1996 PCr (PLP)

That whatever is stated above is true and correct to the best of my knowledge and belief." In this affidavit, Khalil Ahmad admits that he personally knew M.Z. Soharwardi and that he had been a witness in several of his official cases. He has further stated is the affidavit that he had been called to the Excise Police Station by M.Z. Soharwardi where his statement was recorded. From the said affidavit it follows that Khalil Ahmad was not a recovery witness and had not seen the recovery and arrest of Bashir Ahmad. In his cross‑examination before the trial Court in the present case he was confronted with the affidavit and copy of his W.I.C. He admitted that he swore that affidavit but stated that he signed that affidavit at the instance of the Advocate who had prepared this affidavit and he knew appellant Amir Ahmad. M.Z. Soharwardi in his cross‑examination was confronted with the affidavit of Khalil Ahmad (Exh.9/C) and he stated that the said affidavit was correct and that copy of N.I.C. of Khalil Ahmad and signatures appearing on the bottom of the said affidavit were that of Khalil Ahmad. Then admittedly Khalil Ahmad was a resident of Landhi and he could not give an explanation as to how he happened to be at the place of incident on 23‑1‑1990, which place is situated opposite Baitul Mukkaram Mosque in Gulshan‑e‑Iqbal several miles away from his house in Landhi. He cannot be described or accepted a natural witness. His presence at the place of incident is doubtful. He has himself stated in his affidavit (Exh.9/C) that he was a stock- witness of M.Z. Soharwardi in his official cases. He has further stated in his cross‑examination at one place, that his statement was recorded during investigation after 11 days of the incident. He has also admitted that he was drug addict in the past.

6. In the above circumstances, no reliance could be placed on the evidence of Khalil Ahmad. It is apparent that he was not a truthful witness and had not witnessed the recovery and had been made a Mashir later on. Learned counsel for the, State had also conceded that, being a purchasable commodity no reliance could be placed on the evidence of Khalil Ahmad.

7. The entire case of the prosecution, therefore, depended on the statement of Ex‑Officer M.Z. Soharwardi, who had conducted the search, had made the complaint on the basis whereof F.I.R. was formally recorded and who later on himself became the Investigating Officer. Learned counsel for the appellants had contended that on such solitary statement of M.Z. Soharwardi, conviction of the appellants could not be based. As a pure proposition of law, conviction of accused can be based on the statement of a solitary witness provided it does not suffer from any contradictions and infirmities and it inspires confidence. Learned counsel for the appellants had raised arguments as regards the evidence of M.Z. Soharwardi. It was first argued that under the law conviction of the appellants could not be based on the solitary evidence of M.Z. Soharwardi and, secondly, it was argued that in any case his evidence did not inspire confidence as the same was infirm in several aspects.

8. In support of his contention that in this case it was unsafe to base the conviction of appellants on the testimony of complainant/Investigation Officer, M.Z. Soharwardi, learned counsel for the appellants has relied upon the following reported judgments:‑‑ (i) Rafaqat Ali v. State 1985 PCr.LJ 2364, (ii) Zarmash v. State 1987 PCr.LJ 45, (iii) Abdul Hamid v. State 1987 PCr.LJ 1707, (iv) Yameen Kumhar v. State PLD 1990 Kar. 275, (v) Aksar Khan v. State 1995 ML.D 1237, (vi) Arshad AN v. State 1995 PCr.LJ 142, (vii) Mahmood Ahmad v. State 1988 PCr.LJ 415, (viii) Badar‑uz‑Zaman v. State PLD 1987 FSC 9, (ix) Abdul Jabbar v. State 1987 PCr.LJ 44, (x) Petitioner v. State 1991 MLD

