' SALEEM AKHTAR, J.---This appeal with the leave of this Court challenges the judgment passed by the learned Single Judge of the High Court whereby the order of the Presiding Officer Special Court (Suppression of Terrorists Activities) Sargodha, convicting the appellant under section 13 of the Arms Ordinance, 1965, sentencing him to 7 years' R.I. And fine of Rs,20,000, in default thereof one year's R.I., was altered and sentence was reduced to 4 years' R.I. And fine of Rs,5,000 in default R.I.
For six months. The prosecution case is that on 24-7-1989, Khalid Mahmood, S.I., S.H.O. P.S. Issa Khel, was making investigations in respect of F.I.R. 128, dated 24th July, 1989, registered under section 13 of the Arms Ordinance and was present at the bus stand alongwith Rohtas Khan, Najibullah Head Constables, Ghulam Haider and Aurangzeb Constables. Mirza Shah the appellant, was under arrest under section 54 of Cr.P.C. In the aforementioned F.I.R. No,128. During interrogation, at about 5-00 p.m. The appellant disclosed that he had kept an unlicensed klashnikov in his shop in the main bazar of Issa Khel. The appellant led the police party to his shop and got recovered the unlicensed klashnikov loaded with 10 live cartridges from behind the Thans of cloth. The Sub-Inspector recovered and took possession of the klashnikov and the cartridges under a recovery memo.
Which was witnessed by Rohtas Khan and Najibullah, Head Constables. As the appellant could not produce the licence for the klashnikov and the cartridges, he was formally arrested in this case. The Sub-Inspector sent a draft complaint against the appellant to the police station for registration. On completion of investigations, the appellant was challaned. The prosecution examined Khalid Mahmood Khan S.I., Muhammad Rohtas, Head Constable, and Najibullah was given up. The appellant in his statement under section 342, Cr.P.C. Denied the recovery of klashnikov loaded with 10 live cartridges and stated that he owns a private car and plies it as a Taxi. Khalid Mahmood, S.I., hired the car but refused to pay its fare and had an altercation with him. He has, therefor; falsely involved him in this case. The Issa Khel police had also involved him in a false case in 1986. The learned trial Court convicted the appellant as aforestated which was maintained in appeal filed by him. Leave was granted to consider whether in the circumstances of the present case, the evidence relied upon by the Court below was sufficient to warrant the conviction. The main features of the case are that during investigation in an another case, the appellant was under arrest and at a bus stand, he disclosed about possessing of a klashnikov and led the police party to his shop in a market nearby from where behind the cloth Thans, it was recovered. The recovery was witnessed by two Head Constables who were accompanying the Sub-Inspector. The prosecution has examined the Sub-Inspector, Muhammad Rohtas Head Constable and Muhammad Yaqoob. The latter is a formal witness who stated that the complaint received from Khalid Mahmood, S.I., on 24-9-1989 was recorded by him in the Register of F.I.R.
' Ch. Muhammad Tufail, the learned counsel for the appellant contended that the recovery made by the police has not been proved as only three witnesses of the police had witnessed it and the provision of section 103, Cr.P.C. Has not been complied with. He further contended that the recovery was made in a shop situated in a market but no independent and respectable persons of the locality were associated with the recovery.
2. The first question which arises is whether in cases where during investigation recoveries are made by the police, section 103, is applicable. Mr. M. Nawaz Abbasi, AA.-G. Punjab, contended that section 103 is not applicable and its applicability is restricted to proceedings under Chapter VII of Cr.P.C. Section 103, Cr.P.C. Has been classified under Chapter VII which relates to 'processes to compel the production of documents and other movable property and for the discovery of persons wrongfully confined'. It is correct that recoveries and searches made under this Chapter can be initiated only on issuance of a summon or warrant by the Court. Section 103 reads as follows:-- "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 situated 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 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 specifically summoned by it.
(3) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section signed by the said witnesses, shall be delivered to such occupant or person at his request.
(4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.
(5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by any order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code."
The opening words of this section restrict its applicability to search made under Chapter VII.
