STATE Versus IQBAL BIBI

MUHAMMAD ILYAS, J. --- This appeal has been filed by the State through the Advocate-General, N.-W.F.P., against judgment, dated the 28th March, 1992, passed by the Resident Magistrate/Magistrate 1st Class, Tarbela Dam, Camp Haripur, with powers under section 30 of the Code of Criminal Procedure, whereby he acquitted the respondent, Mst. Iqbal Bibi,, who had been tried on charges under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, hereinafter referred to as the Prohibition Order.

2. Submission made by learned counsel for the appellant was that it was a fit case for conviction of the respondent at least under Article 4 of the Prohibition Order as the heroin in question was recovered from her possession. According to him, the learned trial Court acquitted her on flimsy grounds.

3. In reply, it was argued by learned counsel for the respondent that the learned trial Court had acquitted the respondent for non-observance of provisions of section 103 of the Code of Criminal Procedure and for certain discrepancies in the evidence led by the prosecution. In his view, the judgment under challenge was unexceptionable.

4. It was not denied by learned counsel for the appellant that provisions of section 103 of the Code of Criminal Procedure were not complied with by the Investigating Officer in the instant case. These provisions read as follows:--

"103.-- (1) Before making a search under this Chapter, the officer or other person about to make it shall 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.

(2) The search shall be made in their presence and a list of all things seized in the course of search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(3) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request.

(4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.

(5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by any order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code."

5. In a case reported as the State v. Rafiullah alias Gul 1992 P Cr. L J 435 (Peshawar) also it was urged that the said provisions had not been observed. The accused was, therefore, acquitted and his acquittal was upheld by Mr. Justice Muhammad Bashir Khan Jehangiri of the Peshawar High Court while dismissing appeal against the judgment by which the acquittal had been ordered. Relying upon certain observations of the Supreme Court, the learned Judge spelt out the object behind the said provisions as below:--

.. 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 P L D 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 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 Investigating Officer. In the present case, the 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."

6. In the case before us, no explanation has been given by the Investigating Officer, namely, Muhammad Zafar, S.I. (P.W.2) for not complying with the requirements of section 103 of the Code of Criminal Procedure. Thus, according to the above-quoted dictum of the Supreme Court. this non-compliance is to be viewed with suspicion. In other words, failure of the Investigating Officer to follow the above provisions makes the search doubtful.

7. There are only two witnesses of the prosecution and both are police officials. We have also noticed material contradictions in their statements. For II instance, it was stated by the said Investigating Officer that the door was open when he and the other witness, Muhammad Sadiq F.C. (P.W.1) entered the house of the respondent, but according to Muhammad Sadiq, the door was closed. Further, it was stated by the Investigating Officer that he did not knock at the door before entering the house but Muhammad Sadiq stated otherwise. In addition, it was deposed by Muhammad Sadiq that thirty Puris of heroin were taken into possession but the Investigating Officer made wavering statements in this regard. During his examination-in-chief, it was said by him that all the thirty Puris were taken into possession by him but in the next breath he stated to the contrary. When cross-examined, he again disclosed that all the thirty Puris were not taken into possession. Moreover, it was denied by the Sub-Inspector that other family members of the accused were residing in the house of the accused but according to Muhammad Sadiq Constable, the mother and the brother of the accused were residing in the same house. These contradictions have created serious doubts regarding the truthfulness of two police witnesses and, therefore, it is not safe to convict the lady (accused) on the basis of their evidence.

8. Resultantly, we feel that the case against the respondent had not been proved beyond the shadow of any reasonable doubt. She was, therefore, rightly I acquitted by the learned trial Court.

9. There is no force in this appeal. It is, accordingly, dismissed.

N.H.Q.%855/FSC Appeal dismissed.