire this behalf. In the first cited authority it was observed that the Courts should insist on strict compliance of the requirement of section 103, Cr.P.C. It would be beneficial to reproduce the relevant observations which are as follows:‑‑ "The provision which requires `two or more respectable inhabitants of the locality' to witness search, is designed to guard against possible chicanery and ensure fair dealing, and as such the Court should jealously guard against any attempt to circumvent or render this safeguard as illusory. This provision, though not mandatory in the sense that its non‑observance renders the search illegal, yet, as already stated, since it is important safeguard against unfair dealing, the Courts must insist on strict compliance, and any departure from the rule should be strongly deprecated. I am aware of the situation where it will not be possible for the Excise or Police officials to insist on the services of the respectable inhabitants of the locality, but in such like cases the burden of proof would lie on the prosecution to prove that there were compelling or substantial reasons which necessitated the departure from the rule. Let it be clearly understood by the Police and Excise officials, who are required to conduct searches under section 103, that they run the grave risk of the witnesses of search being disbelieved in case where it is suspected that there has been a wilful default in not complying with the statutory requirements of section

103. The Courts should, therefore, insist on strict compliance of the requirements of section 103, and in cases the prosecution has not satisfactorily explained the reason for non -observance of the requirements of the section, the Courts should look with deep suspicion the testimony of the search witnesses. In cases where the Excise or Police officials making search take with them persons whose respectability is questionable or who come from distant locality, the inference may be drawn that they were prompted by a desire to have such witnesses as would be easily persuaded to support any story which might be put forward."

6. Any person is entitled to claim respectability. Respectability does not connote any particular status of wealth or any thing of that kind. A person who denied his association with F.I.A. at the initial stage, admitted to have appeared as Mashir in nine such cases is certainly a liar and disreputable person. The further cross‑examination of Muhammad Aslam Mashir (P.W.1) makes his evidence worthy of no credence. The Mashir admitted as follows: ‑‑ "It is a fact that I was witness in Crime No. 60 of 1986 of F.I.A. It is a fact that I am also witness in Crime No.56 of 1988 of F.I.A. Crime Circle. It is a fact that 1 was also witness in Crime No.59 of 1986 of F.1.A. Crime Circle. It is a fact that I am witness of Crime No. 54 of 1986 of F.I.A. Crime Circle. It is a fact that I was witness in Crime No. 63 of 1986 of F.I.A. Crime Circle. It is a fact that I was also witness of Crime No.55 of 1986. It is a fact that I was also witness in Crime No.57 of 1986. It is a fact that I was also witness in Crime No. 61 of 1986. It is a fact that I am also witness in Crime No.64 of 1986. It is a fact that in above crimes accused were different." It will not be out of place to mention that Muhammad Aslam (P.W.1) had denied his association with F.I.A. Staff when he was examined earlier in this case He is, therefore, a dishonest and a crooked witness and should have been prosecuted for perjury.

7. Farrukh Saeed Rizvi (P.W.2) who acted as decoy witness is again not a reliable witness. Admittedly he was under suspension when this trap was laid. He was also facing departmental proceedings which terminated into his dismissal g from service. According to learned counsel for appellant, this witness was facing a corruption charge which was subsequently proved against him and his evidence should not have formed a basis to convict the appellant on such a serious charge. The evidence of this witness is again at variance with the version of Aqueel Ahmed Oureshi, S.I. (P.W.3) about his visit to the shop of appellant one day prior to the actual raid. The manner in which Motiram, the owner of the shop was dealt with by F.I.A. again lends support to the allegation of appellant that he has fallen F victim in this case. At any rate the case against the appellant was not free from doubt and he was entitled to acquittal on this score alone. The suspicion however strong it may be cannot be taken as substitute of legal evidence. I may usefully borrow the words of caution of Mr. Justice Darling in the trial of Steinic Morrison when addressing the jury he said: ‑‑ All that about the revolver, and so on, is very suspicious, gentlemen, but you know you must not convict a man on one suspicion; you must not convict him on a thousand suspicions; you must not add a thousand suspicious circumstances together and say, `that is proof. No you must find somewhere a solid anchorage upon which you can say, `I am secure of this basis.

8. As a result of foregoing discussion, I accept the appeal, set aside the conviction and sentence of the appellant, and acquit him. The appellant who is in custody be released forthwith, if not required in any other case. N.H.Q:/M‑894/K Appeal accepted.