Section 103, subsection (1) requires 'she officer' making a C search to associate two or more respectable inhabitants of the locality where the search is to be made, who may attend and witness the search. The object is to ensure proper and honest search by the police and to avoid harassm ent, concoction and maniupulation at this stage. However, the question is whether the provisions of section 103 can be applied to proceedings during investigation by a police officer. It is further to be considered whether the application of these provisions in such proceedings is merely by way of practice to ensure safe administration of criminal justice or it has some legal sanction behind it. In this regard, reference can be made to section 165, Cr.P.C. Which reads as follows:-- "165.--(1) Whenever an officer incharge of a police station or a police officei making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such things cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station; ' Provided that no such officer shall search, or cause search to be made for anything which is in the custody of a bank or banker as defined in the Bankers' Books Evidence Act, 1891 (XVIII of 1891) and relates, or might disclose any information which relates, to the bank account of any person except- --
(a) for the purpose of investigating an offence under sections 403, 406, 408 and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477-A (both inclusive) of the Pakistan Penal Code, with the prior permission in writing of a Sessions Judge; and
(b) in other cases, with the prior permission in writing of the High Court.
(2) A police officer proceeding under subsection (1) shall, if practicable, conduct the search in person.
(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time he may after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing (specifying the place to be searched and, so far as possible, the thing for which search is to be made); and such subordinate officer may thereupon search for such thing in such place.The provisions of this Code as to search warrants (and the general provisions as to searches contained in section 102, section 103), shall, so far as may be, apply to a search made under this section.
(5) Copies of any record made under subsection (1) or subsection (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate: ' Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost)..
Subsection (4). Specifically makes sections 102 and 103 of Cr.P.C. Applicable to search made by the 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 'oade 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.
3. There is a long list of judgments in respect of applicability of section 103 which we will discuss hereunder but in none of them, reference has been made to section 165, Cr.P.C. Which makes 103 applicable. The applicability of section 103 is not due to practice only but because of the statutory provisions which make it applicable. There are series of judgments, some of which were cited by the learned counsel for the parties but we have noted several other judgments of this Court on the point at issue.
4. In Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607, the scene of offence was in an open place where annual Mela and bullock race was held. The recovery of incriminating articles was challenged and it was noted that the recovery memo, bore the signatures of two attesting witnesses, one belonging to the village of the parties and the other of a neighbouring village. The S.I.P. Who had recovered it was also examined as a witness for recovery who stated on oath that the two witnesses who had attested the recovery memo. Were not produced because they had been won over by the defence. This part of the statement -had remained unchallenged and there was no doubt to its veracity. It was observed as follows:-- "This evidence when read with the contents of the various recovery memoranda, leaves no manner of doubt that the requirements of section 103, Cr.P.C. Were duly complied with. However, it must be conceded that the provisions of section 103, Cr.P.C. Are mandatory and are designed to guard against possible chicanery and concoction. But the argument is not that the requirement had not been complied with in this case: the argument on the other hand is, that no credible evidence has been produced in proof of due compliance with the above requirement. The fact that the recoveries of incriminating articles were made in the presence of two respectable witnesses of the locality is amply proved by the oral testimony of the S.I.P. Read with the recovery memoranda and failure to produce the best evidence has been amply explained.
' 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 as explanation if forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court."
' It may be noted that in this case the failure was not of non-compliance with section 103 but non- production of credible evidence in proof of compliance with section 103. The failure to produce these two witnesses was explained and accepted. It was, however, observed that the provision is mandatory but not absolute. Similar observations were made in Sultan and others v. The State 1987 SCM R 1177 and it was held as follows:- "Provisions of section 103, Cr.P.C. Are, no doubt, mandatory and it is to guard against possible manipulation. Therefore, it is all the more necessary that the Investigating Officer should have tried in this case to secure the attendance of independent witnesses to attest the recovery of the guns at the pointing of the accused/appellants, and failure to do so would cast doubt on the factum of recovery, although this principle may not be applicable to all the cases where recovery of incriminating articles is made under a different circumstance."
5. In Muhammad Afzal v. The State 1987 SCM R 1 the recovery of gun was held to be doubtful as "no disinterested and respectable person of the locality was made to join the investigation i.e, to witness the recovery of gun".
6. In Zardad v. The State 1991 SCM R 458 according to the prosecution during Nakabandi live bullets and klashnikov were recovered froni the accused. The prosecution examined four Assistant Sub- Inspec,ors as prosecution witnesses. The accused pleaded that he was not apprehended in a manner alleged and while he was travelling in the bus, he had a dispute with the Bus Driver and the police and, therefore, he was taken to the police station and involved in a false case. The accused was convicted and in appeal he challenged the recovery with reference to section 103, Cr.P.C. While repelling this contention, it was observed as follows:-- "6. There were two versions with regard to the recoveries. The one forwarded by the four police officers and the other by the petitioner. The two Courts have examined the evidence brought on record and preferred the prosecution evidence over the version of the petitioner. No illegality or infirmity has been found in drawing such conclusions as were drawn. It is not an absolute requirement that in every case witnesses of the public must necessarily be produced. If depends upon the facts of each case. In the case in hand the Police Officers were in the ordinary course of duty looking for the suspects and errant. They happened to come across the petitioner in the circumstances which aroused their suspicion leading to the arrest and recovery. In such a situation one cannot insist that the members of the public must necessarily appear as witness to the recovery. If their testimony is intrinsically sounds without there being anything in the circumstances to arouse doubt, then such testimony is sufficient for the purpose of establishing the facts."
