1. ' SAIYED SAEED ASHHAD, J.--- This bail application has been moved on behalf of the applicant- accused Muhammad Mubarak against whom an F.I.R. Under section 13-D of the Arms Ordinance was lodged by A.S.-I. Muhammad Ashraf Gujjar of Police Station P.I.B. Colony, Karachi-East, on 8-2- 1997 at 4-40 p.m.
2. ' The brief facts of the case are that A.S.-I. Muhammad Ashraf Gujjar posted at C.I.A. Centre left for patrol duty alongwith the other members and on spy information he proceeded to Sabzi Mandi where he apprehended a person whose personal search resulted in the recovery of a .32 bore revolver and three live bullets from the right side fold of his Shalwar in the presence of witnesses Abdul Majeed son of Abdul Rehman and P.C. Muhammad Taj. The person disclosed his name as Muhammad Mubarak, the accused above-named and since he could not produce a valid arms licence the same was seized under the Mashirnama prepared on the spot and he was booked under section 13-D of the Arms Ordinance.
3. ' Bail application moved in the trial Court was rejected on 7-3-1997, hence the above bail application.
4. ' Arguments of Mr. Ashraf Hussain, Advocate on behalf of the applicant-accused and Mr. Muhammad Saleem, A.A.-G. Were heard on 2-4-1997 when the matter was reserved for announcement of order. Mr. Ashraf Hussain, the learned Advocate for the applicant-accused submitted that the alleged recovery of the revolver from the possession of the accused had not been witnessed by any of the independent persons, who might have been present in the vicinity of the place of the incident when the alleged search and recovery was made; that there is no material to suggest that the revolver after being recovered was sealed by the police so as to subsequently establish the identity of the revolver allegedly recovered inasmuch as there is no mention of any distinctive features or marks of identification on the revolver for the purpose of establishing and verifying at the time of trial; that the revolver which would be produced in Court was allegedly recovered from the personal search of the accused; and that the accused has been falsely implicated.
5. In this case, the personal search and the recovery is claimed to have been witnessed by an independent Mashir namely Abdul Majeed son of Abdur Rehman. However, there is nothing on record so as to prove from where the said Abdul Majeed was called by A.S.-I. Muhammad Sharf. No address of the independent Mashir Abdul Majeed has been mentioned in the Mashirnama of arrest of the accused and recovery of the revolver. Furthermore, law requires calling of two independent and reliable Mashirs and it is not left to the discretion of the seizing Officer and the requirement of law cannot be said to have been complied with by production of one independent and reliable Mashir.
6. ' Mr. Muhammad Saleem, learned A.A.-G., on the other hand submitted that the contention advanced by the learned Advocate for the accused did not merit consideration at the stage of the bail as they involved thorough examination and appraisal of the evidence of the prosecution witnesses, which could not be undertaken at the stage of bail and further that there was no provision in the Cr.P.C. Or under any law for the time being in force, which required the presence of two independent witnesses of the vicinity where personal search or body search was to be effected and lastly; that a Division Bench of this Court headed by the honourable Chief Justice by its order, dated 1-1-1997 in Criminal Bail Application No,2206 of 1996 has observed that the provisions of section 103, Cr.P.C. Would be applicable only when a Police Officer is to conduct the search of place and not to a case where body search is effected of a person who was standing on a road or travelling on a motor-cycle. He further submitted that the High Court as well as Supreme Court in several cases expressed the view that the failure of the prosecution to produce independent persons to prove the recoveries made from personal or body search of a person is not a requirement of law and the same can be proved through the evidence of the police witnesses.
