P L D 1996 Supreme Court 67 (PLP)

SAJJAD ALI SHAH, C J.‑‑‑ This appeal with leave of the Court is directed against judgment dated 6‑11‑1993 of the Lahore High Court, whereby appeal of the appellant is dismissed and his conviction for offence under section 13/20 of the Arms Ordinance, 1965 and sentence of R.I. for‑ five years and fine of Rs.20,000 or in default R.I. for six months is upheld.

2. Briefly stated the relevant facts in the background are that appellant was in custody of Police Station Civil Lines, in connection with another case and during interrogation he disclosed that he was in possession of a klashnikov without licence and led the Police party to his shop on 23‑6‑1991 at 2‑25 a.m. and in the result Klashnikov, magazine and 10 bullets were secured for which there was no licence and such F.I.R. was filed.

3. In the Trial Court prosecution examined 4 witnesses from whom P.W.1 is Muhammad Hanif Naseem, Fire‑arm Expert, who reported that weapon was automatic rifle of 7.62 m.m. bore commonly known as Klashaikov. P.W.2 is Muhammad Ashraf A.S.I., who drafted formal F.I.R. on the basis of report sent by Rana Tahir Mahmood, Inspector C.I.A. P.W.3 is Rehmat Ullah, A.S.I. and P.W.4 is Tahir Mahmood Inspector, who deposed that the appellant while in custody in connection with investigation of some other case disclosed and led to his shop an the night between 23/24‑6‑1991 at about 1‑45 a.m., which was opened by the key produced by the appellant and police secured‑ one Klashnikov, magazine containing 10 bullets from' behind the iron safe. Appellant had no licence hence the case filed against him.

4. In his statement under section 342, Cr.P.C. appellant proclaimed false implication due to enmity with police. Appellant also examined two defence witnesses D.W.1 Muhammad Amin and D.W.2 Rehinat Ullah in support of his plea of false implication. Trial Court after evaluation of evidence came to the conclusion that there were no circumstances in the evidence which could establish that recovery witnesses has any animosity against the appellant or his family members at the time of registration of the case, hence, recovery was fully established by evidence of P.W.3 and P.W.4, who are police officers without motivation to falsely implicate the appellant.

5. High Court has dismissed' the appeal and observed that both the recovery witnesses, who are police ‑officers were put to the test of lengthy cross examination but nothing could be brought on the record to suggest that they had enmity against the appellant. High Court also observed that the contention that nobody from the locality was associated with the police was without substance because at that hour of the night there could not be anyone available. With regard to the defence witnesses High Court observed as under:‑‑ "We have noticed that even if complete reliance is placed on the defence witnesses, yet it does not establish the innocence of the appellant nor creates doubt in the prosecution case."

6. Two contentions were raised before us on behalf of the appellant, firstly that appellant had alleged enmity with police and secondly that defence witnesses supported his plea of false implication and has stated that shop was not opened and recovery was not made on the night as alleged by the prosecution. In the trial Court in his statement under section 342, Cr.P.C. appellant stated as under:‑‑‑ "P.Ws. are police officials who were inimical towards me. This case is the result of highhandedness of the local police who got registered this case due to enmity and cruelty against me. The case is absolutely false and frivolous."

7. P.W.3 Rehmat Ullah, A.S.I. was cross‑examined on the point of enmity and relevant paragraph from his cross‑examination is reproduced as .1 was posted 'in C.I.A. Sialkot in May, June, 199o. Mahmood' hussain, A.S.I. named above is also the recovery witness. I cannot say when he was posted in C.I.A. I do not remember whether he joined C.I.A., before or after my posting. I do not know any brother of the accused.1 do not know if Abid brother of the accused moved an application against Tahir Inspector and Mahmood, A.S.I. P.Ws. before the Anti Corruption Authority resulting into the registration of a case. I do not know about the institution of any writ petition before Hon'ble Lahore High Court by the same Abid against these two P.Ws as well is the Police Officers."

