The facts leading to the present revision application may be briefly stated as follows :-
1. S. H. O. Muhammad Yakoob of Khanpur Police Station received information that the applicant was in possession of unlicensed arms. On 6-12-1975 this police officer went out with a police party consisting of two Head Constables and four Constables to Yarn Lund Police Outpost and from there he proceeded to the house of the applicant for the purpose of raid. The house of the applicant was surrounded and searched. A '303 rifle containing two rounds was found lying behind a box and the same was secured in the presence of the applicant. A mashirnama was prepared by S. H. O.
Muhammad Yakoob and H. C. Qaim Din and H. C. Faiz Muhammad acted as mashirs. The applicant was arrested and after the usual investigations was sent up to stand trial in the Court of Assistant Sessions Judge at Ghotki for an offence under section 13(E) of the Arms Ordinance.
2. At the trial the prosecution examined S. H. O. Muhammad Yakoob and H. C. Qaim Din, who have implicated the applicant. The applicant examined Allah Rakhio and Nazar Muhammad in his defence, but in the view that I am taking in this case, it is not necessary to refer to the evidence of defence witnesses. The applicant had denied the charge.
3. Mr. Muhammad Ali Shaikh, the learned Advocate for the appellant, has urged before me 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 of the Code of Criminal Procedure 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 doubts. The learned Advocate faintly argued some factual aspects of the case also and it would not be necessary to enter into such controvertial points of fact especially when the appeal of the applicant has also been rejected.
4. Subsections (1) and (2) of section 103 of the Code of Criminal Procedure read as follows :- "Section 103.-(l) 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).
(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it."
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. A view seems to have prevailed in some of the old cases that it was obligatory on the officer conducting the search to call and get two or more respectable inhabitants of the locality to witness the search. Reference may be made to AIR 1921 Pat. 503 and to a case reported in 7 Cr. L J 479. However, there is a string of other rulingsto the effect that irregularity in search neither vitiates the trial nor affects the conviction of the accused unless prejudice becomes patent. Reference in that context may be made to the cases reported in AIR 1941 Rang. 333, AIR 1944 Oudh 321, PLD 1962 Lah. 58 and also to PLD 1964 Lah. 386. 'I he question, therefore, arises whether in the instant case the absence of any person from the public would either vitiate the search or entitle the applicant to acquittal. One way of looking at the matter is that it would be unfair to brand all police officers as being not respectable. It is also plain that in the mofussil the word "locality" connotes wider sense than the limits which may reasonably be placed on the said word while referring to it in large cities. On such analysis it would indeed be easy to state that sine the two head constables 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 sanctify search by police officers only the provision would have been couched in different language. On a plain reading section 103, Cr. P. C. It would appear that the intention of the law-makers was 14 that the police officers at the time of search should be accompanied b two persons who should be other than police officers. In such regard the Supreme Court judgment in the case of Muhammad Khan v. Dost Muhammad and others (PLD 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 the judgment of the Supreme Court contains the following passage: "However, that may be, the requirement of section 103 is not absolute in the sense that 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 ordinarily insist on a strict compliance with this requirement and view its non-compliance with suspicion, unless an explanation is forthcoming for 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. In such regard a Division Bench of the Lahore High Court in the case of Mumtaz Ahmed v.
The State (1974 P Cr. L J 137) relying on the previous case of Sardar Ali v. The State (PLD 1964 Lab.
386) expressed their views as follows :- "Section 103 of the Code of Criminal Procedure makes it mandatory upon the officer or the person about to make a search under Chapter 7 to 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 . . . . The section uses the words "shall call". If a person has been called from a place other than the locality it may not make the search invalid but if it is populated locality grave doubt would be cast on the whole transaction because in such a case the inference would be that the police officer making the search was prompted by a desire to have such witnesses as would be easily persuaded to support any story which he might put forward."
Tufail Ali A. Rehman, C. J., also adverted to the provisions of section 103, Cr. P. C. In the case of Abdur Rashid v. The State (1975 P Cr. L J 565) and expressed as follows :- "I would, nevertheless, agree that the purpose of section 103, Cr. P. C. Being 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 fraud in the case of the search be minimised by the availability of independent persons, the principle underlying this section. If not the actual letter of it may well be insisted upon in such a case. Now it is true that the witnesses who have signed the mashirnama are not persons resident in the locality."
5. Several other cases could be cited on the topic but in my view, which is based on the existing state of law, two such witnesses of a locality should be called before a search is undertaken.
However, there may be cases where a police officer on account of the locality or time or the risks of destruction of evidence may not find it feasible to engage himself in search of witnesses before actual carrying out of the search. To illustrate, if a police officer comes to know that A has a gun in his house with which he is going to shoot who is wrongfully confined there, it would be idle to insist that the police officer should not go to recover the gun or search for the confined person before obtaining search witnesses. Such cases, indeed are rare but in these or similar circumstances the police officer can rightly be relieved of the obligation which section 103, Cr. P. C. Imposes on him.
The circumstances should, in such cases, be clearly stated in the evidence so that the Court may judge for itself whether departure from section 103, Cr. P. C. Was justified in the circumstances.
6. In the present case the police officer had information in regard to unlicensed arms lying in the house of the applicant and for the recovery of such arms he proceeded from the Police Station to Khanpur which is a fairly populated town and it would neither have been inconvenient nor cumbersome to pick up mashirs from that town. The evidence further discloses that before proceeding to the house of the applicant the same police officer had gone to Yaru Lund Police Outpost. The police officer could have easily picked two witnesses from there. The Additional Sessions Judge, while hearing the appeal, has made some ad hoc observations to the effect that it was doubtful if the inhabitants of applicant's own village would have come forward to support the case of the prosecution and he even observed that if such inhabitants did volunteer to witness the search the defence would have argued that they were interested and under the influence of police.
To say the least, this was a patently wrong approach in a criminal case. When the law makes a provision the Courts cannot relieve public functionaries of the obligations on ad hoc and sweeping considerations that no one in the locality would be prepared to serve as a mashir or that if he would be so prepared he would be branded as a witness under influence of police. Each case depends on its own merits. Section 103, Cr. P. C. Itself insists e on respectable persons being called and there can be no doubt that respectable persons are available in every locality and they can easily be chosen by the police. Provisions of this nature are designed to create a safeguard against possible chicanery and concoction on the part of Investigating Officer and by allowing such provisions to be violated one is likely only to put a premium on possible false implication. Such a position cannot be lightly countenanced.
7. For the above reasons, I am 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. I allow this application and set aside the judgment of a conviction and the consequent sentence imposed on the applicant.