' SHAFIUR RAHMAN, J.--- Leave to appeal was granted as the appeal presented certain peculiar features like a series of complaints against the Police and involvement of the family of the appellant in criminal cases prior to the occurrence.
2. The District Magistrate of Sialkot had been receiving complaints about the family of the appellant dealing in narcotics. It was the matter of discussion in the monthly Anti-Narcotics meeting presided over by the Deputy Commissioner. Mr. Aamir Ijaz Akbar, an executive Magistrate First Class/Illaqa Magistrate (P.W. 2) claimed that he received a direction from the Deputy Commissioner, Sialkot through the Assistant Commissioner to organize and conduct a raid on the house of the appellant's father. He organized a raid party on the morning of 27-3-1991. The raiding party comprised another Magistate Liaqat Ali Magistrate First Class (not produced), Abdul Aziz D.S.P. City (not produced), Zulfiqar Ali S.H.O. (P.W.3), Bashir Ahmed, S.I. (P.W.1), Tasneem Ghani S.H.O.
(not produced), Shaukat Ali (P.W.4) and other Police Constables. According to the Magistrate Aamir ljaz Akbar they were all outside the house of Akhtar Adil when appellant Arshad Zubair his son came out of the house with a bundle in his hand. Tasneem Ghani and Zulfiqar (P.W.3) apprehended him. On opening the bundle an unlicensed Kalashnikov P.1, Magazine P2 containing 20 live cartridges, 60 spare live cartridges and four packets containing heroin one k.g. Each were recovered. A Memo. (Exh. PC) was prepared by the Magistrate and the two recovery witnesses were Tasneem Ghani S.H.O. Police Station Kotwali and Zulfiqar All (P.W.3) S.H.O. Cantt. As regards omission to associate the public witnesses in the recovery, the Magistrate Aamir Ijaz Akbar (P.W.2) stated as hereunder:- "I asked Shaukat All S.H.O. PW to associate any public person before conducting the raid but he told me that no public person would be willing to associate himself and to make statement against Akhtar Aadil due to his previous record. (Later part is volunteered). I did not myself try to associate any public person in the raiding party."
3. Shaukat Ali (P.W.4) on the contrary stated as hereunder:-- "I contacted the shopkeepers of Adda Pasroorian and asked them to join the raiding party but they declined to do so. I contacted Hussain the Proprietor of Hussain Sweet House and Pervaiz alias Paija Pehlwan Councillor but they declined to join the raiding party. Many persons had collected at the spot and had seen the recovery of Gathri from the possession of the accused but they declined to become witnesses. It is correct that Professor Khawaja Rashid, Muhammad Sharif Soni, Advocate, Arif Pervaiz Councillor and Khawaja Aftab Ahmed were present at the spot at the time of recovery. I did not record the statements of Liaqat Ali Magistrate and Malik Abdul Aziz DSP although they were members of the raiding party."
4. The plea of the appellant at the trial was that no recovery had been effected and he was falsely implicated for the reason as hereunder:-- "My father Akhtar Aadil filed writ petition against Tasnim P.W. And other police officials before the registration of this case. The police, therefore, became inimical and planted the recovery upon me due to that enmity."
' He appeared himself as a witness under section 340(2), Cr.P.C. And produced two witnesses in defence. He also produced following certified copies of the documents in defence:--
(1) Order dated 20-8-1990 in Writ Petition No, 5794 of 1990 (Exh. DA)
(2) Writ Petition No, 5794 of 1990 (Exh. D.B.)
(3) Order dated 5-8-1990 passed in W.P. 5393/90 and /Writ Petition (Exh. D.C.)
(4) Writ Petition No, 5568/1981 (Exh.D.D.)
(5) Private complaint filed on 15-7-1990 (Exh. D.E)
(6) Order dated 17-10-1990 passed in Writ Petition No, 6731/1990 and Writ Petition (Exh. D.F.)
(7) Order dated 23-6-1990 passed in Writ Petition No,4349/1990 and Writ Petition (Exh.D.G.)
(8) Report of Chemical Examiner dated 2-10-1990 (Exh. D.H.)
