P L D 1997 Supreme Court 408

Present: Ajmal Mian, Saleem Akhtar,

Saiduzzaman Siddiqui and Nasir Aslam Zahid, JJ

STATE through Advocate-General, Sindh---Appellant

versus

BASHIR and others---Respondents

Criminal Appeal No.325 of 1994, decided on 18th February, 1997.

(On appeal from the judgment dated 31-1-1994 of the High Court of
Sindh, Karachi, passed in Criminal Appeal No. 154 of 1993).

Per Ajmal Mian. J.--

(a) Criminal Procedure Code (V of 1898)---

----S. 156---Police Officer is not prohibited under law to be a complainant

if he is a witness to the commission of an offence and also to be an
Investigating Officer, so long as it does not, in any way, prejudice the
accused person---Court has to appraise the evidence produced by the
prosecution as a whole and will have to form the opinion after
evaluating the same---Where the Police Officer had headed the C.I.A.
party who arrested the accused persons and made recoveries of the arms
and ammunition, he could have sent the complaint to the police station---
Had such Officer been covered by the definition of the Station House
Officer employed in S.156(1), Cr.P.C. or had he been authorised by the
Competent Authority, there would have been no legal infirmity because
of the fact that same Officer investigated the case.

Aksar Khan v. The State 1995 MLD 1237 not approved.

(b) Criminal Procedure Code (V of 1898)--

----S. 103---Recovery---Requirement of 5.103, Cr.P.C. namely that two

members of the public of the locality should be Mashirs to the recovery,
is mandatory unless it is shown by the prosecution that in the
circumstances of a particular case it was not possible to have two
Mashirs from the public---If, however, the statement of the Police Officer
indicated that no efforts were made by him to secure two Mashirs from
public, the recoveries would be doubtful.
Mushtaq Ahmad v. The State PLD 1996 SC 574 ref.

(c) West Pakistan Arms Ordinance (XX of 1965)---

----S. 13-D---Criminal Procedure Code (V of 1898), S.103---Recovery--

Evidence of police personnel with regard to recovery of unlicensed arms
and ammunition when can be relied.

There is a marked distinction between a case in which the offence

charged with is the recovery of the article itself like recovery of an
unlicensed Klashnikov and a case in which the article recovered e.g. a
crime weapon is 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 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 were free from doubt, the
testimony of the police personnel if otherwise free from any legal
infirmity may be accepted.

Mushtaq Ahmad v. The State PLD 1996 SC 574 ref.

(d) Criminal Procedure Code (V of 1898)--

----S. 103---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Recovery-

- Joint Mashimama of the recovery of incriminating articles---Evidentiary
value.

Simpliciter the fact that there is a joint Mashimama of recoveries

of the incriminating articles, may not be fatal if the same identifies each
of the recovery with the accused concerned with all relevant particulars
but if such a joint Mashirnama is vague and cannot identify with
certainty the articles recovered from a particular accused, such a
Mashirnama cannot be relied upon.

(e) Constitution of Pakistan (1973)---

----Art. 185---Criminal Procedure Code (V of 1898), S.417---Appeal against

acquittal---Principles---Fact that there can be a contrary view on re-
appraisement of the evidence by the Court hearing the acquittal appeal,
simpliciter would not be sufficient to justify interference with the
acquittal judgment.
An acquittal appeal stands on a different footing than an appeal against
the conviction. In acquittal appeals, the superior Courts generally do not
interfere with unless they find that miscarriage of justice has taken place.
The factum that there can be a contrary view on re-appraisal of the
evidence by the Court hearing the acquittal appeal simpliciter would not
be suffic%nt to justify. interference with the acquittal judgment.

The State v. Muhammad Sharif and 3 others 1995 SCMR 535 and
Feroze Khan v. Fateh Khan 1991 SCMR 2220 ref.

(f) Criminal Procedure Code (V of 1898)--

----Ss. 156(1) & 4(p)---Power to investigate cognizable offence ---Scope---

C.I.A. personnel have no power to investigate a cognizable offence---
Contention that such personnel had been taking cognizance of
cognizable offences for the last several decades, investigating the same,
and submitting the challans in respect thereof, inasmuch as even a
Special Court C.I.A. was established at Karachi for trial and that
constituted according of recognition by the Courts to the C.I.A.'s power to
take cognizance of cognizable offences to investigate, to submit challans
to the Court concerned, was repelled---Any alleged illegal practice cannot
negate an express provision of a statute---Supreme Court, on giving of
undertaking by concerned Authorities, not to violate provision of
S.156(1); Cr.P.C., observed that any breach of the statutory provision by
functionaries will entail initiation of -appropriate legal proceedings
against the C.I.A. personnel to be found guilty of such violation.

Under subsection (1) of section 156, Cr.P.C. the power to investigate

a cognizable offence under the above provision has been conferred on
any officer incharge of the Police Station having jurisdiction over the
local area within the limits of such Police Station.