8. P.W.4 Tahir Masood, Inspector who is recovery witness and also investigated the accused has been, cross‑examined in the Trial Court by the appellant on the point of enmity and two relevant paragraphs from the cross‑ examination are reproduced as under:‑‑ "Rehmat Ullah and Mahmood Hussain, A.S.I. were already posted in C.I.A. before I took over as C.I.A. Staff. Afew days of my taking over, Mahmood Hussain and Rehmat Ullah, A.S.I. were posted as C.I.A. Staff Sialkot. It is correct that I arrested accused on 16‑6‑1991 in case under section 3/4, Prohibition Order, 1979. It is correct that the accused was already in police custody on physical remand. The recovery in this case was effected on 23‑6‑1991. I do not know if any writ petition was filed, in the Honourable Lahore High Court by any brother of the accused Azam against police. It is correct that Abid Ali brother of Azam moved an application against me and Mehmood. A.S.1, P.W. before the Anti‑Corruption Establishment. Volunteers he moved the application after this recovery, Whenever any case was registered against anyone of the brothers of the accused, they used to move applications subsequent against the police officers, I do not know if the Anti‑Corruption Department held an enquiry against me and Mehmood resulting into the finding that we accepted Rs.35,000 as bribery from Abid Salam brother of the accused. It is correct that on the basis of that application, a case was registered against us. It is correct that the allegation against me and Mehmood, A.S.I. in that case is the acceptance of Rs,31,000 as bribery. I do not know if other applications were also moved by Abid Islam and the accused against Mehmood, A.S.I. It' is incorrect that I have deliberately prepared false case against the accused, on the basis of enmity with the accused and his brothers. It is further incorrect that the case against the accused is false and was brought as his brother has been giving applications against police officers and filed a writ petition before the Hon'ble Lahore High Court, Lahore."

9. Learned counsel for the appellant. submitted that in the trial Court appellant tendered in evidence copy of writ petition Exh.DA, copy of telegrams Exh. DB, Exh.DC, Exh.DD and Exh.DE and also tendered in evidence copies of F.I.R. Exh.DF, Exh.DG and Exh.DH and these documents in support of defence plea of enmity with police did not receive due consideration in the trial Court and the High Court.

10. Exh. DA is memo. of parties showing that Writ Petition No.4522 of 1990 was filed seeking quashment of F.I.R. No.232 of 1990 dated 20‑6‑1990, registered at Police Station Uggoke, Tehsil and District Sialkot. It was further prayed that pending final decision of the petition respondents be refrained from harassing, pressurising, intimidating or‑ involving petitioner or any of his family members in any criminal case. Alongwith Exh.DA is filed copy of memorandum of W‑it Petition No.4522 of 1990, which is filed by Khawaja Abid Islam (brother of appellant) against S.P., D.S.P., Sialkot and S.H.O. Police Station Uggoke, Tehsil and District Sialkot and three other police officials, S.I. Ghularn Hussain, A.S.I. Mushtaq Ahmad and A.S.I. Yousaf and C.I.A. Staff, Sialkot. Two Inspectors namely Sarfrazul Haq and Aftab Ahmad of Excise Department have also been impleaded as respondents. It is mentioned in the memorandum of writ petition that petitioner and his brothers are renowned businessmen of Sialkot and contested local bodies elections. On account of political rivalry police harassed and victimised them at the instance of the other party. On 20‑6‑1M police raided the house of the petitioner without search warrants, insulted and abused women folk, broke open safe and took away cash of 3 lacs and plus. In order to give legal cover to the raid Police registered two F.I.Rs. for the offences under provisions of Prohibition (Enforcement of Hadd) Order 4 of 1979 and section 13 of the Arms Ordinance, 1965 against two brothers of petitioner namely Muhammad Azam and Muhammad Aslam and alleged that heroin and illicit weapons were recovered from the house of the petitioner.