(9) Private complaint dated 28-2-1990 (Exh.
(10) Private complaint dated 7-6-1990/19-6-1990 (Exh.D.J.).
' The two defence witnesses of the locality stated about his arrest but also that no recoveries were made from the appellant at that time.
5. In the Special Court which tried the appellant two main contentions raised were deliberate non- compliance of provisions of section 103, Cr.P.C. And the inimical and interested nature of the witnesses produced against the appellant on account of the numerous cases instituted by the appellant and his family members and associates.
6. As regards the first objection, the Special Court dealt with it, as hereunder:-- "The provisions of section 103, Cr.P.C. Are firstly applicable for the search made under Chapter VII of the Cr.P.C. And thus not applicable to the search of the person as is the present case. It is correct that the raiding party originally left for the search of the house of Akhtar Aadil, the father of the accused and it can be argued that in compliance with the provisions of section 103, Cr.P.C. The raiding party should have associated two respectable inhabitants of the locality. It has been repeatedly held by the superior Courts that the provisions of section 103, Cr.P.C. Although mandatory but are not absolute, the violation of which shall make the recovery illegal. Of course, the prosecution is supposed to give some justification for the non-observance of this provision. The Investi; iiing Officer Shaukat Ali S.H.O. (P.W.4) has stated that he tried to contact Hussain and Pervaiz @ Paija Councillors but they declined to join the raiding party. Aamir Ijaz Akbar M.I.C. (P.W.2) also stated that he asked Shaukat Ali S.H.O. (P.W.4) to associate some public persons before conducting the raid who told him that no public person would be willing to associate and to make statement against Akhtar Aadil due to his previous record. The prosecution had therefore, shown justification for the non-association of the public witnesses, although the provisions of section 103, Cr.P.C. Are not applicable to the present recovery because according to the prosecution witnesses the recovery was made from the person of Arshad Zubair accused when he was apprehended in the lane."
' As regards the second contention the learned Special Court observed as hereunder by reference to Writ Petition No, 5794 of 1990 (Exh. D.B.):-- "In this writ petition the father of the accused alleged that he had filed complaints against Sarwar Gondal S.H.O. P.S. Nekapura, Suhail Ahmad S.H.O. Nekapura and Tasneem Ghani S.H.O. P.S. Kotwali, District Sialkot in the Court of Judge, Anti-Corruption, Gujranwala and that Aamir Ijaz Akbar M.I.C.
(P.W.2) who was impleaded as respondent No,1 in that writ petition came to Akhtar Aadil alongwith other Magistrate on 17-8-1990 and threatened him to withdraw the complaints pending against 'the S.H.Os. This writ was filed on 19-8-1990 and the Honourable Judge passed orders Exh. DA on 20- 8-1990 directing the respondents of that writ petition including Aamir Ijaz Akbar MIC (P.W.2) to act according to law and thus the writ petition was disposed of without summoning the respondents or obtaining their comments. It may be mentioned here that Aamir Ijaz Akbar MIC (P.W.2) was cross- examined about this writ petition as well as the orders Exh.DA who admitted to have received the copy of the order Exh. DA from the Lahore High Court. Since it was not clarified during the cross- examination whether he received the copy of this order before or after the occurrence I therefore, recalled him under section 540, Cr.P.C. Who stated in his supplementary statement that he did not remember whether he received the copy of the Lahore High Court before or after the occurrence.
Great stress has been laid by the learned counsel for the accused that the enmity of Aamir Ijaz Akbar MIC (P.W.2) was brought on record by means of this writ petition. The order Exh.DA was passed on 20-8-90 and therefore it is most probable that the copy of the order had been received by the respondents from the High Court including Aamir Ijaz Akbar, M.I.C. (P.W.2) after the present occurrence which took place on 27-8-1990. Even if he had received this copy before the present occurrence he was only directed to act in accordance with law and therefore as an Illaqa Magistrate it was expected of him to conduct the raid."
