P L D 1930 Baghdad﷓ul﷓Jadid 24 (PLP)

Criminal Procedure Code (V of 1898)

S, 103‑Locality does not mean same quarter of town. A I R 1934 all. 374; A I R 1932 All. 185; A I R 1934 Pat. 159; 12 Cr. L J 479; 6 Luck. 472; 9 Luck. 355, referred to. ORDER.‑--On the night between 8th and 9th October. 1948, a theft ‑took place at the house of Mian Zahir‑ul‑Haq resident of village Dinpur Sharif. The report was sent on the morning of 9th of October, 1948 but it was actually registered on 10th of October 1548. Some of the stolen property was recovered from Sultan and some from Tai Muhammad. Both the accused were convicted under‑section 457 Pakistan Penal Code by Mr. Nawaz Ali, Magis trate, 1st Class, Kharipur and each was sentenced to two years rigo rous imprisonment and Rs. 100 fine and in default of payment of fine to one month's further rigorous imprisonment. Both the convicts appealed to the learned Sessions Judge, Rahimyar Khan Sultan was acquitted on the ground that the property recovered from him was insignificant in its nature and consequently the case against him was suspicious. As regards Taj Muhammad his conviction was altered from section 457 to 411 Pakistan Penal Code and the sentence was reduced to 1 years rigorous imprisonment. The sentence of fine was maintained. This is a revision petition on behalf of Taj Muhammad. The learned counsel contended that the provisions of section 1103 of Criminal Procedure Code have been violated in conducting the search of the house of the petitioner h as much as the search was not carried out in the presence of respectable inhabitants of the locality but rather in the presence of the inhabitants of another place. In support of his arguments tie also sought help from 1934 All. p. 374 and 1912 All. p.

185. Now Clause 1, section 103, Criminal Procedure Code reads "Before making a search under this Chapter the officer or other person about to make it shall call upon the two or mere respectable inhabi tants 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". The gist of this section is that there must be respectable search witnesses. The stress on the word " respectable " and not on the the word " locality." Where the respectability of the witnesses is not challenged the failure of the inability of the police officer to secure search witnesses from the locality is no more than an irregu larity. See 10 Pat. p. 821, A I P. 1934 p.

159. Now bearing the interpretation of the aforesaid para. in mind it is to be seen. whether 1934 All. p. 374 lays down a view contrary to that which is quoted above. It was no doubt laid down there that "where respectable persons can be found in the neighbourhood, and the police officer making a search takes with him persons whose res pectability is questionable or who come from a distant locality, inference is that be was prompted by a desire to have such wit nesses as would be easily persuaded to support any story which he might put forward". The facts which led to those observations in that case point out that the witnesses were unreliable and having come from other locality were ignorant of the important fact that is whether the room from which the objectionable drug was recover ed belonged to the accused or to his other brother. In 12 Cr. L. J. 479 it was held that " The word ' locality ' does not mean the same quarter of the town as the place searched. The word is a compre hensive one and may well include villages within three or four miles of the village where the search is to be conducted, The police may experience difficulty in finding the respectable persons in the immediate vicinity. See 6 Luck. 472, 9 Luck. 355". In this case it has not been suggested by the learned counsel for the petitioner that the witnesses were not of the villages within three or four miles of the village where the search was to be conducted. He had rather not challenged the respectability of the witnesses and had admitted them as respectable. I am, therefore, not inclined to hold in the case that the provisions of Clause 1 of section 103 Criminal Procedure Code were violated. 1932 All. 185 lays down a general proposition that it is of the utmost importance that search should be conducted in a highly regular manner, so that the defence might have no opportunity to question the boys fides of the prosecution. The proposition laid down in the case indeed is a salutary one which should be kept in view by every officer conduct ing the search. From the argument of the learned counsel and the facts stated in support thereof, it does not appeal at all that the search in the present case was conducted in an irregular manner. The property was recovered from the courtyard of the house of the accused. The property recovered was pot claimed, by him. It was an identifiable property and was identified by the complainant and was entered into the list of the stolen property. From these facts there retrains no hesitation to hold that the property recovered was the stolen property, There remains no doubt in my mind, therefore, to hold that the accused was rightly convicted. The sentence is not‑severe. , His petition is therefore dismissed. K. M.A. Revision dismissed.