11. Above mentioned writ petition was disposed of by order dated 27‑6‑1990, copy of which is produced on the record. This petition was dismissed as not pressed in view of observation which is reproduced as under:‑‑Transmit a copy of this writ petition alongwith Annexures to the S.P., Sialkot (respondent No.1) that after verification of the allegations made therein, particularly para. 4 of the writ petition, if he finds the allegations to be correct, then he should take necessary action against the police officers who are found guilty of misconduct."

12. Exhs.DB, DC, DD and DE are‑produced which are on the record, showing printed heading of telegram forms but dates are not legible. They appear pertaining to Writ Petition No.4522 of 1990 and that is why Exhibit numbers are given as they were produced in the trial Court. Learned counsel for the appellant has produced text of the telegram in which assertions are made of the same kind as are stated in the memorandum. of petition and need not to be repeated. Appellant has included in the record of this Court application sent by Khawaja Abid Islam to Director, Anti‑Corruption, alleging that police officials namely, Ghulam Hussain, Mushtaq Ahmad and Muhammad Yousaf and other constables of C.I.A. took away from his house on 20‑6‑1990 a sum of Rs.3,07,

200. Such applications were also addressed to Deputy Commissioner, Inspector‑General of Police and Chief Minister of Punjab, S.P., Sialkot, and D.I.‑G. Gujranwala Range.

13. Appellant has also produced copies of two F.I.Rs. from. which Exh.FD is F.I.R. No.17 of Police Station Daska, dated 4‑1‑1992 and Exh.DG is F.I.R. No.126 of City Daska dated 5‑1‑1992 and in both these F.I.Rs. allegations are levelled against A.S.I. Muhammad Ashraf and Mehmood. It is very clear that both these F.I.Rs. have been filed after the date of incident in the instant case which is 23‑6‑1991. It appears that the trial Court and the High Court have considered these two F.I.Rs. and have concluded that they do not indicate enmity of police officers named in them as they have been filed after the date of incident. Likewise importance has not been attached to the other documents filed in the defence by the appellant and the writ petition seemingly for the reason that police officials deposed to the effect that shop was not opened and recovery of weapon was not made therefrom at night as alleged by the prosecution. P.W.3 A.S.I. Rehmatullah, who deposed as witness of recovery of weapon stated that shop of appellant was surrounded by shops and residential houses and according to the information given by the appellant lie was a tenant in that shop. At another place this witness has stated that police knocked at the doors of neighbouring houses but ladies responded that males were not available admitted to have knocked the door of the house of Amin only.

14. Strangely enough neither in FIR nor in recovery memo‑ description of shop is given to identify it clearly except that it was shop of appellant, who in custody led the police to that shop, opened it and produced weapon. P.W.4 Inspector Tahir Mehmood, who investigated the case deposed before the trial Court in the manner which did not lend complete corroboration and whole hearted support to the deposition (if A.S.I, Rehmatullah. Relevant extract from the evidence of Tahir Mehmood is reproduced verbatim as under which speaks for itself and shows its intrinsic value:‑‑ "It is correct that the association of public witness is required under the law on the occasions of the recoveries of the weapons. There was no other inhabited house close to the shop of the accused except the house of Amin, therefore, I did not and I could not call anybody from the Public. Pakka Garaha is a vicinity having houses. There are shops around the place of recovery and not the houses near to it. I cannot give the distance of the house from the said shop except Amin's house. I do not know that the people resided on the upper portions of the shops. It is incorrect to suggest that I have deliberately shown the time of interrogations as 1‑45 a.m. so that I may extend an explanation for not joining the public witnesses and to give a coverage to fake recovery. Accused informed me that the shop was owned by Said Amin but I could not locate him for verification. I did not collect any rent deed or other document to establish the tenancy. Volunteers that I believed ,the statement of the accused. The next shop to 'the shop of the accused was that of Rehmatullah. There are more shops towards that side. I cannot say if two shops owned by the accused and his brothers are also located in the same Bazar."