' The defence evidence led at the trial was rejected by observing as hereunder:-- "He claimed to be the Vice-President of the Shopkeepers Union but he did not know the name of the President of the Union. Hafiz Asghar (D.W.2) claimed to be present at the vegetable shop situated beneath the floor of the mosque in the lane but Arshad Zubair accused himself stated in cross-examination that there was no shop in the lane nor there was any shop on any portion of the mosque situated in the lane.
' The witness himself admitted that he did not appear before the Police. The evidence of both these witnesses does not inspire confidence and it is not difficult to produce such witnesses. They were never produced before the Police during the investigation nor they contacted any higher police officer to disclose this fact. They have rather supported the prosecution case to the extent that the raiding party consisting of two Magistrates and Police Officials did come to the place of recovery. If at all police wanted to arrest the accused in some false case they could easily do so by arresting the accused from anywhere."
' The conviction was recorded under section 13 of the Arms Ordinance, 1965 and he was sentenced to four years' R.I. And a fine of Rs,20,000.
7. On appeal, the High Court upheld the conviction and sentence. With regard to section 103, Cr.P.C., the High Court observed as hereunder:-- "We hold the view that provisions of section 103, Cr.P.C. Were not attracted to the facts and circumstances of the case in hand. Appellant was apprehended by the raiding party outside his house when he tried to leave his house with the weapon. Even otherwise, the provisions of section 103, Cr.P.C. Are not mandatory and are surely directory in nature. It is well-settled law that members of the police force are as good witnesses as witnesses from the public."
' As regards the inimical nature of the testimony, the High Court observed as hereunder:-- "It is not believable that such a huge quantity of heroin and a Kalashnikov, P-1 with a large number of bullets could be planted upon the appellant with a view to take revenge from him because his father filed writ petitions before this Court against the police."
' It was also observed that the filing of such complaints and writ petitions was an effort on the part of the complainant to create evidence for himself the High Court holding as hereunder:-- "Similarly, institution of the complaint against the local Magistrate and the Police shows that a statement alone on oath was made by the complainant and thereafter proceedings in the complaint were not brought to their logical conclusion. This, of course, speaks against the appellant that he was out to create some evidence against the Police. We are convinced that the documentary evidence produced and relied upon by the appellant does not create any dent in the truthfulness of the prosecution version. A substantial quantity of heroin and a Kalashnikov with ammunition were recovered from the appellant when he was caught red-handed at the spot. It cannot be believed that two Magistrates and the Police had any animosity against the appellant.
They are public functionaries and as such in the performance of their duties, they raided the premises of the appellant and in consequence recoveries were effected from him. We, therefore, do not find any solid reasons to disbelieve the prosecution evidence in that behalf."
8. After hearing the learned counsel for the appellant and examination of the record we find that the documentary evidence produced in defence had not received the attention of the two Courts which it should have in a criminal case like the present one. It should not have been difficult for the High Court to go through these documents because most of them related to the proceedings in the High Court and the copies of the complaints filed elsewhere were made available to the trial Court during the course of hearing.
' The first proceedings to be mentioned are Criminal Miscellaneons No, 352-H of 1989 filed by Muhammad Akhtar Aadil, the father of the appellant, directed against the Deputy Superintendent of Police, City Sialkot, S.H.O.. Police Station, Kotwali, Sialkot and the State. The grievance was made about the illegal detention by the Police of Muhammad Aamir son of Abdul Ariz. A bailiff was deputed by the High Court to recover and produce the detenu. The report of the bailiff dated 6-6- 1989 submitted to the Court in that case was as hereunder:-- "Rashid Khan Inspector/S.H.O. Respondent No,2 informed that he called the alleged detenu through his father on 2-6-1989 for inquiry of case F.I.R. No,150/89 registered under Article 14, Order 6 of Hudood Ordinance, 1979 and after interrogation he was allowed to go home. He was again called on 3-6-1989 and after interrogation he was set free. The alleged detenu again came today i.e, 4-6- 1989 at 8-00 p.m. And sat in the Reporting Room while he was busy in conducting investigation of this very case sitting in his own office. During investigation nothing had come out against the alleged detenu, therefore, he was not arrested.
