[Sections 102 and 103, Cr.P.C. Sec. 27, Evidence Act/Article 40 of Qanun-e-Shahadat]
General Provisions Relating To Searches
Sec. 102(3). Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched. If such person, is a woman, the direction of section 52 shall be observed.
Section 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.
(4) When any person is searched under section 102, sub-section (3) a list of all things taken in 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 or witness a search under this section, when called upon to do so by any ordering writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code.
Provision of Sec. 103, Cr.P.C. Mandatory.
Guidelines about sec. 103 Cr.P.C. (Recoveries)
(1) That sec. 103 Cr.P.C. relates to a search of a place situate in a locality and not to a search of a person.
(2) That requirement of sec. 103 Cr.P.C. that the officer or the other person who is about to make search of a place under chapter VII of the Cr.P.C. to call upon 2 or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search though is procedural but is of mandatory nature. It is designed to guard against any possible chicanery and concoction;
(3) That in spite of the best efforts by the officer or other person making the search, two or more inhabitants of the locality had not attended or witnessed the search and if there was nothing on record to cast doubt about the bona fide of the officer or the other person, the above search would not be vitiated and the testimony of the officer concerned could be relied upon;
(4) There is marked distinction between a case in which compliance of sec. 103 Cr.P.C. is made and a case in which no effort is made to comply with the requirements of the sec. 103 Cr.P.C. and police personnel are made witnesses of recovery. In the former case failure to produce two respectable witnesses in the Court for justifiable reasons free from any doubt would justify the acceptance of his or their testimony where as in the later case the search would lose its credibility particularly when the testimony of such mashirs is challenged by the defence in cross-examination;
(5) There is also a marked distinction between a case in which the offence charged is the recovery of the article itself, like recovery of a Kalashnikov and a case in which the article recovered e.g. a crime weapon is to be used as a piece of corroborative evidence. In the former case if the witnesses to the recovery were police personnel though it was possible to have two witnesses from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant conviction, where as in the latter case, if other pieces of evidence on record are free from doubt, the testimony of police personnel if otherwise free from any legal infirmity may be accepted;
(6) There is also marked distinction between a case in which a police officer is an eye-witness to the commission of an offence like a murder on a road where he is on duty and a case in which he is an investigating officer and as such becomes a mashir to the recovery of a crime weapon. In the former case his testimony is as good as of any other witness from the public, but in the latter case in the absence of any justifiable reason not to make two or more respectable inhabitants of the locality as witnesses to the recovery, implicit reliance cannot be placed on the recovery if the same is challenged by the defence in the cross-examination;
(7) The question that whether the testimony of a police official as a mashir to the recovery of an offending article is to be accepted or not besides testing on the touchstone of the above legal principles, depends on the facts of each case, the Court will have to discern inter alia, as to whether such witness bore any animus against the accused involved or was he not over-zealous investigating officer/witness. PLJ 1996 S.C. 1323, Mushtaq Ahmed.
Provision of section 103, Cr.P.C. mandatory, but when not complied with the search does not become illegal. However, the non-compliance would be viewed with suspicion unless failure to secure presence of respectable witnesses or to examine them in Court is explained (SC) PLD 1975 SC 607. Muhammad Khan v. Dost Muhammad etc. PLJ 1975 SC 406.
Provisions of Sec. 103, Cr.P.C. are mandatory. Investigating Officer to procure the attendance of independent witnesses. Failure to do so casts doubt on the fatum of recovery. 1987 SCMR 1177. Sultan etc.
Presence of respectables of locality in search u/S. 103, Cr.P.C. is mandatory to witness the recovery. Provision not complied with. Recovery not relied upon. PLJ 1987 FSC 22 Abdul Hameed.
Express and mandatory provision of section 103 PPC cannot be ignored or brushed aside on the whim and caprice of investigating officer except on well-founded grounds and in exceptional cases. 1995 P.Cr.L.J. 455, Muhammad Akram.
Non-compliance with mandatory provision of Sec. 103 Cr.P.C. when the raid had ben planed much earlier and there was ample time to associate respectable persons of locality in the recovery proceedings. House was searched without search warrants. It offends against Article 14 of the Constitution. Held, recovery of Klashnikov from the house of the appellant was false and concocted. (DB) PLJ 1998 Cr.C. (Lah.) 377, Mohsin Atta.
Search of a person & Sec. 103 Cr.P.C. The provisions of sec. 103 Cr.P.C. apply to search of a person. Applicability of Sec. 103 Cr.P.C. cannot be resticted to search of a place and not a person. Sec. 103 Cr.P.C. does apply to search of a person. Applicability of sec. 103 Cr.P.C. is not restricted to any locality, house or a fixed place of abode. PLD 1997 S.C. 408, State v. Bahir etc.