15. Apparently there are contradictions in the evidence of these police witnesses with regard to the houses near the shop in‑ question and whether any attempt was made to call a neighbour to witness the recovery. One thing is certain that both these witnesses stated that appellant was tenant in that shop which belonged to Muhammad Amin. Inspector Tahir Mehmood also. stated that shop next to the shop in question was that of Rehmatullah. In such circumstances appellant examined Muhammad Amin so that he should clarify whether door of his house was knocked by police on the night of incident or not and whether shop in question owned by him was tenanted by the appellant or not. D.W.1 Muhammad Amin deposed before the Trial Court that he owned one house and two shops in Pakka Garaha. These 'two shops are situated on the road leading to road Bouken. He knew Muhammad Azani appellant, who is resident of Mohallah. Muhammad Azam, and his brother had their own shops on the same road near his shop. He did not tenant out or let out any one of his two shops to Muhammad Azam at any time. This witness further testified before the Trial Court that for the last 2/3 years police neither visited his ‑ house nor any shop, and they never contacted him in any such connection. This witness ' has stated whatever he wanted to state before the Trial Court. He has positively Asserted that he had not let out anyone of his two shops to appellant Muhammad Azam and the door of his house was not knocked by the police on the night of incident as claimed by A.S.I. Muhammad Ashraf and not so claimed by Inspector Tahir Mehmood both of whom have testified in conflicting manner on this point. Evidence of D.W.1 Muhammad Amin further spot‑lights discrepancies in the evidence of two police officials and renders their conflicting claims be not free from doubt.

16. D.W.2 Rehmatuffah has supported D.W.1 Muhammad Amin and admits that one of the two shops of Muhammad Amin is tenanted by this witness. The other adjacent shop was in possession of Mahmood Ahmad who is son of landlord Muhammad Amin. Shops of appellant and his brother are near the aforesaid shops. Appellant Muhammad Azain never tenanted anyone of two shops of Muhammad Amin. Police never visited either shop of Muhammad Amin. In this way both these defence witnesses claim that recovery of weapon wits not made from the shop belonging to Muhammad Amin. Cross‑examination of both these witnesses is extremely brief in which only two suggestive questions were asked. Firstly whether witnesses appeared before police in defence of appellant and secondly whether they deposed falsely being neighbours of appellant. Both these questions are denied. It is apparent that this fact is not disputed that both these defence witnesses are neighbours, of the appellant and since the shop in question and houses of these neighbours are in the same vicinity, they should have been the first persons to be aware of raid on the shop of the appellant' and recovery of weapon therefrom. It is also not understandable as to why the recovery has to be made in the middle of the night when appellant Muhammad Azam was in custody and admitted possession of weapon in his shop and also gave to the police key of the shop. In that case why police did not wait tiff morning is that recovery could have been made in compliance with provisions of section 103, Cr.P.C. and neighbours could have been joined in the investigation to attest recovery. Why there was such a rush for effecting recovery in the middle of the night. These are the doubts inherent in the claim of prosecution which are to be considered by the Court very carefully in the light of claim by the defence of enmity with police. There is no dispute about the fact that prosecution has to prove the case against accused beyond doubt and if there is any room for doubt, the benefit has to go to the accused and not prosecution.

17. It is necessary in this case to touch question of interpretation and requirements mentioned in section 103, Cr.P.C. in order to clarify position. Bare perusal of section 103, Cr.P.C. shows that it applies with full force when search is to be made of place which is in a locality. In other words it can be said that section 103 is relatable to the place and not to the person. If place is known ' where search is to be made and that place is situate in a locality which is inhabited by the people, then it is necessary to join two or more respectable persons from that locality to witness the search. Main object behind section 103, Cr.P.C. is to guard against possible chicanery and concoction and for that reason witnesses from the locality are to be joined in the investigation and if this is done and for some reason subsequently in the trial Court those witnesses from the locality are not produced for the reason that they had been won over, then evidence of police officer who made the recovery can be believed if his conduct in the investigation is beyond reproach. It is held in the case of Muhammad Khan v. Dost Muhammad and others PLD 1975 SC 607 that requirements of section 103 are no doubt mandatory and fulfilled but in the Court evidence of such witnesses from locality could not be produced for reasons satisfactorily explained then such evidence is to be accepted and not rejected merely on the ground that on that point there is evidence of police officer only particularly when requirements had been fulfilled. Much depends on the place where the search is to be made. Requirement of examining two witnesses from locality as contained in section 103, Cr.P.C. would not apply to a running I vehicle which is stopped at some place where there are no houses in the vicinity and search is made for the purpose of recovery. In support of preposition reference can be made to the case of Muhammad Shah and others v. The State PLD 1984 SC 278 in which Shariat Appellate Bench has held that section 103, Cr.P.C. does not apply to a running vehicle but applies to a fixed place to be searched which is already known.