4. I checked the Roznamcha and F.I.Rs, Register and found nothing against the alleged detenu.
Since the alleged detenu was not under arrest I took him in my custody and permitted him to go with the petitioner on an undertaking in writing to produce him in this Hon'ble Court today.
5. It is pertinent to mention here that while I was about to leave the police station the alleged detenu pointed out that his Water Cooler, clothes and utensils were lying in the Havalat. I asked the S.H.O. To hand over the articles to the alleged detenu but he refused to do so with the words '{{URDU TEXT}} ' When the matter was taken up by the Court on 6-6-1989 Muhammad Rashid, Inspector Police, stated that the detenu was required in the case of theft of a car allegedly made by someone else.
Again, the same Inspector on 10-64989 made the statement that because another person (Sarfraz) was known to the detenu, therefore, he wanted to interrogate the detenu. On 18-6-1989 the investigation of the case was said to have been transferred to the C.I.A., Sialkot and the Court without making any further observation filed the case.
9. On 4-6-1989, F.I.R. (No,127) was recorded at the instance of Muhammad Anwar against the appellant Arshad Zubair under section 506, P.P.C., at Police Station Nekapura, District Sialkot. In this all the witnesses cited expressed ignorance about the occurrence resulting in the acquittal of the appellant.
10. The father of the appellant Akhtar Aadil institued a complaint under section 330/343/365-A, P.P.C. And under section 17, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 in which Abdur Rauf Dogar, D.S.P. City Circle Sialkut, Muhammad Rashid Khan, Inspector/S.H.O.
Kotwalai Sialkut, Salamat, AS1 Police Station Kotwali, Sialkot and Muhammad Sadiq Head Constable Police Station Kotwali, Sialkot were made the accused. The complaint was filed in August, 1989 and the Additional Sessions Judge, Sialkot on 2-10-1989 passed the following order:-- "Present: ' Complainant in person.
' After perusing the complaint, documents attached therewith and the preliminary evidence, I find that a prima facie case under section 330/343/365-A, P.P.C. Read with section 17, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 is made out against the respondents. I, therefore, summon the respondents to face trial under the said charges, for 24-10-1989."
11. Akhtar Aadil, the father of the appellant and two others were arrested in F.I.R. No,286 dated 10-9- 1989 under sections 07/353/332/148/149/382/188, P.P.C. They moved an application for bail after arrest before the Magistrate who passed the following order on 26-9-1989:-- "All the abovesaid 3 petitioners have moved this Court for bail after arrest in case F.I.R. No, 286 dated 10-9-1989 Police Station Kotwali Sialkot. All the 3 applications arise out of one and same F.I.R.
They are being disposed of by this single order.
' Record of the case has been perused. None of the petitioners was named in the F.I.R. However, they have been implicated in the case by some witnesses who were examined by the Police under section 161, Cr.P.C. Even the statements under section 161, Cr.P.C. Disclose only that the petitioners were members of a procession which was carried out in breach of section 144, Cr.P.C. At the most the occurrence falls Within the ambit of section 188, P.P.C. Which is punishable only for a period of one month.
' Accordingly all the 3 petitioners are admitted to bail in the amount of Rs,10,000 with one surety in the like amount till the disposal of this case."
' In the background of this order Writ Petition No,6248 of 1989 was filed in the High Court seeking registration of the case against Manzoor Ahmad ASI, Sabir ASI Police Station, Kotwali who allegedly during the course of the arrest deprived the father of the petitioner of gold diamond ring, gold locket and cash. The High Court disposed of this petition on 17-1-1990 with the following order:-- "Report/parawise comments have been received and perused. Learned Assistant Advocate- General has pointed out that according to the report/parawise comments, the petitioner neither approached nor made an application to the concerned police officials. I have noticed that presently the case is being investigated by the DSP, Sialkot. In these circumstances the petitioner may approach the DSP, Sialkot for the redress of his grievance. With this observation, the petition is disposed of."
