1. ' WALI MUHAMMAD KHAN, J---Muhammad Khan, through Criminal Petitions Nos. 28 (S) and 29 (S) of 1993, calls in question the judgment dated 28-2-1993 passed by a learned Single Judge of the Federal Shariat Court, whereby Criminal Appeals Nos. 373/L and 346/L of 1992 filed by him against his conviction and sentence under Articles 3 and 4 of the Prohibition (Enforcement of Hacld) Order, 1979, in case F.I.R No, 93 dated 7-3-1990 of Police Station Bhowana and F.I.R No, 97 dated 13-3-1990 of P.S. Bhowana, passed by Additional Sessions Judge, Chiniot, were dismissed.
2. ' The facts of the case, briefly stated, are that Ghulam Haider S.I./P.W.3 was present at Adda Rehmowana in connection with the partol duty and checking dealers of intoxicants, on 13-3-1990, when at about 5-45 p.m an informer told him that Muhammad Khan petitioner was selling heroin in Village Nilianawala Chak No, 197/JB upon which he organized a raiding party and was able to apprehend Muhammad Khan on the western corner of the village with the help of the raiding party and succeeded in recovering one 7MM rifle with two live cartridges from his possession and heroin weighing 110 grams wrapped in a polythene envelope from his personal search and took them into possession. He separated 10 grams heroin and made it into a separate parcel. He prepared a complaint and sent it for the registration of the case alongwith the recovered articles on the basis whereof case F.I.R No,93 was registered by Zafar Iqbal ASI/P.W.2. During the investigation of the case and while the petitioner was in Police custody, he led to the recovery of ten kilograms of Charas and five kilograms of opium from his residential house which were taken into possession and ten grams from each item were sealed into a separate parcel for chemical examination. Separate complaint was sent to the Police Station for the registration of the case on the basis whereof case F.I.R No,97 dated 13-3-1990 was duly registered. On the completion of the usual investigation separate challans were submitted against the petitioner in the Court of learned Additional Sessions Judge, Chiniot, who, after framing of the charge-sheet, recording of the evidence and the statemet of the accused under section 342, Cr.P.C. And under section 340(2), Cr.P.C. Found him guilty for the offences charged with. In case F.I.R No,93, he was convicted and sentenced to five years' R.I. Plus a fine of Rs,5,000 or in default thereof further one year R.I. With whipping numbering twenty stripes vide judgment dated 8-9-1992. In case F.I.R No,97, he was convicted and sentenced to seven years' R.I. Plus a fine of Rs, 10,000 or in default two years' R.I. And also whipping numbering thirty stripes vide judgment dated 17-8-1992. Separate appeals were filed by him before the Federal Shariat Court which were disposed of through a common judgment which is impugned herein.
3. ' We have heard Malik Rab Nawaz Noon, Advocate, for the petitioner, and have perused the record of the case.
4. ' The learned counsel for the petitioner strenuously argued that no effort was made to associate independent witnesses from the locality to witness the recovery and that in both the cases only Police Officials are witnesses to the recovery memos and have appeared in support of the prosecution case. He submitted that even if in the first recovery the Police had no chance to secure the services of bystanders, in the second recovery which was effected after the disclosure by the petitioner during the Police custody, the services of two respectable persons of the locality to witness the recovery from the house of the petitioner at his pointation was a must according to the provision of section 103, Cr.P.C. In support of his argument, he cited the judgment of the Federal Shariat Court in case Abdul Hameed v. The State 1987 PCr.LJ 1707 and another judgment of the said Court in Muhammad Shall v. The State PLD 1987 FSC 16.