Only an Officer incharge of the police station having jurisdiction

over the local area within the limits of a police station can investigate a
cognizable offence or any other person covered by the definition of the
officer incharge of a police station given in clause (p) of section 4, Cr.P.C.
which, in the absence of officer incharge of a police station, 'includes
officer incharge present at the station house who is next to the officer
incharge of the police station and is above the rank of the constable or
when the Provincial Government so directs, any other police officer so
present.

The above provision does not include C.I.A. personnel, therefore,

they have no power to investigate a cognizable offence.

(g) Criminal Procedure Code (V of 1898)---

----S. 156---Investigation into cognizable offence---Violation of S.156(1),
Cr.P.C. by committing illegality/irregularity by C.I.A. personnel may not
vitiate trial if no serious prejudice has been caused to the accused person
resulting in miscarriage of justice in view of S.156(2), Cr.P.C. but that does
not mean that C.I.A. personnel should knowingly violate the provision of
Cr.P.C.

Per Saleem Akhtar. J. agreeing with Ajmal Mian, J--

(h) Criminal Procedure Code (V of 1898)---

----S. 156---Power to investigate cognizable offence ---C.I.A. personnel are

not authorised to take cognizance of a cognizable offence and investigate
the same under S.156, Cr.P.C.

(i) Criminal Procedure Code (V of 1898)---

----S. 103---Recovery---Testimony of police personnel ---Admissibility--

Conditions.

A Police Officer produced as a witness for the prosecution can be

relied upon like other prosecution witnesses but as he is an investigating
officer or attached with tire investigation staff, the Courts as a matter -of-
prudence and safe administration of justice, scrutinize the evidence of
such witnesses with care anti caution. Where circumstances permit, the
evidence may be accepted to prove arrest or recovery but in order .to
make it credible and authentic the prosecution must explain the
circumstances for non-compliance with the provisions of section 103.
Section 103 read with section 164, Cr.P.C. lays down the mode for
recovery and search but, as in certain circumstances a deviation may be
made, it would be proper to explain the reasons for such deviation. So
far the acceptability of the evidence of the police officer is concerned, the
general principle is that if there is no animus or male fides, the
investigation has been straight and honest and no substantial defect or
infirmity has been pointed out in the evidence or brought through cross-
examination, the evidence; of such a witness, though a policeman, may
be accepted. However, in cases of recovery, this principle is accepted
subject to furnishing an explanation by the prosecution for non-
compliance with section 103.

Being a policeman or an investigating Officer, is no bar to the

acceptance of his testimony. His evidence should be accepted like other
prosecution witnesses and if it fulfils all such conditions which are
necessary for accepting and believing a witness, it cannot be discarded.
But where such witness proves recovery, normal limitations and
restrictions have to be observed.

Where search is made by the police officer without resorting to the

provisions of section 103, Cr.P.C., the policeman or the investigating
officer would not be a competent witness. No doubt their evidence can be
assessed as an ordinary witness, but where it relates to search and
seizure, it will have to be considered whether provisions of section 103,
Cr.P.C. have been
observed.

Mushtaq Ahmad v. State PLD 1996 SC 574 ref.

Mirza Shah v. State 1992 SCMR 1475 clarrified.

(j) Criminal Procedure Code (V of 1898)---

----S. 103---Recovery---Provisions of S.103, Cr.P.C. apply to search of a

person---Applicability of 5.103, Cr.P.C. cannot be restricted to search of a
place and not a person.

Subsection (3) of section 102 and subsection (4) of section 103,

Cr.P.C. provide and contemplate for search of a person. According to
subsection (4) of section 103, Cr.P.C. a person can be searched anywhere
and therefore the applicability of section 103, Cr.P.C. cannot be restricted
to search of a place and not a person.

Section 103, Cr.P.C. does apply to search of a person. [p. 423] N

(k) Criminal Procedure Code (V of 1898)---

----S. 102---Even in a place a person can be searched under S.102, Cr.P.C.

(1) Criminal Procedure Code (V of 1898)---

----S. 103---Recovery---Applicability of 5.103, Cr.P.C. is not restricted to any

locality, house or fixed place of abode.

It is true that section 103 as it stands, is a part of Chapter VII but

when by virtue of section 165, Cr.P.C. it is applied to investigation then its
applicability is restricted only to the extent it is capable of being applied
in the facts and circumstances of the case. Therefore, during
investigation, the applicability of section 103 is not restricted to any
locality, house or fixed place of abode.
 Muhammad Shah v. State PLD 1984 SC 278 ref.

Per Nasir Aslam Zahid J. agreeing with Ajmal Mian. J.-

(m) Criminal Procedure Code (V of 1898)---

----S. 156---Investigation into cognizable cases---No legal prohibition for a

Police Officer to be a complainant if he is a witness to the commission of
an offence and also to be an Investigating Officer so long as it does not, in
any case, prejudice the accused person.

Aksar Khan v. The State 1995 MLD 1237 not approved.