12. Akhtar Aadil, the father of the appellant filed a complaint in the Court of Special Judge Anti- Corruption under section 166/167/218/34, P.P.C. Against Muhammad Sohail/Sohail Ahmad, Sub- Inspector, Altaf Hussain, A.S.I. And Muhammad Akram, A.S.I. Police Station Nekapura Sialkot. The Special Judge, Anti-Corrpution on 25-9-1990 found prima facie a case against the three and summoned them to stand trial under section 218/166/220/167, P.P.C.
' Another complaint was filed before the Special Judge Anti-Corruption against Muhammad Tasneem Ghani, S.I. Police Station Kotwali in which it was alleged that he was trying to falsely implicate Akhtar Aadil in a case through an accused Miraji Din.
13. Writ Petition No, 2884 of 1990 was filed by Aziz Ahmad against S.H.O. Police Station Rangpura, District Sialkot, DSP City, Sialkot and Secretary Interior Ministry, complaining of the abduction of his other son and non-registration of the case with regard to him. The recovery of the son was sought.
It was in respect of illegal detention by the Police of his other son that Criminal Miscellaneous 352-H of 1989 had been moved in 1989 by the father of the appellant. This petition was disposed of on 16- 5-1990 by giving a direction for the registration of the case and the High Court made the following observations with regard to the conduct of the DSP City, Sialkot in respect of the proceedings:-- "The respondent No,2 is cleary guilty of making a false statement but on the specific assurance of the learned Advocate-General that he will be dealt properly this Court is not issuing him notice for contempt."
14. The subject-matter of complaint against Muhammad Tasneem Ghani just referred to in paragraph 12 was made the basis for filing Writ Petition No,4349/1990 against the DSP City, Sialkot, DSP Saddar, Sialkot, and Tasneem Ghani S.H.O. Police Station Kotwali, Sialkot. The prayer made was as hereunder:-- "Under the circumstances, it is therefore, respectfully prayed that the statement put in the mouth of the accused Miraj Din s/o Shah Din by the police officers against the petitioner in the F.I.R. No, 148/1990 dated 30-5-1990, registered at Police Station Kotwali, Sialkot, be declared due to personal grudge and prejudice and creation of harassment by false involvement in different cases, intended by the respondents, may kindly be declared as illegal, ultra vires, against the provisions of law and such malicious acts are being continued and insisted upon by the respondents without any lawful authority and jurisdcition.
' It is further prayed that meanwhile the respondents may very graciously be restrained from creating any further harrassm ent to the petitioner, his son and other family members, by involving them in the proposed certain cases."
' This petition was disposed of by the High Court by order dated 23-6-1990 directing the Police to act strictly in accordance with law.
15. Writ Petition No, 5393 of 1990 was filed on 31-7-1990 against the District Magistrate, Sialkot, DSP Sadar, Sialkot and S.H.O. Police Station Naikapura, District Sialkot about harassment, illegal detention and fabrication of cases against the father of the appellant. The Court disposed it of on 5-8-1990 giving direction and restraining the respondents from committing the excess of law.
16. On 19-8-1990 Writ Petition No, 5794 of 1990 was filed in the High Court against Mr. Aamir Ijaz Akbar MIC, Sarwar Gondal S.H.O. P.S. Nekapura, Sialkot, Sohail SI P.S. Nekapura Sialkot, Tasneem Ghani S.H.O. P.S. Kotwali, Sialkot and Incharge CIA, Sialkot. As against the Magistrate (P.W.2) the following allegations were made:- "That the respondent No,1 came alongwith the other Magistrates on 17-8-1990 after `Juma prayer' and he threatened the petitioner to withdraw the complaints pending against the respondents Nos.2, 3 and 4, otherwise he shall be involved in heinous offences, to which the petitioner refused and the respondent No,1 became furious and repeated the threats as well as publicly insulted and humiliated him.
' That the petitioner has become a victim in the hands of the respondents simply for the reasons that he is insisting upon to follow the complaints filed against the respondents Nos. 2, 3 and 4 and he is not ready and willing to withdraw the same."
' This petition was disposed of by the High Court on 20-8-1990 with the following order:- "It is prayed in this Constitutional Petition that a direction be issued to respondents Nos.1 to 5 restraining them from implicating the petitioner in false cases. It is needless to observe that respondents Nos.1 to 5 shall act according to law. With this observation this petition stands disposed of."
