Appellants Badshah Khan son of Ghulam Nabi and Muhammad Irshad son of Muhammad Abbas have filed this appeal against the judgment, dated 17-10-1995, passed by the learned Vth, Additional Sessions Judge, South Karachi, in Sessions Case No.487 of 1992 whereby both the appellants have, been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and both of them sentenced to 5 years' R.I. With 10 stripes each. They have also been fined Rs.25,000 each and in default to suffer further R.I. For 6 months. Benefit of section 382-B, Cr.P.C. Has been extended to both the appellants. Arguments of Mr. Sardar Khan, learned counsel for the appellants and Mr. Agha Zafir Ali, learned counsel for the State, were heard and, on conclusion of the arguments on 13-11-1995, by a short order, this appeal was allowed. Detailed reasons for the short order are contained in this judgment.
2. Brief facts of the prosecution case are given in para. 2 of the impugned, judgment which is reproduced here: --- "The brief facts are that on 19-11-1992, A.S.1. Muhammad Afzal was on patrolling duty and he received spy information that both accused are selling the heroin powder near People Ground Street No.5, Deryabad, Karachi. A.S.I. With police party reached on the spot and on seeing the police accused Badshah Khan- ran away leaving one packet of heroin powder containing about 250 grams of heroin while accused Irshad was arrested and from his personal search one pistol, two loaded magazine and six bullets were recovered and one plastic bag containing 100 grams of heroin powder was also secured. Police arrested the present accused and prepared Mashirnama of arrest and recovery, and also A.S.I. Sent his statement under section 154 for F.I.R. And F.I.R. Was lodged. Police investigated the matter and sent the heroin to Chemical Examiner. After necessary investigation challan was submitted in the Court."
3. F.I.R. No.284 of 1992 was formally recorded under Article 3/4 of the Prohibition(Enforcement of Hadd) Order, 1979, at Police Station Baghdadi. After completion of the investigation by P.W. 3 A.S.I.
Muhammad Afzal, who was also the seizing officer as well as the complainant, the accused were challaned. During the trial, 4 witnesses were examined by the prosecution, namely, P. W.1 Head Constable Waqar Haider (a recovery Mashir); P. W.2 S. I. Inam Muhammad, who recorded the formal F.I.R.; P.W.3 A.S.I. Muhammad Afzal (complainant as well as the Investigating Officer) and P.W.4 Amin Ahmad, a private Mashir of recovery. Statements of both the accused were recorded under section 342, Cr.PrC. And both the accused also gave their statements on oath and were cross-examined on behalf of the prosecution. Three witnesses were also examined in defence, namely, D. W.1 Mst. Naseem, mother of accused Muhammad Irshad; D.W. 2 and D.W.3 Abdul Sattar and Nawab Khan. .
The occurrence is alleged to have taken place at 5-30 on 19-11-1992 whereas the complaint was made by A.S.I. Muhammad Afzal at 6-00 a.m. At P.S. Baghdadi. According to Mst. Naseem, mother of Muhammad Irshad, she had sent an application to the L-G that on the day of incident at mid- night (i.e. About 5 hours earlier than the time of the occurrence) accused Muhammad Irshad and other family members were in the house when A.S.I. Muhammad Afzal alongwith police party came and beat up her son Muhammad Irshad and inquired about accused Badhsha Khan, Muhammad Irshad being the driver of Badshah Khan. Thereafter, according to Mst. Naseem, the police took Muhammad Irshad to police station and that she went to the house of Badshah Khan but Badshah Khan was not present in his house. In cross-examination, she denied that she was giving evidence to save her son. She also denied that her son was in the habit of taking heroin and was also a seller of heroin. D.W.2 Abdul Sattar and D.W. 3 Nawab Khan gave evidence that they were with Badshah Khan at 3-30 a.m. On the day of incident. If their evidence is accepted, the case against Badshah Khan was false.
4. Learned counsel for the parties had taken me through the entire record. Learned counsel for the appellants raised the following contentions in support of the present appeal:---
(a) Provisions of section 103, Cr.P.C. Had not been complied with.
(b) There was only one independent Mashir namely, P.W.4 Amin Ahmad, but he did not support the prosecution.
(c) Defence version given by the two appellants and three witnesses had not been challenged.
(d) There are infirmities in the prosecution evidence and also contradictions, benefit whereof should have gone to the appellants.
5. On the other hand, Agha Zafir Ali, learned counsel representing the State, argued that police witnesses are as good witnesses as private persons and their evidence should not be ruled out of- consideration only on the ground that they were police officials. It was submitted that A.S.I.
Muhammad Afzal had complied with the provisions of section 103, Cr.P.C. And that there were only minor contradictions in the evidence adduced on behalf of the prosecution. According to learned counsel, the prosecution had been able to establish its case against the two appellants and the present appeal is liable to be dismissed.
6. In this case, spy information had been received by A.S.I. Muhammad Afzal and despite that no effort was made by him to comply with the provisions of section 103, Cr.P.C. No doubt he had taken one private Mashir, namely, PMA Amin Ahmad, but association of one private Mashir does not fulfil the requirements of section 103, Cr.P.C. For the proposition that association of two public witnesses in the recovery proceedings is a requirement of section 103, Cr.P.C. And that association of one public witness does not fulfil such requirement, learned counsel for the appellants referred to a recent decision of the Supreme Court in the case of Muhammad Mansha v. State 1995 SCM R 1414 in which case only one witness from the public was associated in the recovery proceedings. Referring to the association-of only one witness from the public, the Supreme Court observed that "joining one person from the public to witness the recovery will not fulfil the mandatory requirements of section 103, Cr.P.C. And this legal infirmity per se may-vitiate the search proceedings". , Learned counsel for the State argued that the said decision of the Supreme Court related to the search of a place whereas the present case does not relate to recovery from a house or enclosed area but from an open space. The question, whether section 103, Cr.P.C. Is restricted to searches made in a house or enclosed place or the principles 'contained therein are also applicable to other searches made during investigation, was not under consideration before the Supreme Court in the case of Muhammad Mansha v. State. In another decision of the Supreme Court in the case of Mirza Shah v.