(n) Criminal Procedure Code (V of 1898)--

----S. 156----Police Rules, 1934, Chap. XXV, 8.25.2, para. 3---Investigation

into cognizable cases---Investigating Officer who is not a formal witness
is very important witness not only for the prosecution but also for the
accused---Such Police Officer, however, is not expected to heading a
raiding party, appearing as a witness; becoming complainant and lodging
an F.I.R. against the accused and then becoming an Investigating Officer
of the same case---Principles explained.

The Investigating Officer is not a formal witness. He is very

important witness not only for the prosecution but also for the accused.

Investigating Officer is not merely a formal witness. Several

aspects of the case which the prosecution witnesses try to conceal from
the Court can be Drought out from the statement of the Investigating
Officer. Omission to examine the Investigating Officer puts the accused to
serious handicap in defending the charge.

Failure by the prosecution to examine the Investigating Officer,

deprives the defence of their very valuable right and opportunity of
shaking the credit of the prosecution witnesses by bringing out the
contradictions between their statements made to the police during
investigation and their evidence in Court. Such a serious defect could not
be cured.

It was essential that the Investigating Officer should have been

examined to afford an opportunity to the defence to cross-examine him.
By reason of his non-examination the defence case has been prejudiced.

It is the duty of an Investigating Officer to find out the truth of the

matter under investigation. His object shall be to discover the actual facts
of the case and to arrest the real offender or offenders. He shall not
commit himself prematurely to any view of the facts for or against any

It could hardly be expected that a police officer, who is heading a

raiding party and is a witness, also becomes the complainant and lodges
ate F.I.R. against the accused. and then becoming an Investigating Officer
of the same case, will comply with the Police Rule. In the circumstances,
the practice of the seizing officer or the head of a police party who is also
a witness to the crime becoming or being nominated as an Investigating
Officer of the same case should be avoided and if any other competent
officer is available in the police station, he may be nominated as the
Investigating Officer rather than the head of the Police Party:
Investigating Officer is an important witness for the defence also and in
case the head of the police party also becomes the Investigating Officer
he may not be able to discharge his duties as required of him under the
Police Rules.

Ghulam Hussain v. State 1990 PCr.LJ 577 and Muhammad Sharif v.

State 1972 PCr.LJ 1259 ref.

Suleman Habibullah, Advocate Supreme Court and Faizanul Haq,

M.M. Aqil, Advocate Supreme Court and M.A.I. Qami, Advocate-on

Record for Respondents.

Mir Muhammad Sheikh, A.-G., Sindh (on Court Notice).

Dates of hearing: 15th and 18th February, 1997.

JUDGMENT

AJMAL MIAN, J.---This is an appeal with the leave of this Court

against the judgment dated 31-1-1994 passed by a Division Bench of the
High Court of Sindh in Criminal Appeal No. 154 of 1993, filed by the
respondents against their conviction under section 399, P.P.C. by the
Special Court, Suppression of Terrorist Activities (S.T.A.), Larkana/Sukkur
Division at Shikarpur, and sentence of seven years' R.I. and a fine of
Rs.5,000 awarded to each of the respondents and in default of payment of
fine, to undergo further R.I. for six months. Respondents Rahim Dad and
Bashir had also filed appeals against their convictions under section 13-D
of the Arms Ordinance, 1965, where under they were awarded R.I. for
four years and a fine of Rs.5,000 each and in default of payment of fine,
they were to suffer further R.I. for six months, allowing the same by
setting aside the above convictions and sentences.
 2. The brief facts are that on the night between 12th and 13th
September, 1991, SIP Muhammad Ratique, who was Incharge of C.I.A.
Office, Shikarpur, at 9-30 p.m. was on night patrol with Inspector
Shameem Ahmed of C.I.A. and other staff. .They received a spy
information that some criminals were hiding at Andho Muqam' at
Rustam Road. They reached the above place at about 10-30 p.m., where
they noticed some persons in a forest on the northern side of the read. It
was the case of the prosecution that on seeing the aforesaid persons oil
head lights, the police party encircled the forest and gave warning to tire
said persons in hiding to surrender. After that, they were apprehended.
They were all in five, they disclosed their identity. The C.I.A. party
arrested the following five accused persons alongwith the arms and
ammunition:--.

(i) Bashir with a Klashnikov with its magazine containing 20 live rounds.
In addition to that, 80 live cartridges in a bag were also found with
him.

(ii) Shaman with a .12 bore shot gun containing one live cartridge,
besides that he was carrying a bag containing 10 live cartridges.

(iii) Sheral with a .12 bore gun loaded with one cartridge. He was also
carrying seven cartridges in the right side of his pocket.

(iv) Rahimdad with a Klashnikov alongwith magazine containing 25 live

rounds of Klashnikov.

(v) Noor Muhammad with a gun loaded with one cartridge. He was also
having five live cartridges in his right pocket.

