P L D 1964 (W (PLP)

Date of hearing : 19th March 1964. This revision petition raises an important question involving the interpretation of section 103, subsection (1), Cr. P. C. which may be formulated thus :‑ "Whether the provisions of section 103, subsection (1), which requires a search under Chapter VII must be witnessed by `two or more respectable inhabitants of the locality in which the place to be searched is situate to attend', are mandatory."

2. The admitted facts, giving rise to this revision petition are that Excise Sub‑Inspector Abdul Karim (P. W. 1) along with Sub‑Inspector Muhammad Yusaf (P. W. 5), Muhammad Shafi (P. W. 6) and Lal Din (P W. 3) and a few others in pursuance of an information laid with the Excise Sub‑Inspector, raided the house of Sardar Ali petitioner in Chak No. 77‑JB, and allegedly found him working a still. The still was allegedly dismantled and taken into possession. A sample was also allegedly taken and sent to the Chemical Examiner, and the report confirmed that it contained illicit liquor. The petitioner was on 25th July 1961, sentenced to six months' R. I. under section 61 of the Punjab Excise Act, 1914, and his conviction and sentence were affirmed by Mr S. M. Shafqat, the learned Sessions Judge of Lyallpur. The petitioner has come up on revision petition against his conviction and sentence.

3. The learned counsel for the petitioner argued that the provisions of section 103, subsection (1) were mandatory, and designed to guard against possible and unfair dealings, and that in the instant case there were not only suspicions, but very solid ground to suggest that the whole search was illegal, in that the two search witnesses, namely, Lal Din (P. W. 3) and Muhammad Shafi (P. W. 6), respectively, belong to Sheikhupura and Lyallpur City, while the search was conducted in Chak No. 77‑JB, and not only that but they admitted that they have been appearing in excise cases so much so that Lal Din admitted that he appeared 2‑3 times in such like cases.

4. 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 circum vent 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 safe guard 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 indent 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 necessita ted 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, there fore, insist on strict compliance of the requirements of section 103, and in cases the prosecution had 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.

5. Judged in the light of the above observation, the Excise Sub‑Inspector and the Sub‑Inspector in the instant case, when they took the search witnesses with them from Lyallpur, had from the very, beginning no intention whatever of requiring the respectable inhabitants of the locality to witness the search, butt wanted their own men to do so. This, taken along with the admission of Lal Din that he had appeared on two or three occasions as search witness, in my view, wholly destroys the value of his testimony and that of Muhammad Shafi.

6. In the result, the case against the petitioner has not been proved beyond reasonable doubt. I accordingly accept the revision petition, set aside the conviction and sentence of the petitioner, and acquit him. K.B.A. Petition accepted.