P L D 1975 Karachi 92 (PLP)

3. There were four witnesses examined by the prosecution, two being the police officers whom I have mentioned and Khalilur Rahman one of the search witnesses and finally a Sub‑Inspector of Police named Bostan Khan who recorded the first information report and who obviously is merely a formal witness. I have examined the evidence of these witnesses and, on the face of it, I can see no reason to doubt the simple story put forward by the witnesses which appears to me natural and which, I think, is strongly supported by the fact of recovery itself. This is a case in which two Courts below have recorded concurrent findings of fact on what were simple issues supported by uncomplicated evidence. Unless, therefore, there is a question's of law involved or a refusal to reverse these findings of fact would amount to a miscarriage of justice I do not feel inclined to set aside the judgment.

4. Learned counsel for the applicant has, however, raised some questions of law and made other attacks on the evidence which it is necessary carefully to consider. It was argued in the first place that the two witnesses of the search were not witnesses of the locality and that there has been. therefore, a contravention of section 103 of the Criminal Procedure Code. I am in the first place at least doubtful whether section 103 has any application to this case at all and it will be convenient to reproduce the first two subsections of that section in order to examine its applicability: "103.‑(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 ere 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." It will be seen that it is only when a search is being made under "this Chapter" that is Chapter VII that section 103 comes into play at all. Under the preceding section, that is, 102, if a place he is liable to search under this Chapter, any person residing in it is required to allow free ingress to an officer who has a search warrant. In the present case there was no search warrant and there was no question of any place to be searched. It was a case of the apprehension of a person suspected to be carrying unlicensed weapon and, therefore, committing a cognizable offence on account of which he was liable to arrest without warrant.

5. I would, nevertheless, agree that the purpose of section 103, Cr. P. C. being to ensure that the testimony given in Court in regard to the result of a search should not depend upon the police officers alone but also upon the evidence of independent persons and that all possibility of fraud in the case of the search be minimised by the availability of independent persons, the principle underlying this section if not the actual letter of it may well be insisted upon in such a case. Now it is true that the witnesses who have signed the mashirnama are not persons resident in the locality. Regard being had to the purpose of the section I think the emphasis is upon the requirement that the witnesses be respectable rather than that they b inhabitants of the locality. In a case like the present where the incident took place in a very busy and crowded locality there would be hundreds of persons who, although not inhabitants of the locality, are yet present at the time lawfully. I would construe the language of the section as requiring rather that the police officer should obtain the assistance of persons who have not been called for the purpose and from the locality then that he should first ensure that they lived in the locality. The purpose of the section would be entirely violated, I think, if the police officer were to collect with himself prior to the seizure, witnesses for the purposes of witnessing the occurrence even though they be actually inhabitants of the locality. It suffices, I think, that they should be neither persons made available for the purpose nor such as are unable to explain why they were present. It is no body's case that they have been specially accompanying the police officers for the purpose and no question, whatever, has been put to them in cross‑examination to suggest either that they were not respectable or that they had no business to be present at the scene.

6. It is then argued that only one of these witnesses has been examined and that witness has not said anything in regard to the applicant attempting to run away. It was, therefore, said that this part of the story dependent as it is, on the evidence of the police officers alone, is incredible and it was argued that it is insignificant that the other mashir has not been examined. Attractive as the argument is, it does not, I think, bear close examination. As I have said before the area was a crowded one and the witness Khalilur Rahman says that he was going on a scooter on his own business when he was asked by the police to act as a mashir. Ex hypothesi, therefore, this. was at the time when the applicant had already been apprehended and, regard being had to the speed at which a motor‑scooter would travel, Khalilur Rahman would obviously not have seen apprehension. The police could have examined some other witnesses who might have seen the attempted escape but it seems to me that this was hardly so essential a part of the story that they should feel the need to do so, or that the failure to do so yields any inference adverse to the prosecution.

7. The next contention of learned counsel was that the provisions of section 342 of the Criminal Procedure Code have been violated inasmuch as the circumstances of the case have not been put to the accused person. The relevant question and answer is as follows: "Q.‑It is in evidence against you that on 25‑3.68 you were found ix. possession of a loaded revolver No. SYnoch 32 S&DT with three cartridges for which you had no licence. The police recovered the same from you while you were at Chakiwara exit Bus Stop. What have you to say? A.‑It is incorrect.

8. It will be seen that the circumstance that the applicant was found in possession of the revolver and cartridges was put but it is complained that the story of the escape has not been put. Now section 342 of the Criminal Procedure Code permits questions to be put to the accused and even requires them to be put "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him". It is by no means a cross‑examination and if the circumstances which are likely to establish his guilt are put in a manner which enables him to offer a sufficient expla nation then section 342 is complied with. I am wholly unable to regard the allegation that the accused attempted to escape as being such a circumstance.

9. It is finally argued that at any rate if the evidence with regard to the attempted escape of the applicant was not put to him under section 342 of the Cr. P. C. and has not been deposed to by the only mashir examined that part of the evidence must not be taken into account. The argument was developed in an attempt to show that if that part of the evidence is ignored then the entire colour of the case becomes a different one and in that view of the matter the prosecution cannot be said to have established its case at all. I am entirely unable to agree : the argument is closely interlinked with that based upon section 342 of the Cr. P. C. with which I have already dealt. In the view that I have taken I cannot hold that this part of the evidence cannot be looked at or that merely because the mashir does not speak of it must be disbelieved. Of course if the situation was such that the failure of the mashir to depose to this part of the story must be regarded as falsifying it the case might be different. The mashir, however, arrived only when this part of the incident was over and his failure, therefore, to mention it does not falsify it.

10. In these circumstances I dismiss this application. K. B. A. Application dismissed