This is an appeal under section 417, Cr.P.C. By the State through the Advocate-General, N: W.F.
Province against the order, dated 8-4-1989, passed by a Magistrate of the First Class, D.I. Khan, whereby accused-respondent was acquitted of the charges under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. No.4 of 1979) in exercise of the powers under section 249-A, Cr.P.C.
2. The facts of the case are that Ghulam Qambar, I.H.C. Attached to C.I.A., D.I. Khan, conducted the search of the house of Rafiullah alias Gul accused-respondent with a view to recover the articles which were alleged to have been stolen in case F.I.R. No.380/84 registered under the provisions of section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Ordinance VI of 1979). At the relevant time he was accompanied by another L.H.C. Allah Bakhsh and H.C.
Muhammad Bakhsh. During the search the alleged stolen property could not be recovered.
Nonetheless it was alleged that they caught hold of a hand bag lying in an almirah of the residential `Kotha' of the said house and on opening it they recovered vide memo. Exh:P.C., two polyethene envelopes containing Opium and dust of Hasheesh weighing 600 grams and 280 grams respectively. The said I.H.C. Separated four grams each of the contraband drugs for chemical analysis and sealed into separate parcels. He prepared the site plan Exh.P.B. And sent the Murasila Exh.PA./1 where F.I.R. Ex.PA. Was registered the same day at Police Station City, Dera Ismail Khan under the aforementioned provisions of law.
3. After the investigation of the case, the accused-respondent was challaned to the Court of S.D.M., D.I. Khan on 28-9-1986 to stand his trial. After 51 adjournments for the evidence of the prosecution, only partial evidence of the two I.H.Cs. Could be recorded upto 8-4-1939. On the last mentioned date also the remaining prosecution evidence was not in attendance, therefore, the learned Magistrate in exercise of his powers under section 249-A, Cr.P.C. Acquitted the accused. Hence this appeal by the State against the acquittal of the accused-respondent.
4. Mr. Ejaz Muhammad Khan Alizai, the learned Assistant Advocate-- General, made a grievance of the fact that notwithstanding the inordinate delay in producing the prosecution evidence, the learned Magistrate could invoke the provisions of section 249-A, Cr.P.C. Only after hearing both the parties on merits of the case and appraising the available evidence on the record. The learned Assistant Advocate-General also submitted that undoubtedly the learned Magistrate had made several orders for summoning of the witnesses, but no such summons are available on the record and that there is nothing to substantiate that these orders were duly complied with by the staff of his Court, or by the Prosecution Agency. The argument of the learned Assistant Advocate-General precisely is that the accused-respondent by virtue of the impugned order has not been acquitted on the ground of abuse of process of Court, but the learned Magistrate has recorded acquittal on the ground that the house which was searched in fact was neither shown to be belonging to him nor that he was in occupation thereof as a tenant. According to him the learned Magistrate has erroneously held the view that prosecution should have inquired into the factum of the ownership of the house and after tracing the owner he should have been examined to substantiate the allegations that the accused was occupying the house in his capacity as a tenant or otherwise.
5. There is no substance in the contentions of the learned Assistant Advocate-General. No doubt the police officials are competent to witness the recovery memos. Evidencing the recovery of the case property. Nonetheless in the instant case apart from the police witnesses two persons of the locality, namely, Muhammad Aslam and Hafiz Noor Elahi, were associated with the recovery, but both of them were neither served, nor brought into the witness-- box to testify to the factum of the search of the premises of recovery which is the basis of this case. Then there is nothing on the file to show as to whether the house allegedly searched by the Investigating Officer was in fact in occupation of the accused-respondent and further that the search thereof was conducted strictly in compliance with the formalities laid down under Chapter VII of the Criminal Procedure Code particularly those under sections 98 and 103 thereof. The two persons of the locality, namely, Muhammad Aslam and Haji Noor Elahi were not examined nor any serious attempt was made to bring them in the witness-box to prove that the search was conducted strictly in accordance with section 103, Cr.P.C. On a plain reading of section 103, Cr.P.C., it would appear that the intention of the legislature was that the Police Officer at the time of search would be accompanied by two persons, who should be other than police officials. In such regard their Lordships of the Supreme Court in case of Muhammad Khan v. Dost Muhammad PLD 1975 SC 607 seem to point to the purpose underlying the presence of witnesses at the time of search. At page 621 of the report the judgment contains the following observations:-- "However, that may be, the requirement of section 103, Criminal Procedure Code 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 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."
6. The above passage would show that the provisions of section 103, Cr.P.C. Are designed as a safeguard against the possible plantation of property and consequent false implication of an accused person. The purpose of section 103, Cr.P.C. Is to ensure that the testimony given in Court in regard to the A result of search should not depend upon the Police Officer alone but also upon the evidence of independent persons and that all possibilities of mischief be minimised by the availability of independent persons and the accused should not be at the mercy of only Investigation Officer. In the present case, the I search itself was not conducted in accordance with the provisions of section 103, Cr.P.C. And even if it was so done, the two witnesses of the locality, namely, Muhammad Aslam and Hafiz Noor Illahi were not produced despite 51 adjournments of the case recorded on the order-sheets.
7. The case against the accused was registered on as far back as 28-3-1986. The investigation was complete within two days. Even the report of the Forensic Science Laboratory was received on 26- 4-1986. Nonetheless the accused was challaned to the Court on 28-9-1986. There is no justification available on the record to show as to why the fate of the case was allowed to hang on pending submission of challan for over five months with the Prosecution Agency. As stated earlier, the accused was challaned to the Court on 28-9-1986 but the two police witnesses, namely, Ghulam Qambar, I.H.C. And Allah Bakhsh, L.H.C. Were examined on 1-2-1988 after 24 adjournments and thereafter the two private witnesses appeared one on 4-3-1989, but could not be examined, due perhaps to the so-called absence of the accused, although he did appear later on but they were not examined and the case continued to be adjourned till 8-4-1989 when the impugned order of acquittal was passed. The evidence of Ghulam Qambar and Allah Bakhsh P.Ws. Who were police witnesses even if believed would have been wholly insufficient for the conviction of the accused, because the remaining prosecution witnesses, namely, Muhammad Adam and Hafiz Noor Illahi failed to attend the Court despite repeated issue of process against them. The reasonable presumption is that they are not likely to attend even hereafter though the process may be repeated against them and even if they do attend, in which case. It is not likely to succeed on the inherent lacuna pointed out by the learned Magistrate qua the factum of occupation by the accused-respondent of the house searched. In the circumstances I would uphold the order of acquittal recorded under section 249-A, Cr.P.C. Recorded by the learned Magistrate. In the circumstances, I am not inclined to interfere with the impugned order and would dismiss this appeal in limine