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Criminal Revision No. 58/1 of 1986, decided on 9th March, 1987.

---S. 103--Object of S.103, Cr.P.C.--Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 4--Words shall call' appearing in S. 103, Cr.P.C.- Connotation--Police at the time of search has to be accompanied by two persons who should be other than police officials.--[Words and phrases- Recovery].

The intention of the law-makers was that the Police Officers at the time of search would be accompanied by two persons who should be other than police officials.

The provisions of section 103, Cr.P.C. is designed as a safeguard against possible plantation of property and consequent false implication of an accused person. Section 103, Cr.P.C. makes it mandatory upon the officer about to make a search under Chapter VII to call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search. The section used the word shall call', and grave doubt would be cast on the whole transaction, if this provision is breached. 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 Officers 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.

Malik Rab Nawaz Noon for Petitioner.

Muhammad Aslam Uns for the State.

Date of hearing: 9th March, 1987.

-- Abdul Hameed son of Fazal Dad, resident of Malpur, Tehsil and District Islamabad, the petitioner, is aggrieved of the order of conviction, dated 4-5-1986 passed by Magistrate 1st Class, Islamabad which order has been confirmed by the Additional Sessions Judge, Islamabad on 7-12-1986. The petitioner has been sentenced under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and sentenced to two years' R.I. with fine of Rs.1,000 and in case of default to further undergo S.I. for six months.

2. The allegations against the petitioner are contained in a Murasala drafted and sent to the Police Station Secretariat, Islamabad by M.A. Farooqi S.H.O. and is to the effect:--

That on 23-5-1985 on a direction from S.D.P.O. Baharakau a police party consisting of Safiullah Khan and Tariq Mahmood T/A.S.I. alongwith police staff raided the village Malpur (as according to the information one person had in his possession liquor). A person whose name was later disclosed as Abdul Hameed son of Fazal Dad caste Ghakkhar resident of Malpur was seen in a Gali (lane) adjacent to his house in suspicious circumstances. Seeing the police he started putting the bricks on each other and attempted to run away but was apprehended when the bricks were removed 25 boxes of Gatta containing 1,175 plastic bottles were secured therefrom, Abdul Hameed was asked about this Desi Sherab' but he could not make a satisfactory reply. He was, therefore, arrested. The recovery memo. was prepared by M.A. Farooqi and Tariq Khan T/A.S.I. and Muhammad Nawaz Khan A.S.I. acted as Mashirs'. A sample from the bottles was obtained and sealed into a parcel.

The Murasala was sent to the Police Station Secretariat, Islamabad where a formal F.I.R. was recorded by Muhammad Raeef (P.W.4). The bottles recovered alongwith the sample parcel were kept in Malkhana' and on 12-6-1985 the sample parcel was sent through Muhammad Humayun F.C. (P.W.2) to the Chemical Examiner and was received in his Office on 13-6-1985 and examined on 18- 6- 1985 and the report Exh.P.D. was sent. After the usual investigation the accused/petitioner was sent up to stand trial in the Court of the Magistrate 1st Class, Islamabad for an offence under Article 4 of the said Order:'

3. At the trial the prosecution examined six witnesses. They are P.W.1 (Muhammad Sharif H.C.), P.W.2 (Muhammad Humayun), P.W.3 (Tariq Mahmood A.S.I), P.W.4 (Muhammad Raeef), P.W.5 (Muhammad Nawaz A.S.I.) and P.W.6 (M.A. Farooqi S.H.O. the Investigating Officer). The petitioner denied the charge and produced two defence witnesses namely Muhammad Aslam (D.W.1) and Raja Fakhre Zaman (D.W.2) and also appeared as his own witness in disproof of the allegations against him under section 340(2), Cr.P.C.

In the view that we are taking in this case it is not necessary to refer, to the evidence in detail.

4. Malik Rab Nawaz Noon, Advocate, the learned counsel for the petitioner has urged before us that the case in question exhibits gross violation of the provisions contained in section 103 of the Code of Criminal Procedure. He has urged that the prosecution case rests only on recovery and since section 103, Cr.P.C. lays down a mandatory and inviolable rule that two or more respectable inhabitants of the locality must be present at the time of search, non-compliance of the provision of this section would render the prosecution story open to serious doubt. The learned counsel also argued some factual aspects of the case but it would not be necessary to enter into such controvertial points of facts especially when the appeal of the petitioner has also been rejected.

5. Subsection (1) of section 103 of the Code of Criminal Procedure reads as follows:-

"Section 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)"

On a bare reading of section 103, Cr.P.C. it would appear that an officer making the search shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search.

The question, therefore, arises whether in the instant case the absence of any person from the public would either vitiate the search or entitle the petitioner to acquittal. One way of looking at the matter is that it would be unfair to brand all Police Officer as being not respectable. On such analysis it would indeed be easy to state that since the two police officials who had witnessed the search, had not been shown as disrespectable and by reason of the fact of their being police officers of the local police station, it would be proper to have their services as Mashirs. All the same, one cannot overlook that if the Code of Criminal Procedure had intended to sanctity search by police officers only the provision would have been couched in different language. On a plain reading of section 103, Cr.P.C. it would appear that the intention of the law-makers was that the police officers at the time of search would be accompanied by two persons who should be other than police officials. In such regard the Supreme Court of Pakistan in case of Muhammad Khan v. Dost Muhammad and others P L D 1975 SC 607 seems to point to the purpose underlying the presence of witnesses at the time of search. At page 621 of the report of judgment contains the following passage:-

"However, that may be, the requirement of section 103, Cr.P.C. is not absolute in the sense that the failure to comply with it, will make the search illegal. As observed already the object is to guard against possible chicanery and concoction. Therefore, Courts will ordinary insist on a strict compliance with this requirement and view its non-compliance with suspicion, unless an explanation is forthcoming or Failure to secure the presence of respectable witnesses or omission to examine them in Court."

The above passage would show that the provision of section 103, Cr.P.C. is designed as a safeguard against possible plantation of property and consequent false implication of an accused person. Section 103, Cr.P.C. makes it mandatory upon the officer about to make a search under Chapter VII to call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search. The section used the word shall call', grave doubt would be cast on the whole transaction, if this provision is breached. 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 Officers alone but also upon the evidence of independent persons and that all possi6Tty, of mischief be minimised by the availability of independent persons and no one should be at the mercy of only Investigating Officer. In the present case the Police Officers had information in regard to the liquor in the house of the petitioner the police party had proceeded from the police station to village Malpur for the recovery which is a populated village and it would neither have been inconvenient nor cumbersome to pick up witnesses from that village.

In this view of the matter when the recovery itself is not free from doubt, the report of the Chemical Examiner does not improve the prosecution case.

6. For the above reasons we are of the view that the gross violation of law laid down by section 103, Cr.P.C. in this case resulted in a failure of justice and it would not be safe to uphold the conviction of the accused/petitioner. We, therefore, allow this revision and set aside the impugned judgments and the consequent sentences imposed on the petitioner. He is present on bail. His bail bond stands discharged.

M.B.A./343/F.Sh.C. Petition accepted.

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