3. All the above accused persons had no licences for the arms and
ammunition recovered from their possession. They were arrested and
the arms and ammunition were secured under Mashirnamas. It was the
case of the prosecution that the above arrested accused persons and the
arms and ammunition were taken to the C.I.A. Centre, Shikarpur, where
Inspector Shameem Ahmed prepared his report, which was sent to the
Police Station New Fojdari, Shikarpur. Thereupon, a case was registered
under sections 402 and 399, P.P.C. and under section 13-D of the Arms
Ordinance. It seems that after the registration of the above case, the same
was investigated by Inspector Shameem Ahmed instead of the S.H.O. or
any other authorised police officer of the Police Station, New Fojdari,
Shikarpur. He, after completing the investigation, submitted separate
challan against each of the accused persons under sections 409 and 399,
P.P.C. and also separate challan for a case under section 13-D of the Arms
Ordinance, before the Special Court, Suppression of Terrorist Activities,
Larkana, which was transferred to the Special Court, Suppression of
Terrorist Activities, Shikarpur.

4. The accused persons pleaded not guilty. In support of the case, the
prosecution examined P.Ws. Muhammad Rafique and Shameem Ahmed,
Exhs.5 and 6 respectively and closed its side under statement Exh. 7. The
accused made their statements under section 342, Cr.P.C. Exhs. 8, 9, 10, 11
and 12. They denied the prosecution case and stated that the prosecution
witnesses were interested witnesses being police officials. They denied
the recovery of any incriminating article from their possession. The
accused persons examined in defence D.W. 1 Muhammad Ramzan son of
Lal Muharruaad, paternal grandfather of accused Rahimdad and uncle of
accused Noor Munarnurad; D.W.2 Khatr Muhammad, Nekmard of village
Kalar; D.W. 3 Rukunuddin, village of village Orangabad, Taluka Garhi
Yasin, District Shikarpur.

5. After the conclusion of the trial, the learned Special Court,

Suppression of Terrorist Activities, Larkana, through its judgment dated
6-4-1993, convicted and sentenced the respondents/accused persons in
the above terms. They filed Criminal Appeal No. 154 of 1993 in the High
Court of Sindh, which was allowed by a Division Bench and the
respondents were acquitted on all the counts. Thereupon, the State filed
a petition for leave to appeal against the aforesaid acquittal judgment of
the High Court, which was granted to consider the contentions noticed in
the leave granting order dated 27-6-1994.

6. In support of the above appeal Mr. Suleman Habibullah as well as

Mr. Mir Muhammad Sheikh, learned Advocate-General, Sindh, appeared
on Court notice have candidly conceded that the High Court judgment in
setting aside the conviction under section 399, P.P.C. is not assailable and,
therefore, the above acquittal appeal is not sustainable.

7. However, as regards the conviction under section 13-D of the Arms

Ordinance, originally Mr. Suleman Habibullah had conceded the
factum that the judgment of the High Court in this regard was also not
assailable, but later on he argued that since the recoveries of the arms
and ammunition had been proved, the High Court was not justified in
setting aside the convictions and sentences under section 13-D of the
Arms Ordinance of the respondents/accused Rahimdad and Bashir,
from whom Klashnikovs were recovered alongwith the
aforementioned live cartridges.

Mr. Mir Muhammad Sheikh, learned Advocate-General, Sindh, also

adopted the above line of arguments but candidly conceded that since
the above appeal is an acquittal appeal, the view found favour with the
learned Judges of the High Court can be one of the views in the matter
and, therefore, the acquittal appeal in respect of section 13-D of the Arms
Ordinance is also not sustainable.

Mr. M.M. Aqil, learned counsel for the respondents, had urged as
under:--

(i) That since Shameem Ahmed was the complainant in the case as well
as the Investigating Officer, the trial vitiated;

. (ii) that in spite of the fact that Shameem Ahmed had received a spy
information at 9-30 p.m., he did not make arrangement for Mashirs
from the public of the locality close to the place of the incident;

(iii) that since in support of the case under section 13-D of the Arms
Ordinance the recovery witnesses were the police personnel, no
implicit reliance can be placed on their evidence;

(iv) that even the Mashirnama of recovery could not have been relied
upon as it was a joint Mashirttama of recovery of the arrest as well as
recoveries of the arms and ammunition;

(v) that since this Court has seized of the matter in the form of acquittal
appeal, no interference can be made unless it is found that the view
found favour with the learned Judges of the High Court is perverse or
is of the nature which could not have beets formed at all on the basis
of the material available on record.

(vi) that C.I.A. personnel have no power under section 156(1) of the
Code of Criminal Procedure, 1898, hereinafter referred to as Cr.P.C.,
to investigate any cognizable offence and to submit a challan in
respect thereof and, therefore, the entire trial vitiated on account of
coram non judice.