Two members from the public of the locality to be made mashirs to the recovery as it is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was possible to have two recovery witnesses from the public. If however the statement of the police officer indicated that no efforts were made by him to secure two mashirs from the public, the recoveries would be doubtful. PLD 1997 S.C. 408, State v. Bashir etc.
Explanation for non-compliance with section 103 Cr.P.C. is to be given by the prosecution, the failure to comply with the requirement will not make the search illegal. The object is to guard against the possible chicanery and concoction by the police. Therefore, Courts will ordinarily insist on a strict compliance with the requirement and view its non-compliance with suspicion unless an explanation is forth coming for failure to secure the presence of the respectable witnesses or omission to examine them in Court. PLD 1975 S.C. 607, Muhammad Khan v. Dost Muhammad. Also see 1994 P.Cr.LJ 403, State v. Mst. Iqbal Bibi.
Recovery rule laid down u/S. 103 Cr.P.C. is a rule of prudence and not of evidence. Compliance with the said rule depends on the circumstances of each case. 1995 SCMR 1793, Zakir Khan etc.
Applicability of Section 103 Cr.P.C. is restricted to searches made u/Ss. 94 to 105 (Chapter VIII) Cr.P.C.
Prosecution has to explain the non-compliance with the provisions of section 103 Cr.P.C. Sub-section (4) of section 165 Cr.P.C. specifically makes sections 102 and 103 Cr.P.C. applicable to search made by police officer during investigation so far they can be applied in the facts and circumstances of the case. When the facts and circumstances show that the provisions of Sec. 103 Cr.P.C. could be complied with the police officer making the search should not completely ignore it. Where circumstances are such that it is not possible to comply with the provisions of section 103 Cr.P.C. the Court will not insist on its strict compliance but will examine other evidence produced by the prosecution with care and caution. A police officer produced as a witness for prosecution can be relied upon like other prosecution witnesses but as a witness for prosecution can be relied upon like other prosecution witnesses but as he is an investigating officer or attached with the investigation staff, the Courts as a matter of prudence and safe administration of justice, scrutinise the evidence of such witness with care and caution. The evidence of a witness though a policeman may be accepted. However, in case of recovery, this principle is accepted subject to furnishing an explanation by the prosecution for non-compliance with Sec. 102 Cr.P.C. 1992 SCMR 1475, Mirza Shah. Cases referred. PLD 1975 S.C. 607, Muhammad Khan v. Dost Muhammad etc. 1987 SCMR 1177, Sultan etc.; 1987 SCMR-1, Muhammad Afzal; 1991 SCMR 458, Zardad; 1989 SCMR 491, Khan Gul, 1985 SCMR 854, Ballia etc.; 1992 SCMR 96, Yar Muhammad etc.
No explanation for not joining two respectables of locality of the house, while conducting search when the accused in custody had led the I.O., held, the search and consequential recovery of narcotics (Opium 250 grams recovered from his pocket and 5 Kg. seized on his pointation from the brief case in a room of his house). The accused was acquitted by the Federal Shariat Court. The Supreme Court dismissed the appeal from acquittal. PLJ 1997 SC 678, State v. Shankar.
Recoveries u/Ss. 94 to 105 Cr.P.C. and searches can be initiated only on issuance of a search warrant by a Court. When provisions of section 103 Cr.P.C. are not complied with the Court will not insist on its strict compliance but will examine the other evidence with care and caution. Prosecution has however to explain the non-compliance with the provisions of Sec. 103 Cr.P.C. Police Officer should not completely ignore the provisions of Sec. 103 if the facts and circumstances show that it could be applied. When recovery evidence was believed by the two Courts below Supreme Court declined to reapprise such evidence. 1992 SCMR 1475, Mirza Shah.
Kalshnikov recovered at midnight from the shop of the accused. Two respectables of the locality not joined as witnesses, as required u/S. 103 Cr.P.C. applies with full force when search is to be made of a place, when the place to be searched is in an inhabited locality. The purpose is to guard against possible chicanery and concoction by the police. Sec. 103 Cr.P.C. does not apply to a running vehicle but it applies to a fixed place to be searched which is already known. PLJ 1996 S.C. 396, Muhammad Azam.
Provisions of section 103 Cr.P.C. are no doubt mandatory, and it is to guard against possible manipulation. Therefore, it is all the more necessary that the I.O. should have tried to secure the attendance of independent witnesses to attest the recovery of guns at the pointing of the accused/appellants and the failure to do so would cast doubt on the factum of recovery. 1987 SCMR 1177, Sultan etc.