443. In 1985 PCr.LJ 2364 a D.B. judgment of the Lahore High Court, Mr. Muhammad Munir Khan, J. (as he then was), who was the author of the said judgment, after noting that the, three private witnesses of the recovery had not supported the prosecution regarding the recovery of crime empties from the scene of the crime and the recovery of the pistol from the accused, observed as follows:‑‑ "In the peculiar circumstances of the case it would not be in accordance with the safe administration of justice in criminal cases to place implicit reliance on the uncorroborated testimony of Amir Muhammad Shah, A.S.I., P.W.15 because he being Investigating Officer is naturally interested in the conviction of the appellant." 1987 PCr.LJ 45 (Single Bench Judgment from the Sindh High Court): In this case under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, it was argued on behalf of the accused that in such cases of recovery the accused should not be convicted on the solitary statement of the Investigating Officer, who is also seizing Officer as well as the complainant, but for sustaining conviction in such cases, the evidence of the seizing officer should be supported by the evidence of the Mashirs and/or other evidence. It was held as follows:‑‑ "No doubt, on record, there is the evidence of the seizing Officer Muhammad Moosa Jokhio implicating the appellant, but in the facts of this case, the rule of prudence required that his testimony was corroborated by some other evidence." 1987 PCr.LJ 1707 is a judgment in revisional jurisdiction passed by this Court. It was observed in this case that "the purpose of section 103, Cr.P.C. is to ensure that the testimony given in Court in regard to the result of a search should not depend upon the Police Officer alone but also upon the evidence of independent persons and that all possibility of mischief be minimised by the availability of independent persons and no one should be at the mercy of only Investigating Officer". PLD 1990 Kar. 275 is a D.B. judgment from the Sindh High Court. In this judgment authored by Mr. Saleem Akhtar, J. (as he then was) observed that "where the case of the prosecution depends entirely on recovery of arms and ammunition care should be taken by Court to scrutinise the statement of the witness for recovery with caution and the prosecution should also take care to produce independent witnesses to prove the recovery. The evidence of Investigation Officer itself cannot be sufficient for the purposes of conviction. His solitary statement in such circumstances when he had procured the witnesses to act as Mashir becomes very doubtful and cannot be relied upon". 1995 MLD 1237 is a Single Bench judgment from the Peshawar High Court. The learned Single Judge observed as follows:‑‑ "It was brought to my notice that the said Inspector is himself a complainant and also an investigator. Legally he could not assume this dual function and he should have entrusted the investigation of the case to another reliable and disinterested Police Officer. This fact, by itself, renders the very trial of the case a sheer mockery." 1995 PCr.LJ 142 is a Single Bench judgment of this Court authored by Chief Justice Mr. Justice Nazir Ahmad Bhatti. In this case, the car in which the narcotics were found according to the prosecution, was never produced as case property during the trial. The learned Chief Justice, in the circumstances, was of the view that the non‑production of the car as case property during the trial would lend credit to the defence version that the police had raided the premises of the appellants, and had carried out search thereof. 1988 PCr.LJ 415 is a judgment of a learned Single Judge of the Sindh High Court. In this case, where on the search of a taxi some cartons were recovered which contained one Kg. of heroin, one and a half Kgs. of Charas and five grams of cocaine, the accused, who was passenger in the taxi, was tried and convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. In appeal to the High Court, after noting that the complainant officer had been contradicted by the Mashirs of recovery as well as the taxi driver on the material points of possession of narcotics, it was held that "the evidence of the complainant who was also the Investigating Officer alone cannot be relied upon for sustaining the conviction of the appellant". PLD 1987 FSC 9 is a judgment of this Court. In this case, the charge against the accused was that he was found in possession of heroin on his search while he was standing in a Chowk situated in the heart of Gujrat City. The Court observed that from the record it appears that the Gujrat Police have some grievance against the appellant. The conviction had been based on the solitary evidence of the Investigating Officer. It had been noted that many persons were also present in the Chowk. The appeal against the conviction of the accused was allowed holding that, in the circumstances, solitary evidence of the Investigating Officer cannot be acted upon without corroboration. 1987 PCr.LJ 44 is a Single Bench judgment from the Sindh High Court. It was held in this judgment that "in cases under Article 4 of the Prohibition Order, 1979, the entire case of the prosecution depends on the recovery and as such in a case, where the Mashirs do not support the prosecution, rule of prudence for safe dispension of justice would require that conviction should not be sustained on the solitary statement of the seizing Officer, who is also the complainant as well as the Investigating Officer. 1991 MLD 443 is a judgment of a learned Single Judge of the Lahore High Court. In this case, it was argued on behalf of the accused that the complainant himself had investigated the case against the accused and as such the case of the accused had been prejudiced because the complainant had not conducted the investigation impartially and independently. It was observed byte learned Single Judge of the Lahore high Court that "the complainant should not be the Investigating Officer of the case because the law requires that the investigation must be conducted by an independent person who has no interest in the case and that the duty of the Investigating Officer is to bring all the relevant facts before the Court whether those facts favour the prosecution case or not to enable the Court to come to a just decision". At the end of the judgment in the said case, learned Single Judge gave directions to the S.S.P., Lahore that instructions should be issued to all the Police Officers for guidance that recovery of narcotics should be effected in the presence of public witnesses to obliterate the chances of false implication and the complainant Police Officer should not be the Investigating Officer of the case as it leads to biased investigation and is contrary to the concept of justice.