5. ' In the case of Abdul Hameed cited above, it was held that provision of section 103, Cr.P.0 is designed to safegurad against the possible plantation of property and consequent false implication of an accused person and therefore, Police Officers at the time of search must be accompanied by two persons other than the Police Officials and that grave doubt to be cast if this mandatory provision is breached. In the other case of Muhammad Shafi, the same dictum is, more or less, repeated but with an exception that there may be cases where a Police Officer on account of the locality or time or the risk of destruction of evidence may not find it feasible to engage himself in search of witnesses before actual carrying out of the search and in such circumstances the Police Officer can rightly be relieved of the obligation which section 103, Cr.P.C. Imposes on him, but such circumstances must clearly be brought on record so that the Court may judge for itself whether departure from section 103, Cr.P.C. Was justified in the circumstances. It was also observed that in the absence of enmity the deposition of a Police Officer is as good evidence as that of any other person and can be relied upon.
6. ' The provision of section 103, Cr. P.C. Came up for consideration before this Court in its capacity as Shariat Appellate Bench as well as Supreme Court in serveral cases. In the case of Malik Aman v. The State (1986 SCMR 17) (Shariat Appellate Bench) it was held in a case under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, that testimony of police official as solitary witness to the recovery could not be disbelieved merely because of his being a police official. In an another case Khudai Rahim v. The State (1991 SCMR 461), it was observed that in an emergent situation police could not have possibly associated witnesses from the public in recovery.In the case of Safdar Abbas v. The State PLD 1987 SC 467, though a case under section 302, P.P.C., the testimony of police officer against whom there is no allegation of dishonest investigation apparent on record was held to be as good testimony of recovery as of any independent attesting witness.
7. Similar is . The dictum in case Taslim Khan v. The State (PLD 1990 Supreme Court 1088) (Shariat Appellate Bench) wherein it was declared that if in spite of the best efforts by police they are unable to procure public witnesses to witness the recovery, on that score alone the testimony of police officials cannot be discarded unless mala fide or enmity on their part in the false implication of the case are established.
8. From the perusal of the judgment cited above, it is manifest that the mandatory provision of section 103, Cr. P.C.
9. Requires the association of independent witnesses of the locality to witness the recovery and later on testifying to the same effect before the trial Court. The idea behind the insertion of this provision in the statute is to eliminate chances of false implication, and there can be no cavil with the legal proposition that as far as practicable the said provision must be strictly followed. There can, however, be no denying the fact that these days disinterested, honest and respectable people normally avoid to involve themselves in such affairs and thereby incur the wrath and enmity of the persons whose premises are being searched and in the event of recovery, then to depose against them and assist the Court in their conviction for the crime, in most of the cases heinous ones. In case the police is able to secure the services of persons of the locality who are not strong enough to resist the temptation by the offenders, ultimately the whole exercise undertaken by the investigating agency becomes futile if they make obliging concession in Court in favour of the criminal, of course, not intentionally but on account of fear or pressure. It than therefore, been experienced that unless the police is certain about the intergrity of the witnesses and are sure that they shall resist all temptation till the final conclusion of the trial by Court, they deem it proper to rest contended with the police officials witnessing the recovery and attesting the recovery memos. Taking the overall prevailing circumstances into consideration, it has been the view of this Court that police officials are as good witnesses as any person from the public provided no animosity is alleged and proved against them and the plantation of the articles in the particular circumstances of the case is not possible.
10. ' In the case in hand, the earlier recovery was spontaneous as Ghulam Haider SI/P.W.3 alongwith police party, while on Gasht were informed that the petitioner was selling heroin and he made a search of him and effected the recovery. Obviously, it was not possible for him to get the recovery memo. Attested by the bystanders. As regards the recovery from the house at the pointation of the petitioner, suffice it to say, that the possibility of planting the huge quantity of Charas and opium inside the house by the police was not possible nor could the police, or anybody else, have the knowledge of its concealment. The non-production of disinterested B witnesses in the second recovery, therefore, does not adversely affect the recovery itself.
11. Resultantly, we do not find any legal flaw in the concurrent finding of the two Courts below and by refusing leave to appeal, dismiss both the petitions.