State 1992 SCM R 1475 it was observed that section 103, Cr.P.C. Is applicable to searches made by police officers during investigation. In the said judgment, while considering the applicability of section 103, Cr.P.C. To searches made during investigation by a police officer, the Supreme Court observed that the Court will not insist on strict compliance with the provisions of section 103, Cr.P.C.
But will examine other evidence produced by prosecution to prove recovery with care and caution but it was added that the prosecution nevertheless has to explain the non-compliance with the provision of section 103, Cr.P.C. It was further observed by the Supreme Court that section 103, Cr.P.C. Requires the officers making 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 and the object is to ensure -to proper and honest search by the police and to avoid harassment, concoction and manipulation at this stage.
As observed, in the present case spy information had been received by A.S.I. Muhammad Afzal and according to police itself, there was no difficulty in associating two witnesses from the public for recovery proceedings inasmuch as A.S.I. Muhammad Afzal was able to get one private Mashir, namely, P.W. Amin Ahmad. No explanation whatsoever has been given by A.S.I. Muhammad Afzal or any other prosecution witness why two witnesses from the public were not associated in the recovery proceedings. It has already been noted that association of one person from the public in the recovery proceedings does not fulfil the mandatory requirements of section 103, Cr.P.C., which requires two persons from the public to be so associated.
7. Additionally it may be observed that the solitary private Mashir P.W. Amin Ahmad did not support the prosecution version regarding the recovery. Prosecution case had been completed and at the final stage of the case, before the arguments, written application was made on behalf of the prosecution for calling P.W.4 Amin Ahmad as a prosecution witness which application was granted by the trial Court. Signatures of P.W.4 are appended on the Mashirnama of recovery and arrest but he was not mentioned by A.S.I. Muhammad Afzal during his examination-in-chief and, as observed, at the last stage an application in writing was moved for calling Amin Ahmad as a witness. The entire evidence of Amir Ahmad recorded before the trial Court is reproduced here:--- "Examination-in-chief to APP This incident is four years old. It was about 1-30 at night I was going to Fishri when police called me near Machar Colony. Police took me in a house which was at walking distance and entered in a house from wall side and detained - accused Arshad who is present in Court. Police detained accused Arshad and inquired the house of his owner and accused Arshad disclosed that he is residing ahead. Police went there but that house was locked. Police broke the lock and entered in the house and broke almirah and recovered one pistol and one copy in which Rs.500 was lying and keys and also took away one motorcycle. Police also prepared the Mashirnama which was signed by me and I see as Exh.7. Police had not recorded my statement. I then went away. Accused Arshad present in the Court is the same.
Cross by APP It is incorrect that both accused are my friends therefore 1 am deposing falsely. It is incorrect that police detained accused Arshad and heroin was secured from his possession. It is incorrect that co-accused Badshah Khan ran away leaving heroin on the spot. It is incorrect that Exh.7 is in that respect. I am on oath and it is incorrect that due to fear I am deposing falsely.
Cross by D C for both accused.
Exh.7 was not read over but I have signed under the threats of police. "
From a perusal of the evidence of P.W.4 Amin Ahmad, it follows that he has totally denied the prosecution case regarding recovery and has supported defence version that just after mid-night accused Muhammad Irshad was arrested by the police from a house and that no recovery had taken place before him.
8. There is also a discrepancy regarding the weight of .The heroin alleged to have been recovered by the police. According to the prosecution evidence, 100 grams of heroin was recovered from Irshad who was arrested on the spot whereas 250 grams from the bag which was thrown by Badshah Khan. However, according to the Chemical Examiner's report (Exh.6), the weight of one parcel including its contents was 113.500 grams whereas the net weight of the inside powder was '
111.260 grains. Regarding the other parcel, the total weight including the contents, according to the Chemical Examiner's report, was 244 grams and net weight of the powder without the wrapper was 242 grams. This discrepancy has not been explained in the prosecution evidence.
9. The aforesaid facts and reasons, namely, non-compliance of the mandatory requirements of section 103, Cr.P.C.; there being no explanation on record as to why two witnesses from the public were not associated in the recovery proceedings despite spy information having been received earlier; only one witness from the public was associated which does not fulfil the mandatory requirements of two independent witnesses from the public and this solitary witness also did not support the prosecution version stating that no recovery was made in his presence; discrepancy in the weight of two recoveries between the evidence of the police officials and the Chemical Examiner's report and there being no independent corroboration of the evidence of A.S. I.
Muhammad Afzal, who was the seizing officer, complainant as well as the Investigating Officer, in my view, the prosecution had failed to establish its case against the' appellants beyond reasonable doubt.
10. As a result, Criminal Appeal No.54-K of 1995 is allowed, the impugned judgment dated 17-10- 1995 passed by the learned Vth Additional Sessions Judge, South Karachi, is set aside and the two appellants, Badshah Khan and Muhammad Irshad acquitted for the charge.