7. ' The first point which requires consideration is whether on the prosecution's failure to procure independent person to witness the alleged search and the recovery, the recovery cannot be proved as submitted by the learned Advocate for the accused or that the evidence of the Police Mashirs would be sufficient to prove the prosecution case. This question was considered by our Supreme Court in great detail in the case of Mushtaq Ahmed v. The State reported in PLD 1996 SC 574, wherein the Supreme Court examined all its previous judgments pertaining to the applicability, interpretation and scope of the provisions of section 103, Cr.P.C. One of the principles laid down in the above case of Mushtaq Ahmed is that section 103, Cr.P.C. Relates to a search of a place situated in a locality and not to search of person. Another principle propounded is that there is a material distinction between a case in which the offence charged with is the recovery of the article itself, like recovery of an unlicensed K.K. And a case in which the article recovered e.g. a crime weapon to be used as a corroborative piece of evidence. In the former case if the witnesses to the recovery were police personnel, though it was possible to have the two Mashirs from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant conviction, whereas in the latter case, if other pieces of evidence on record are free from doubt, the testimony of the police personnel if otherwise free from any legal infirmity may be accepted. From the above two principles propounded by the Supreme Court, there is no room for doubt that provision of section 103, Cr.P.C. Do not relate to the search of a person and as such requirement of the search being witnessed by two independent witnesses of the locality/vicinity cannot be insisted upon, but, at the same time if the search relates to a recovery of an article which in itself amounts to an offence or a crime such as, recovery of an unlicensed arm or narcotics substance, then in such a case conviction could not be warranted merely on the basis of the evidence of Police Mashirs and the Court should insist on the production of independent Mashirs. In other words, the second principle laid down by the Supreme Court, notwithstanding the fact that the application of section 103, Cr.P.C. Has been excluded, necessarily requires that personal or bodily searches should also be witnessed by the persons other than Police Officers. It, therefore, follows that Police Officer who intends to make body or personal search of a person apprehended on suspicion of being in possession of some contraband item, has to call or summon, for the purpose of the intended search, the persons present in or around the vicinity of the place of search to witness the search.
8. ' In the case of Yameen Kumhar v. The State reported in PLD 1990 Kar. 275, a Division Bench of this Court while holding that the non-compliance of section 103, Cr.P.C. In certain circumstances would not render search and recovery illegal observed that the application of the principles of section 103, Cr.P.C. Could not be restricted to proceedings under Chapter VII of Cr.P.C. Only and would apply to an open place, open area, a playground, field or garden from where recovery can be made for which search is conducted and it will be appropriate to reproduce the relevant portion of the judgment which is as under:-- "The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a close place, it can be an open place, open area, a playground, field or garden from where recovery can be made for which search is conducted. Although in strict sense the provisions of section 103, are restricted to searches under Chapter VII of Cr.P.C. It has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in criminal jurisprudence of Pakistan and so universally accepted that in all criminal cases two Mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the Mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability, independence and impartiality. If the recovery is to be made on public thoroughfare, a bus stand or similar public place the witnesses picked up by the police from the road can be proper witnesses of recovery depending upon the facts and circumstances of the case. However, in order to ensure proper investigation and clear proof preference should be given to the witnesses of the locality particularly witnesses who are respectable. Witnesses procured by the police though respectable lose credibility. Where witnesses are not of the locality the Court should cautiously examine their statements."
9. The observations made in the case of Yameen Kumhar (supra), are consistent and in accord with the principle laid down by the Supreme Court in the case of Mushtaq Ahmed v. The State PLD 1996 SC 574 and they were also approved by the Supreme Court in the case of Yar Muhammad and others v. The State 1992 SCM R 96, wherein the Supreme Court held that if it was not possible to obtain Mashirs of the locality then the prosecution might pick up some other persons to act as such Mashir. From the above it can be visualised that great emphasis has been laid on the impartiality, independence and reliability of the Mashirs to prove the search and recovery, which is, necessarily, required to prove a recovery of any incriminating article, which in itself constitutes an offence or a crime. For the above reasons, the order, dated 1-1-1997 referred to by the learned A.A.- G. Is -found to be not applicable to the facts of this case.
10. ' Coming to the next ground/objection raised by the learned A.A.-G., it is to be observed that even for the purpose of deciding a bail application, the Court is required to examine and appraise the prosecution evidence with a view to ascertain not only the facts of the prosecution case but also to make out a tentative assessm ent of the possibility of the offence having taken place as claimed by the prosecution and the question of prima facie involvement of the accused, especially in cases which are punishable with death, imprisonment for life or 10 years so as to determine whether the case falls within the prohibition contained in section 497, Cr.P.C. Or that the case requires further inquiry for prima facie bringing the case within the prohibition contained in section 497, Cr.P.C. So as to disentitle the accused to the benefit of bail. In the case of Khalid Javed v. The State reported in PLD 1978 SC 256, the Supreme Court observed that decision on bail application involves a pre- judgment on evidence and made a distinction between tentative sifting of evidence from elaborate sifting and further held that tentative sifting was permissible at the bail stage. In the case of Muhammad Haneef v. Manzoor and others reported in 1982 SCM R 153, the Supreme Court observed that question of bail could not be in vacuum and the Court had to look at the material available when bail is applied for. In the case of Muhammad Rashid v. The State reported in 1979 SCM R 92, the Supreme Court held that the Court at the stage of bail could examine the statements recorded by police and F.I.R. To inquire into the question whether case of vicarious liability made out subject to rule of caution laid down in Manzoor v. The State PLD 1972 SC 81. A similar view was expressed by the Supreme Court in the case of Abdul Razzaq Monib v. The State reported in 1988 SCM R 653. In view of the above, the contention of the learned A.A.-G. That the question as to whether the police party should have procured the attendance of the independent witnesses from the vicinity or whether the search had not been witnessed by independent persons and solely rests on the testimony of police witnesses and whether the provisions of section 103, Cr.P.C. Would be applicable to personal search could not be considered at this stage is without any substance and the Court in deciding the bail application has to take into consideration the above questions.