9. Reference may be made here to the decisions relied upon by Miss Nasreen Zafar, learned counsel for the State, for the proposition that the conviction in the present case could be sustained on the solitary evidence of complainant/Investigating Officer M.Z. Soharwardi. Learned counsel for the State had argued that no defence was advanced on behalf of the appellants that there was any enmity between the appellants and the Investigating Officer. Reliance was placed on the judgment of the learned Single Judge of the Lahore High Court in the case of Muhammad Tufail v. State 1994 PCr.LJ 363 where it was observed that the evidence of the Police Officer is to be treated as that of an ordinary citizen and cannot be brushed aside merely because the witnesses belong to police force. Learned counsel for the State also placed reliance in the case of Mirza Shah v. State 1992 SCMR 1475 for the proposition that an Investigating Officer is a competent witness. Reference was also made to the case of Muhammad Ashraf Khan Tureen v. State 1995 PCr.LJ 313 for the proposition that any defect, irregularity or even illegality in the investigation does not vitiate the trial unless it is shown to have prejudiced the accused in any manner. Reliance was also placed in the case of Chutta v. State 1995 PCr.LJ

755. This judgment is of D.B. of the Balochistan High Court where it was held that the statement of Police Officer can be considered if the same remains unshaken during the cross‑examination.

10. The law does not place any restriction or bar to the effect that the Police Officer or Investigating Officer cannot be a competent witness in a criminal trial. The question that has arisen from time to time before the superior Courts in our country is whether a different, yardstick is to be applied for the scrutiny and examination of a police witness than that of a private witness and in what situations or circumstances the evidence of a police witness requires corroboration from independent evidence to sustain a conviction. In this context reference may be made to a decision of the Supreme Court in the case of Mirza Shah v. State 1992 SCMR 1475, relied upon by learned counsel for the State. In para. 11 of the said judgment it was observed as follows:‑‑ "It has been contended that evidence of Police Officer should be accepted like any other prosecution witness. A Police Officer produced as a witness for the prosecution can be relied upon like other prosecution witnesses but as he is an Investigating Officer or attached with the investigation staff, the Courts as a matter of prudence and safe administration of justice, scrutinize the evidence of such witnesses with care and caution. Where circumstances permit, the evidence may be accepted to prove arrest or recovery but in order to make it credible and authentic the prosecution must explain the circumstances for non‑compliance with the provisions of section

103. Section 103 read with section 165, Cr.P.C. lays down the mode for recovery and search but as in certain circumstances a deviation may be made, it would be proper to explain the reasons for such deviation. So far the acceptability of the evidence of the Police Officer is concerned, the general principle is that if there is no animus or mala fides, the investigation has been straight and honest and no substantial defect or infirmity has been pointed out in the evidence or brought through cross‑examination, the evidence of such a witness though a policeman, may be accepted. However, in cases of recovery, this principle is accepted subject to furnishing an explanation by the prosecution for non‑compliance with section. 103." In para.15 of the said judgment it was observed by the Supreme Court as follows:‑‑ "From the aforesaid judgments, it seems clear that being a policeman or an Investigating Officer, is no bar to the acceptance of his testimony. His evidence should be accepted like other prosecution witnesses and if it fulfils all such conditions which are necessary for accepting and believing a witness, it cannot be discarded. But where such witness proves recovery, normal limitations and restrictions have to be observed." In the said judgment after referring section 103 and section 165 of the Code of Criminal Procedure it was observed as follows:‑‑ "Subsection (4) specifically makes sections 102 and 103 of Cr.P.C. applicable to search made by Police Officer during investigation so far they can be applied in the facts and circumstances of the case. Therefore, the applicability of section 103, Cr.P.C. in cases of search by a Police Officer during investigation has been made by statute. But its applicability depends upon the varying circumstances of the case. It would be rather going too far to say that the provisions of section 103 should be complied with in all circumstances irrespective of the fact whether it is practically possible to apply it. But it does not mean that a Police Officer while making search should completely ignore the provisions of section 103, Cr.P.C. if the facts and circumstances show that it could be applied."

11. It would follow that, in law, a Police Officer or Investigating Officer is a competent witness but when evidence is being given by a Police Officer 8 relating to recovery, limits contained in section 103 read with section 165(4), Cr.P.C. remain applicable. For the search of a house or an enclosed place, provisions of section 103, Cr.P.C. are mandatory and must be complied with. For searches made during investigation, however, the provisions of section 103, Cr.P.C. are to be complied with as far as it is possible in view of the provisions contained in section 165(4), Cr.P.C. If it is not possible to fulfil the conditions contained in section 103, Cr.P.C., the Police Officer should explain the reasons for such non‑compliance. If reasons are not given for non‑compliance evidence of Police Officer regarding recovery during investigation will be suspect and, without independent corroboration, it would not be safe to rely upon such evidence.