8. Adverting to the above first submission of Mr. M.M. Aqil that since
Shamim Ahmed was the complainant in the case as well as the
Investigating Officer, the trial vitiated, it tray be observed that in support
of his above submission he has referred to the case of Aksar Khan v. The
State (1995 MLD 1237), in which a learned Single Judge of the Peshawar
High Court, while dealing with an appeal of a convict under section 13 of
the Explosive Substances Act, 1908, inter alia held that a Police Inspector
could not legally assume dual functions as a complainant and also as an
Inspector as it had rendered the trial a sheer mockery. We are unable to
subscribe to the'above broad legal proposition. There is no legal
prohibition for a police officer to be a complainant if he is a witness to
the commission of an offence and also to be an Investigating Officer so
long as it does not, in any way, prejudice the accused person. The Court
will have to appraise the evidence produced by the prosecution as a
whole and will have to form the opinion after evaluating the same. In the
case in hand, since Shameem Ahmad was heading the C.I.A. party
involved and arrested the accused persons and made recoveries of the
arms and ammunition, he could have sent the complaint to the Police
Station New Fojdari, Shikarpur. The question, as to whether he could
investigate as a C.I.A. Officer, is a different issue, had he been covered by
the definition of the Station House Officer employed in section 156(1) of
the Cr.P.C. or had he been authorised by the competent Authority, there
would not have been any legal infirmity because of the factum that he
investigated the case.

9. As regards the above second submission of Mr. M.M. Aqil, it may be

observed that it has been repeatedly held that the requirement of section
103, Cr.P.C., namely, that two members of the public of the locality should
be Mashirs to the recovery, is mandatory unless it is shown by the
prosecution that in the circumstances of a particular case it was not
possible to have two Mashirs from the public. In this regard, it will
suffice to refer to a recent judgment of this Court in the case of Mushtaq
Ahmad v. The State PLD 1996 SC 574. In the case in hand, SIP Muhammad
Rafique has not been able to give any cogent explanation as to why he
was unable to Secure two Mashirs from the public. In his cross-
examination at page 48 of the paper book he stated that "I received the
spy information regatding the presence of the accused I did not take the
informer with me when I proceeded to Andho Muqam. There are hotels
at Rustam Chowk No person from the vicinity came at the time of arrest
and recovery." The above statement of Muhammad Rafique in his cross
examination indicates that no efforts were made by him to secure two
Mashirs from the public. In this view of the matter, the recoveries are
doubtful.

10. Reverting to the third submission that since in support of the case
under section 13-D of the Arms Ordinance the recovery witnesses were
the police personnel, no implicit reliance can be placed on their
evidence, it may be stated that he has relied upon the following
observation from the judgment of this Court in the case of Mushtaq
Ahmad v. The State (supra):--

"(v) That likewise there is a marked distinction between a case in which

the offence charged with is the recovery of the article itself like
recovery of an unlicensed Klashnikov and a case in which the article
recovered e.g. a crime weapon is 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 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 tray be accepted;"

The above extract from the above judgment of this Court lends support to
Mr., Aqil's above submission. Therefore, on this account also the
conviction under section 13-D of the Arms Ordinance cannot be
sustained.

11. Referring to the fourth submission of Mr. Aqil that even the
klashirnama of recovery could not have been relied upon as it was a
joint Mashirnama of recovery of the arrest as well as recoveries of the
arms and ammunition, it may be stated that simpliciter the fact that
there is a joint II Mashirnama of recoveries of. the incriminating articles,
may not be fatal if the same identifies each of the recovery with the
accused concerned with all relevant particulars but if such a joint
Mashirnama is vague and cannot identify with certainty the articles
recovered from a particular accused, such a Mashirnama cannot be
relied upon. In the instant case, Mashirnama Exh. 5-A is a joint
Mashitnama of arrest and recovery of the arms and ammunition. The
Klashnikovs were allegedly recovered from accused Rahimdad and
Bashir with live cartridges. The Klashnikovs did not bear any number or
mark of distinction and, therefore, it is difficult to identify which of the
Klashnikov was recovered from which of the accused. If no identity mark
was placed by SIP Muhammad Rafique, in that event, the above
contention would have force. This aspect has not beers dilated upon by
the' Courts below and, therefore, it needs no further discussion.

12. Reverting to his above fifth submission as to limited scope of

interference by this Court in an acquittal appeal, it may be observed that
he has. relied upon the case of Fayyaz Akhtar v. The State 1993 SCMR 828
and the case of the State v. Muhammad Sharif and 3 others (1995 SCMR
535).

In the first case this Court quoted with approval a passage from its
earlier judgment in the case of Feroze Khan v. Fateh Khan (1991 SCMR
2220), in which it was observed that the High Court was not justified in
setting aside an acquittal judgment merely on the ground that it had
different opinion regarding the appreciation of evidence and, therefore,
the convict's appeal was allowed.
 Whereas in the second case this Court inter alia highlighted the
difference between appraisement of evidence in the appeal against
conviction and in the appeal against acquittal and observed that in the
former, appraisal of evidence is done strictly and in the latter, the same
rigid method of appraisement is not to be applied as there is already a
finding of acquittal given by the Court or Courts below after proper
analysis of evidence. .