18. In other words if the place is to be searched is already known and is situated in a locality which is inhabited, then it becomes mandatory for the police officer to join witnesses from the locality in the investigation and make search and recovery in their presence. If sincere effort .is, made by the police officer to join witnesses from locality in the search but he fails and gives reasonable explanation for taking witnesses not from the locality and the mind of the Court is satisfied that the police officer has not acted dishonestly, then such evidence can be accepted. Reference can be made to the case of Safdar Abbas and others v. The State PLD 1987 SC 467 in which in a murder case in connection with recovery as contemplated under section 103, Cr.P.C. reliance was placed on the evidence of Investigating Officer for the reason that there was nothing on the record to show that he has conducted investigation in dishonest manner and had explained how recoveries were effected and how he tried his best to obtain independent attesting witnesses but failed. In the case of Mirza Shah v. The State 1992 SCMR 1475, case‑law arising from interpretation of section 103, Cr.P.C. was surveyed in great detail It is concluded that if the circumstances are such that it is not possible to comply with the provisions of section 103, Cr.P.C. the Court will not insist on its strict compliance but will examine other evidence produced by the prosecution to prove recovery with care and caution and prosecution has to explain non compliance with the provisions of section 103, Cr.P.C. It is, therefore, held in that case that evidence of Investigating Officer is as good as of any other witness if it fulfils all the requirements which are necessary for accepting the evidence of witness. I

19. In the instant case after evaluation of evidence in the light of case‑law on the subject of search and recovery as contemplated under section 103, Cr.P.C. and mentioned above, we are of the considered view that in this case prosecution has failed to prove the case against appellant beyond doubt. In the instant case appellant was already in custody and disclosed unlicensed possession of Klashnikov in his shop and gave key to the police, during investigation at night. There is no satisfactory explanation as to why raid was made in the middle of the night in the absence of witnesses from the locality. Evidence of two police officers is conflicting on the point whether door of the house of Amin was knocked or not. Claim of the prosecution that appellant informed them that Klashnikov was in the shop which was in his possession as tenant and the owner of the shop was Amin stands falsified by the defence witnesses. Documents produced in defence in connection with filing of Writ Petition No.4522 of 1990 do not connect Police Officers Muhammad Ashraf and Tahir Mehmood directly but do show background 'of enmity with police and C.I.A. of that area in general. In any case writ petition Was filed in the year 1990 and incident in this case took place on 23‑6‑1991. There are other documents filed showing allegations levelled against both these police officers named above but in that connection claim of the prosecution is that such applications were made after incident in this case. These documents are to be considered in conjunction with general allegations of enmity against the police of the area and are not to be discarded on that short ground that allegations were made after the incident. In such circumstances we are of the view that evidence produced in defence has not been properly evaluated in the manner as is required and it does cause dent in the credibility of the prosecution case because it is the duty of the prosecution to prove the case against appellant beyond doubt and not the duty of the defence to disprove the case of the prosecution. We are therefore, of considered view that it is a fit case in which benefit of doubt can be‑ given to the appellant. Impugned judgments a e set aside and in the result appeal is allowed and appellant is acquitted. M.BA./M‑3166/S Appeal allowed.