11. ' With regard to the contention of the learned A.A.-G. That if there is any fault or shortcoming in the search made by the police party or in the investigation then the benefit of the same would be given to the accused at the E time of final disposal of the case after the entire prosecution evidence is examined and the Court comes to the conclusion that evidence adduced by the prosecution could not be found satisfactory, plausible beyond any doubt, etc. But the benefit of any defect, shortcoming or fault in the prosecution case could not be given to the accused at the stage of bail it is to be observed that the same is without any substance in view of the principle laid down by the Supreme Court in the case of Aamir v. The State reported in PLD 1972 SC 277. In this case, the Supreme Court expressed the view that even for the purposes of bail law was not to be stretched in favour of the prosecution and if any benefit of doubt arose then it was to be given to the accused.
12. ' The next ground urged on behalf of the accused was that from the material on record it could not be held that the alleged revolver after being recovered from the accused was sealed either on the spot or in the police station in the presence of the witnesses, who allegedly had witnessed the said recovery and that in view of the above the possibility of the prosecution not producing the revolver allegedly recovered from the personal search of the accused during the trial but producing any other revolver of the nature allegedly recovered to substantiate its case cannot be ruled out. It is the case of the accused that neither the accused was searched nor the alleged revolver was recovered from his possession and the prosecution has instituted a false and fabricated case against him and for this purpose neither the alleged revolver was sealed, as there was none, and further that no distinctive features or identification marks were mentioned in the Mashirnama so as to make it identifiable and a separate revolver from other revolver of the same nature. The contention advanced by the learned Advocate for the accused cannot be said to be without substance and on failure of the prosecution to seal the alleged recovered revolver in the absence of any distinctive features and identification marks, the question as to how the revolver in possession of the prosecution would be established to be the revolver allegedly recovered from the accused would acquire great importance and the prosecution may find it difficult to explain satisfactorily. Reliance for the above is placed on the case of Haji Mir Aftab reported in PLD 1981 Pesh.
23. If on account of non-sealing of the crime article, the corroborative value of the recovery was doubted then in a case where the incriminating recovery is in itself an offence/crime, the consequences of non-sealing would be greater.
13. It may also be pointed out that the bail is not to be refused to an accused person by way of punishment and the prosecution is required to show the existence of reasonable grounds and satisfactory evidence in support of the offence alleged against an accused and if the prosecution fails to establish the same then the matter becomes one for further enquiry into the guilt of the accused and bail in such circumstances, should not be withheld. Reliance for the above is placed on the case of Abdul Malik v. The State reported in PLD 1968 SC 349. In the case of Manzoor and 4 others v. The State, supra, the Supreme Court strongly expressed that the bail is not to be withheld as a punishment and it will be appropriate to reproduce hereunder the relevant portion from the above order:-- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent man for his injustified incarceration at any stage of the case albeit his acquittal in the long run."
14. The case of the accused is that of further enquiry inasmuch as in view of the material and the evidence available with the prosecution there are reasonable grounds to believe that the accused-applicant is not prima facie guilty of the above offence or of any other offence punishable with imprisonment for life or ten years so as to bring his case within the mischief of section 497, Cr.P.C. And in such a situation the accused is entitled to claim the benefit of bail as per principle laid down by the Supreme Court in the case of Najeeb Gul v. Khalid Khan reported in 1989 SCM R 899.
15. ' From the above discussions, it can be said that a case is made out for granting bail to the accused and accordingly, bail is allowed to the accused on his executing P.R. Bond and a surety bond in the sum of Rs,75,000 (Rupees seventy-five thousand) to the satisfaction of the Nazir of this Court.