There cannot be any cavil with the legal proposition that an

acquittal appeal stands on a different footing than an appeal against the
conviction. In acquittal appeals, the superior Courts generally do not
interfere with unless they find that miscarriage of justice has taken place.
The factum that there can be a contrary view on re-appraisal of the
evidence by the Court hearing the acquittal appeal simpliciter would not
be sufficient to interfere with the acquittal judgment. In this regard, it
may be mentioned that Mr. Mir Muhammad Sheikh, learned Advocate-
General Sindh, who appeared on Court notice, has candidly conceded
that this is not a fit case where this Court should interfere with an
acquittal judgment of the High Court as the view found favour with the
learned Judges of the High Court could be one of the views.

13. Adverting to the last submission, namely, that C.I.A. personnel have
no power under section 156(1) of Cr.P.C. to investigate any cognizable
offence and to submit a challan in respect thereof and, therefore, the
entire trial vitiated on account of coram non judice, it may be observed
that under subsection (1) of section 156, Cr.P.C. the power to investigate a
cognizable offence under the above provision has been conferred on any
office incharge of the Police Station having jurisdiction over the local
area within the limits of such Police Station, whereas clause (p) of section
4, Cr.P.C. defines "officer incharge" of a police station as under:--

"(p) .'officer-in-charge of a police-station' includes, when the officer-in-

charge of the police station is absent from. the station house or unable
from illness or other cause to perform his duties, the police officer
present at the station house who is next in rank to such officer and is
above the rank of constable or when the Provincial Government so
directs, any other police officer so present:"

A perusal of the above provision indicates that only an officer in-charge

of the police station having jurisdiction over the local area within the
limits of a police station can investigate a cognizable offence or any other
person covered by the definition of the officer-in-charge of a police
station given in above clause (p) of section 4, Cr.P.C. which in the absence
of officer incharge of a police station includes officer-in-charge present at
the station house who, is next to the officer incharge of the police station
and is above the rank of the constable or when the Provincial
Government so directs, any other police officer so present.

The above provision does not include C.I.A. personnel, therefore, they
have no power to investigate a cognizable offence. Since this was a
question of public importance as it is not uncommon that C.I.A.
personnel have been investigating and submitting challans in respect of
cognizable offences, inter alia in Sindh including Karachi, we had passed
the following order on 15-2-1997:--

"In this case one of the pleas raised by the defence is that the.C.I.A.
personnel had arrested the accused and had, investigated the case and
submitted challan. According to learned counsel for the defence, this was
in violation of section 156(1) of the Criminal Procedure Code which
authorises an officer-in-charge of the Police Station of the area
concerned. We had issued notice to the learned Advocate-General, Sindh
to assist the Court on the above question for today and in response to the
above notice Shaikh Mir Muhammad, the learned Advocate-General,
Sindh, has appeared and submitted that factually C.I.A. personnel have
no power to register the case and investigate unless authorised by the
superior officers in terms of the Criminal Procedure Code. He has,
however, contended that the unauthorised registration or investigation
of the case would not vitiate the trial if it was held case by a competent
Court. The practice that the C.I.A. has been arresting,. investigating and
submitting challan without authorisation is prevalent inter alia Karachi,
we would issue notice to the I.-G. Police, Sindh, to appear in person on 17-
2-1997 to bring the relevant record if any, authorising C.I.A. personnel to
investigate cases in the absence of the authorisation by the superior
officers. A copy of
this order may be given to the learned Advocate-General who will
contact the I.-G. and D.I.-G. to ensure their appearance.

14. In response to the above order, Mr. Mir Muhammad Sheikh,

learned Advocate-General Sindh, alongwith Mr. Mohib Asad, I.-G. Police,
Sindh, Mr. Asad Jehangir, D.I.-G. Police, Karachi Range, and Mr. Allah
Bux, A.I.-G. Legal had appeared. Mr. Mir Muhammad Sheikh, learned
Advocate-General, Sindh as well as Mr. Mohib Asad, I.-G. Police, Sindh,
candidly submitted that there is no law or valid order under which the
C.I.A. personnel have been generally authorised to take cognizance of a
cognizable offence udder section 156(1), Cr.P.C.

15. However, Mr. Allah Bux, A.I.-G. Legal has submitted that since for
the last several decades the C.I.A. personnel have been taking cognizance
of cognizable offences, investigating the same and submitting the
challans in respect thereof, inasmuch as even a Special C.I.A. Court was
established at Karachi for trial, the same constitutes according of
recognition by the Courts to the C.I.A.'s power to take cognizance of
cognizable offences, to investigate and to submit challans to the Court
concerned.

The above submission seems to be fallacious. Any alleged illegal

practice cannot negate an express provision of a statute. It is unfortunate
that a Government functionary which is entrusted with the enforcement
of law should be guilty of breach of a provision of law. It is high time that
efforts should be made to establish the supremacy of law instead of
relying upon an illegal practice.