' It may be noted that in this case the recovery seems to have been made in a bus on a road. From these judgments, it seems clear that section 103 is applicable Co search made by a Police Officer during investigation but its applicability will depend upon the facts and circumstances of each case. If the circumstances are such that it is not possible to comply with it 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.
7. Reference may be made to other judgments of this Court where section 103 has not been applied. These cases illustrate the circumstances in which it may not be possible to strictly comply with the provisions of section 103.
8. In Muhammad Shah v. The State PLD 1984 SC 278 (Shariat Appellate Bench), the Police Party had intercepted on the Mall Road, Peshawar, a Suzuki and recovered four cartons of liquor. The recovery memo. Was prepared by Inspector, Ghulam Muhammad and witnesses by Shah Wali Muhammad Khan, Inspector. While dealing with the contention that recovery should not be believed as provision of section 103 has not been complied with and two respectable persons of locality, have not witnessed the recovery, it was observed that section 103, Cr.P.C. Does not apply to a running vehicle. It applies to a search in respect of a place or locality. It was further observed that in interceptions of the nature when a running vehicle is stopped during a check, it is difficult to obtain two witnesses of the locality as it is not sure that during the checking they would be able to lay hand on any such vehicle and further that element of secrecy has to be maintained. It is true that section. 103 as it stands is a part of Chapter VII but when by virtue of section 165, Cr.P.C. It is applied to investigations then its applicability is restricted only to the extent it is capable of being applied in the facts and circumstances of the case. Therefore, with respect, it may be observed that during investigation, the applicability of section 103 is not restricted to any locality, house or fixed place of abode. Even in cases where the vehicles or buses, are intercepted in such circumstances that there is every possibility of compliance with section 103, investigating officer should give preference to this procedure. However, if he is unable to comply with it, he must explain the reasons for non- compliance. Sometimes, the facts and circumstances as proved, themselves furnish the explanation. It should be remembered that the law takes care against false implication and harassm ent of innocent citizens and the principles of section 103 are merely intended to avoid such a situation. This judgment of the Shariat Appellate Bench was followed in Malik Aman v. The State 1986 SCMR 17 (Shariat Appellate Bench). In this case, the accused was caught red-handed by a police constable, who made search in the bus in which the passengers were travelling. The main evidence against the accused was deposition' of Shahji Gul, Constable, in respect of whom it was accepted that he had no reason to falsely implicate the accused. In such circumstances, the plea of non-compliance with section 103 was rejected and the solitary evidence of the police constable was accepted as he had no aniumus against the accused and there was a concurrent finding by two Courts below.
9. In Khair Gul v. The State 1989 SCMR 491 (Shariat Appellate Bench) the Police Inspector while on patrol duty received spy information about two persons sitting in a car in front of Khyber Hotel with heroin. He picked up two witnesses from the, public (one of whom was produced) raided the car which was parked with the two accused sitting on the front seat and a bundle was recovered from the car. In these circumstances, witness from the public coupled with the statement of the police officer was held to be sufficient to establish the recovery, as no other fault was found therein. It was, therefore, observed that no legal ground was available to challenge the recovery on the ground of non-compliance or improper compliance with section 103, Cr.P.C.
It can be observed that strict compliance and the rigor of section 103 as sought by the defence has been softened down provided the facts and circumstances of the case justify it. In all these cases, where such view has been taken, the recoveries were made mostly during raids or Nakabandi and in such cases, circumstances may justify non-availability of respectable persons of the locality and, therefore, if there is no infirmity, animus or mala fides attached to the Investigating Officer, the evidence of such police officer or witnesses from public can be accepted. However, this does not mean that section 103 is not applicable at all. In Rehmat Ali v. The State 1984 SC MR 109 there seems to be only a passing observation that mere non-examination of the Lumberdar or other residents of the locality was not sufficient to discard the recovery. As the judgment does not contain detailed facts, it would be difficult to state under what circumstances such observation was made. The Court seems to be more influenced by the evidence of two eye-witnesses which was accepted.