For search of a person section 103, Cr.P.C. is applicable. It is incorrect to contend that section 103, Cr.P.C. is applicable only to search of a place and not person. PLD 1957 SC (Ind.) 30, Sunder Singh v. The State of Utter Perdesh Ref. (DB) PLD 1980 Pesh. 119 Ahad Sher.
Where only police is recovery witness, acceptance of evidence of police may amount to making prosecution itself judge of its own cause. In such cases, it would be difficult to say that such cases would not qualify as cases requiring further inquiry. PLJ 1996 S.C. 396 & PLJ S.C. 1323 referred. (D.B.) PLJ 1997 Cr.C. (Kar.) 673, Kamran.
Recoveries made otherwise than from house search. No provisions of law requires presence of witnesses. Recoveries not supported by mashir because of long practice. Evidence of recovery nevertheless held admissible and acceptable. (DB) 1972 P.Cr.LJ 195. Muhammad Bakhsh etc.
Recovery u/S. 103, Cr.P.C. Respectability of the witness is more important than his being from the locality. Evidence of such witness relied upon. (DB) PLJ 1984 Cr.C. (Kar.) 151. Javid Ahmed.
Witnesses of recovery not residents of locality of recovery of occurrence. Held, law required recoveries to be witnessed by persons belonging to the locality. (DB) 1974 Cr.L.LJ 137 Mumtaz Ahmad.
No respectable person of locality joined to prove recovery of cash from the residence of the appellant. No plausible reason given for non-compliance of mandatory provisions of Sec. 103 Cr.P.C. Held recovery was in complete violation of law. Appellant acquitted. PLJ 1994 Cr.C. (SAC) 248, Asghar Ali etc.
Recovery provisions of Sec. 103 Cr.P.C. not complied with; despite the recoveries having been effected from a busy place surrounded by houses and buildings no independent witness was associated with recovery proceedings nor any record was produced to show that respectable residents of the locality were not willing to join recovery proceedings inspite of the efforts made by the Police in this behalf. Leave to appeal granted and bail allowed. 1997 SCMR 876, Nasrat Ali.
Provisions of Sec. 13 Cr.P.C. apply to cases where police conducts search of the house/place to search an article for which search is to be made and not to a case where anything is to be discovered in consequence of information given by or on pointation of the accused. 1997 SCMR 1000, State v. Shankar.
Search made inside the house in absence of the accused and without associating two respectables of the locality in violation of Sec. 103 Cr.P.C. and also without obtaining search warrants is illegal. Accused acquitted. PLD 1998 Lah. 401, Mohsin Atta.
Running vehicle. Requirement of section 103 Cr.P.C. does not apply to a running vehicle. 1998 SCMR 1148, Kausar Irshad (PLD 1984 SC 278 referred).
Section 103, Cr.P.C. applicable to house search or enclosed places. Not applicable to search of a taxi. PLD 1976 Lah. 144. Rehmat.
Sec. 103, Cr.P.C. is not applicable to personal search. PLJ 1990 FSC 104. Nasir Khan Contra. 1980 P.Cr.LJ 407. Ali Gul. (DB) PLD 1980 Pesh. 119. Ahad Sher. PLD 1957 SC (Ind) 30. Sunder Singh. (DB) 1992 P.Cr.LJ 97. Sikandar.
Recovery, Sec. 103, Cr.P.C. not an absolute requirement that in every case witness from the public must necessarily appear to witness the recovery specially when the search is made on suspicion without previous information. 191 SCMR 461. Khudai Rahim.
Reluctance of public to join as witnesses is a judicially recognised fact. No adverse inference can be drawn against the prosecution because no public witnesses were cited. PLD 1992 Lah. 57, Muhammad Sharif.
No public witness joined in recovery of Klashnikov although easily available. Sentence of 7 years R.I. and fine of Rs. 30,000 set aside. (DB) 1994 P.Cr.LJ 1109, Walayat Hussain.
Recovery of Klashnikov, held, offence u/S. 13-XX-65 Arms Ordinance not proved, when, from where and at what time recovery was made is not indicated and no site plan of the place of recovery was made. Provisions of Sec. 103 Cr.P.C. also not complied with. Appeal allowed. PLJ 1995 Cr.C. (Pesh) 362, Aksar Khan.
Without any explanation non-compliance with mandatory provision of Sec. 103 Cr.P.C. for dispensing with association of public witnesses from locality would make recoveries liable to rejection. NLR 1994 Cr. 424, Atta Ullah Khan.
No body agreed to act as mashir (Recovery witness), is a general explanation. Names of persons who were requested to join but they refused should have been given in evidence. Bald statements of witnesses that nobody agreed to act as mashir cannot be accepted. PLJ 1996 Cr.C. (Kar.) 926, Abdul Majeed.