16 Mr. Mohib Asad, I.-G. Police, Sindh, also submitted that he would
issue necessary order direction to the C.I.A. not to violate the above
provision of the Cr.P.C. in future. He has given the following statement
duly signed by him and by the learned Advocate-General, Sindh:--

I, Syed Mohib Asad, Inspector-General of Police, Sindh, Karachi hereby

states as under:--

That the irregula;ities in the working of C.I.A. in Sindh as pointed oui, by

the Hon'ble Court in their Lordships' order dated 15-2-1997 shall be'
rectified through a standing order to bring these in consonance to the
provisions of Police Rules, 1934. That strict orders in this behalf shall also
be issued."

17. We have incorporated the above undertaking of the I.-G. Police,

Sindh as a part of this judgment. Any breach of the same will entail
initiation of appropriate legal proceedings against the C.I.A. personnel to
be found guilty of violation, of the above undertaking.

18: As regards the question, as to whether the above

illegality/irregularity if already committed by the C.I.A. personnel would
vitiate the trial, it may be observed that subsection (2) of section 156,
Cr.P.C. expressly provides that: ' No proceeding of a police officer in any
such case shall at any stage be called in question on the ground that the
case was one which such officer was not empowered under this section
to investigate". It is an admitted position that the C.I.A. is part of the
Police Force. It is in fact a special branch carved out from the police force
for special purpose. The violation of section 156(1) of the Cr.P.C. may not
vitiate trial if no serious prejudice has been caused to the accused person
concerned resulting in miscarriage of justice in view of above subsection
(2) of section 156, Cr.P.C., but it does not mean that the C.I.A. personnel
should knowingly violate the above provision of the Cr.P.C. On the
contrary, they are legally duty bound to ensure the supremacy of law.
 19. The upshot of the above discussion is that the above appeal is
dismissed. These are the reasons for the short order of even date passed
by this Court. The office should send a copy of this judgment to the I.-G.
Police, Sindh.

(Sd.)
AJMAL MIAN, J.

I agree and have appended my note.

(Sd.)
SALEEM AKHTAR, J.

(Sd.)
SAIDUZZAMAN SIDDIQUI, J.

I agree. However, I have a separate note.

(Sd.)
NASIR ASLAM ZAHID, J.

SALEEM AKHTAR, J.---I agree with the judgment of my learned

brother Ajmal Mian, J. that C.I.A. personnel are not authorised to take
cognizance of a cognizable offence and investigate a congnizable offence
under section 156, Cr.P.C., and the appeal should be dismissed. However,
by way of clarification, I would like to add my note, which is in respect of
judgment cited in it, namely, Mushtaq Ahmed v. State (PLD 1996 SC 574)
in- which while reviewing the judgments pronounced on section 103,
Cr.P.C., reference has been made to a judgment authored by me reported
as Mirza Shah v. State 1992 SCMR 1475. Only para. 15 of this judgment
has been quoted and I have observed that this portion is quoted during
arguments completely out of context. Before this I had observed as
follows:--

. "11. It has been contended that evidence of police officer should be

accepted like any other prosecution witness. A police officer produced as
a witness for the 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, scrutinize the evidence of such witnesses with
care and caution. Where circumstances permit, the evidence may be fir
accepted to prove arrest or recovery but in order to make it credible and
authentic the prosecution must explain the circumstances for non-
compliance with - the provisions of section 103. Section 103 read with
section 164, Cr.P.C. lays down the mode for recovery and search but as in
certain circumstances a deviation may be made, it would be proper to
explain the reasons for such deviation. So far the acceptability of the
evidence of the police officer is concerned, the general principle is that if
there is no animus or mala fides, the investigation has been straight -'
and honest and no substantial defect or infirmity has been pointed out in
the evidence or brought through cross-examination, the evidence such a
witness though a policeman, may be accepted. However, in cases of
recovery, this principle is accepted subject to furnishing an explanation
by the prosecution for non-compliance with section 103. "

Para. 15 quoted by my learned brother reads as follows:

".15. From the aforesaid judgments, it seems clear that being a policeman
or an Investigating Officer, is -no bar to the acceptance of his testimony.
His evidence should be accepted like other prosecution witnesses and if it
fulfils all such conditions which are necessary for accepting and
believing a witness, it. cannot be discarded. But where such witness
proves recovery, normal limitations and restrictions have to be
observed."

Both the paras. are to be read together and it has never been observed
that where search is made by the police officer without resorting to the
provisions of section 103, Cr.P.C., the policeman or the investigating
officer would be a competent witness. No doubt their evidence can be
assessed as an ordinary witness, but where it relates to search and
seizure, it will have to be considered whether provisions of section 103,
Cr.P.C. have been observed. All restrictions and conditions which are
preconditions to the admissibility of such police personnels' evidence
have been spelt out in para. 11 quoted above.

2. Another aspect which I wish to dilate on is that in Mushtaq Ahmed's

case after summarising all the judgments referred in it, certain principles
have been deduced and principle No. l reads as follows:--

"1. That section 103 relates to a search of a place situate in a locality and
not to a search of a person."