' About these proceedings Aamir Ijaz Akbar MIC (P.W.2) stated as hereunder:--- "I am aware that a writ petition was filed by Akhtar Aadil aforesaid in the Lahore High Court in which I was one of the respondents. I have received the final order of the Hon'ble High Court Lahore passed in that writ petition, but I am not sure whether the copy of the writ petition was also attached with that order or not. Exh.DA shown to me by the learned counsel for the accused is the same which I received from the Lahore High Court. This order is dated 20-8-1990."
17. A survey of the antecedent Court proceedings pending between the appellant's family and associates and the Police Officers of the Sialkot District shows that deep feelings of animosity prevailed. In this background one would be justified in not expecting the appellant and his family to be storing incriminating material in their own house for the police party to recover at any time.
18. So far as the requirements of section 103, Cr.P.C. Are concerned, the two Courts dealing with the case have omitted to take note of section 105, Cr.P.C. Found in the same Chapter in which section 103, Cr.P.C. Exists. It provides "any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search-warrant". Mr. Aamir Ijaz Akbar MIC (P.W.2) was the Illaqa Magistrate. He was competent to issue search warrant. He had not issued it himself. He had undertaken to get the search conducted in his own presence. This search was clearly under Chapter VII of the Criminal Procedure Code to which section 103, Cr.P.C. Applies. The two Courts were in error in taking the view that section 103, I Cr.P.C. Was not strictly applicable to the recovery.
19. Mr. Aamir Ijaz Akbar, MIC (P.W.2) stated about the recovery as hereunder:-- "We were still outside the house of Akhtar Aadil when Arshad Zubair accused present in Court came out of the house of Akhtar Aadil with a bundle in his hand. Tasneem Ghani and Zulfiqar aforesaid apprehended Arshad Zubair accused on my directions. I opened the bundle (Potli) held by the accused and found Kalashnikov P1 and magazine P2 containing 20 live cartridges, 60 spare live cartridges and four packets containing Heroin one k.g. Each."
20. Another witness of the same raiding party Shaukat AU. S.I., (P.W.4), stated as hereunder:- "Aamir Ijaz MIC (P.W.), Abdul Aziz, DSP and Tasnim Ghani Cheema P.Ws. Entered the house of Akhtar Aadil while the remaining members including me were present in the lane, when Arshad Zubair accused came out of the house in a running condition having a Ghatthri in his hand. The members of the party who had already entered the house came out following Arshad Zubair accused and the accused was apprehended in the lane near the house of one Abdur Rashid."
21. The discrepancy between the two statements is obvious and it cannot be said that the recovery had not taken place during the course of the search of the house so as to make section 103 inapplicable to the proceedings.
22. Section 103, Cr.P.C. Requires that officer or the other person about to make the search should 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. Mr. Aamir Ijaz Akbar had failed to perform his statutory duty and had unjustifiably passed on the task to Shaukat Ali S.H.O. He could not remain content with the reply given by Shaukat All for not satisfying that part of the requirement of the law.
23. Not only the legal requirements remain unsatisfied for making the recovery credible, all the witnesses in spite of being Magistrate and being Police Officers were highly inimical and biased on account of their previous involvement in the proceedings and their testimony would not independently satisfy any judicial forum for recording the conviction. It was necessary that Mr. Aamir Ijaz Akbar and Tasneem Ghani should not have participated in the proceedings and should have informed the Deputy Commissioner of their involvement against the appellant to get themselves -substituted by more unconcerned officers. In any case, they should have enlisted public witnesses from the locality under the command of their legal authority for satisfying the requirements of law and for ensuring the fairness of the proceedings. We are not satisfied with the prosecution case with regard to the recoveries.
24. The appeal is accepted. The conviction and sentence is set aside. The convict is acquitted and discharged of the bail bonds. He be released forthwith if not required in any other case.
25. A copy of this judgment shall be sent in particular to Mr. Aamir Ijaz Akbar the then MIC wherever he happens to be posted.