10. In Ballia and others v. The State 1985 SCMR 854 it was observed that the applicability of section 103 to a recovery made at the pointing of the accused was not clearly established and was doubtful and further that section 103 is applicable to a search under Chapter VII of the Cr.P.C. In pursuance of the search warrant. It was further observed that section 103 insists on respectability of witness and may not be disbelieved merely because he does not belong to the locality. So far applicability of section 103 is concerned, it has fully been discussed with reference to section 165, Cr.P.C. And needs no further discussion. In this connection, reference may be made to Yar Muhammad and 3 others v. The State 1992 SCMR 96. In this judgment while referring to most of the judgments, discussed above, it was observed that section 103 is applicable to the cases of recovery made by the police during investigation and unless from the facts and circumstances of the case, it is not possible to obtain Mashir of the same locality where the recovery and arrest is made the prosecution may pick up any other person to act as such. To the same effect, observation was made in Yamin Kumhar v. The State PLD 1990 Kar.
275.
11. 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 noncompliance with section 103.
12. In Rehan v. The State 1976 SCMR 72 a Revolver was recovered from the accused and was witnessed by two policemen who were produced but were not cross-examined on behalf of the accused. It was held that mere fact that both the witnesses of recovery were police officers is no reasonable ground for disbelieving than particularly when they were never cross-examined. In the absence of detailed facts, it is not clear that circumstances existed to justify such proof.
13. In Mumtazuddin v. The State PLD 1978 SC 114 it was observed that a recovery can be proved by evidence of the investigation officer alone but the question is always of the facts and circumstances of the case. However, as the prosecution case was sought to be proved by a solitary eye-witness whose evidence was full of infirmities, the evidence of the Investigation Officer was not accepted as sufficient probative force to furnish corroboration.
14. The view expressed in Rehan v. The State was followed in Muhammad v. The State PLD 1981 SC 635 and it was held that evidence of a policeman proving recovery cannot be disbelieved merely because he is a policeman. To the same effect is the observation in Muhammad Shah and others v. The State (supra) and Malik Aman v. The State (supra). In Ballia and others (supra) the evidence of the Investigating. Officer in the absence of public witnesses who had not been produced as they had been won over, was believed. In a recent judgment in Zardad v. The State 1991 SCMR 458, discussed above the circumstances of the case permitted the testimony of a policemen was accepted.
15. 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.
16. Having discussed the judgments and the principles laid down it is to be considered whether in the present case the facts justify the acceptance of the evidence of the police officers. The appellant was under arrest for investigation and on his pointation the police party accompanied him to his shop, from where klashnikove with live cartridges were recovered. There is nothing in the evidence except a feeble suggestion that the Investigating Officer and the police constable were inimical to the appellant or had for ulterior motive planted the klashnikov and cartridges due to any grudge or mala fide. While examining such cases, one has to keep in view its nature, circumstances and the prevailing situation in which the Police Officer has to make recovery or arrest. It has been noted that in certain situations the witnesses are fearful of involving themselves in the investigation. Reference can be made to Muhammad Shafi and others v. The State PLD 1967 SC 167. There is growing tendency, as has been observed in several judgments of the superior Courts, that public neither volunteers to become witness nor the eye-witnesses come forward to help the investigation. Such reluctance on the part of the general public may be due to various reasons including the fear from persons of impeachable character who qre dangerous, desperate and revengeful. The other reasons are that generally the moral values have declined and also due to the faulty attitude of the police against which complaints have been made and the delays which occur in investigation and the trial of the cases. These facts are so prominent that it is difficult to ignore them. If one takes note of the non-cooperative attitude of the public witnesses for drawing certain inferences in favour of prosecution, then one cannot ignore the lapses in investigation and growing tendency to involve a large number of persons sometimes, by the complainants or the police. Therefore, it is not only the public but the officials as well who are also to be blamed for such a situation. It has become a common feature which can be noticed that in cases of dacoity, kidnapping for ransom, recovery of big hauls of heroine drugs, and prohibited arms, the eye-witnesses prefer either to avoid or refuse to testify anything out of fear and risk to personal safety. These are some of the explainable factors and circumstances which may justify acceptance of testimony of police officer which otherwise does not suffer from infirmity.
17. The evidence of the police officers has been believed by the two Courts below, therefore, at this stage, we are not inclined to reappraise it as on the face of it, it does not seem to suffer from any