12. Another principle that has now been settled regarding evidence of police witnesses is that, where the only evidence available in the case is that of C police witnesses, their evidence must be subjected to close scrutiny and examination. From this principle, it follows that in cases where the only evidence that is available is that of police witnesses, a different yardstick is used for scrutiny of such evidence i.e. a strict and close scrutiny. As regards the evidence of the Investigating Officer, it may be observed that he is not merely a formal witness as several aspects of the case which prosecution witnesses try to conceal from the Court could be brought out from his statement and omission to examine the Investigating officer puts the accused to serious handicap in defending himself from the charge against him. (1990 PCr.LJ 577). The purpose of investigation in a criminal case by an Investigating Officer is to arrive at the prima facie truth or falsity of the case against the accused and from this it would follow that normally an Investigating Officer should be an independent person from that of the complainant and he should not be a witness to the incident. If a policeman is a complainant or a witness to the incident, a doubt maybe expressed about his impartiality if he also becomes E the Investigating Officer. As law does not place any restriction on a complainant becoming an Investigating Officer, yet as the law requires an unbiased investigation, evidence of an Investigating Officer about the incident required corroboration from independent evidence for safe administration of justice.

13. In the present case, evidence of Mashir Khalil Ahmad has been found worthy of credence. It was liable to be ignored. As observed, in the present case, the prosecution depends on the solitary statement of M.Z. Soharwardi, who was the seizing Officer, the complainant and also the Investigating Officer. In view of the law enunciated hereinabove, for safe administration of justice for conviction of the appellants, the trial Court should have looked for independent corroboration of the testimony of complainant/Investigating Officer, M.Z. Soharwardi, which is lacking in this case. Apart from evidence of M.Z. Soharwardi, there is no other piece of evidence which could establish the case of the prosecution, against the appellants.

14. Additionally, it has been found on close scrutiny of the record that the evidence of complainant/Investigating Officer, M.Z. Soharwardi suffers from infirmities. It has rightly been pointed out by learned counsel for the appellants that M.Z. Soharwardi had procured Khalil Ahmad as a recovery Mashir and it has been established that Khalil Ahmad was not a witness to the recovery. By procuring the stock‑witness who had not witnessed the recovery and presenting him as a recovery Mashir during the trial, complainant/Investigating Officer has himself tainted his evidence. Then the car involved in the carriage of narcotics has not been produced and no explanation has been given of such non‑production. It has also found that there is discrepancy in the weights of the samples given in the evidence of M.Z. Soharwardi and the Chemical Examiner's report. In his evidence M.Z. Soharwardi stated that he had taken the samples from each of the 4 bags. About the taking of the samples and their weights he stated in his cross‑examination as follows:‑‑ "The samples of heroin 10 grams taken from the main property were kept in separate small polythene bags. I weighed 10 grams heroin on the scale, the said 10 grams heroin was weighed with its container. It is correct to say that the 10 grams together with the container/wrappers weighed about totalling 40 grams powder." According to the Chemical Examiner's report, the net weight of the powder without wrappers was 40.6 grams whereas the gross weight of 4 bags including the wrappers came to 45.6 grams.

15. In this case there were only two prosecution witnesses, namely, P.W.1 Khalil Ahmad (Exh.9) a recovery. Mashir and P.W.2, M.Z. Soharwardi (Exh.10) the Seizing Officer/the complainant/the Investigating Officer. Evidence of Khalil Ahmad has been found to be suspect and should have been ignored. As P.W.2 M.Z. Soharwardi was not only the complainant as well as the seizing Officer but had also become the Investigating Officer, the principles of Criminal Jurisprudence and safe administration of justice required that the evidence of recovery given by M.Z. Soharwardi was corroborated by independent evidence which is lacking in this case; and infirmities have also been found in the evidence of M.Z. Soharwardi. In the circumstances, conviction of the appellants could not have been based on the solitary statement of M.Z. Soharwardi. The conviction of the appellants is liable to be set aside.

16. As a result, Criminal Appeal No.21‑K of 1995 is allowed and the impugned judgment, dated 19‑2‑1995 passed by the learned IIIrd Additional Sessions Judge, Karachi (East) is set aside and appellants Bashir Ahmad son of Amir Ahmad and Amir Ahmad son of Ali Muhammad are ordered to be released forthwith if not required in any other case. On conclusion of the arguments on 23‑10‑1995, this appeal was allowed by a short order. Detailed reasons for the short order are given in the present judgment. N.H.Q./1034/FSC Appeal allowed.