With respect I am unable to agree with the proposition that section 103
does not apply to search of a person. In many of the judgments either this
aspect has not been considered or different views have been expressed.
A search whether of a place or a person is provided under Chapter VII of
Cr. P.C., entitled "Of processes to compel the production of documents
and other movable property, and for the discovery of persons,
wrongfully confined". Part D under this, Chapter is entitled "General
provisions relating to searches". Section 102 which falls under this
heading in subsection (1) speaks about "any place liable to search is
closed, any person residing in or being incharge of such place shall, on
demand of the officer or other person executing the warrant and on
production of the warrant, allow him free ingress thereto and afford ail
reasonable facility for a search therein". However, subsection (3)
provides as follows;--

"(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."

Therefore, under section 102 even in a place a person can be searched.

Section 103 provides the mode and procedure how search should be
made. 1 Section 103(3) speaks of the occupants of the place searched or
some person on his behalf shall in every instance be permitted to attend
during the search. However, subsection (4) states that "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". Therefore, subsection (3) of section 102 and
subsection (4) of section 103 provide and contemplate for search of a
person. According to subsection (4) o~ section 103, a person can be
searched anywhere and therefore the applicability of section 103 cannot
be restricted to search of a place and not a person.

In Mirza Shah's case while referring to Muhammad Shah v. State PLD

1984 SC 278 (Shariat Appellate Bench) I had observed as follows:--

"It is true that section 103 as it stands is a part of Chapter VII but when by
virtue of section 165, Cr.P.C. it is applied to investigation then its
applicability is restricted only to the extent it is capable of being applied
in the facts and circumstances of the case. Therefore, with respect, it may
be observed that during investigation, the applicability of section 103 is
not restricted to any locality, house or fixed place of abode. "

I understand this question was raised in Criminal Petition No.55-K of

1996 and referred to a larger Bench.

(Sd.)
SALEEM AKHTAR, J

NASIR ASLAM ZAHID, J.---I agree with the judgment of my learned

brother Ajmal Mian, J. However, I am adding this note as I would like to
make certain observations regarding the first submission made on behalf
of the respondents that, since Inspector Shamim Ahmad of C.I.A. was the
complainant in the case as well as the Investigating Officer, the trial
vitiated. In support of the said proposition, reliance had been placed on
the case of Aksar Khan v. The State 1995 MLD 1237 in which a learned
Single Judge of the Peshawar High Court held that a Police Inspector
could not legally assume dual charge as a complainant and as an
investigator, as it had rendered the trial a sheer mockery. I agree with
Ajmal Mian, J. that we are unable to subscribe the said broad legal
proposition and that there is no legal prohibition for a police officer to be
a complainant if he is a witness to the commission of an offence and also
to be an Investigating Officer so long as it does not, in any way, prejudice
the accused person. .

The Investigating Officer is not a formal witness. He is a very important

witness not only for the prosecution but also for the accused. Reference
may be made to a judgment of the Lahore High Court in the case of
Ghulam Hussain v. State 1990 PCr.LJ 577, in which case the official
witnesses including the Investigating Officer were not examined by the
trial Court. Relying upon an earlier judgment of the Lahore High Court in
the case of Muhammad Sharif v. State 1972 PCr.LJ 1259 it-was observed
as follows:--

"Investigating Officer is not merely a formal witness. Several aspects of

the case which the prosecution witnesses try to conceal from the Court
can be brought out from the statement of the Investigating Officer.
Omission to examine the Investigating Officer puts the accused to serious
handicap in defending the charge. "

Para 5 of the judgment in the case of Muhammad Sharif v. State rendered

by th Lahore High Court may also be referred usefully which reads as
under:-

"The only question raised before me is that since the police officer, who
recorded the statement of Muhammad Moonas and the other police
officers, who subsequently carried out the investigation, have not been
produced, the petitioners have been prejudiced in their trial. They have
not been in a position to bring out the discrepancies, if any, in the
statements of the prosecution witnesses. Learned counsel for the State
agrees, that the non-production of the police officers has caused
prejudice to the petitioners. In fact, no reference is required in this
matter to any authority, but I may refer to the case of A.K.M. Raza and
others v. The State PLD 1958 Dacca 111 where this very question
precisely was considered by their Lordships of the Dacca Court. In that
case, Mr. M.A. Jabbar, the Investigating Officer, was withheld by the
prosecution and it was held that failure by the prosecution to examine
the Investigating Officer, deprived the defence of their very valuable
right and opportunity of shaking the credit of the prosecution witnesses
by bringing out the contradictions between their statements made to the
police during investigation and their evidence in Court. Such a serious
defect could not be cured. It was held:--

It was essential that the Investigating Officer should have been

examined to afford an opportunity to the defence to cross-examine him.
By reason of his non-examination the defence case has been prejudiced.'

With these observations, the learned Judges set aside the conviction and
sentence passed on the appellants and directed their retrial. "

Then .reference may be made to the Police Rules, 1934. Chapter XXV of
the Police Rules relates to Investigation. Para. 3 of the Rule 25.2 in
Chapter XXV reads asunder:-- ,

"3. It is the duty of an Investigating Officer to find out the truth of the
matter under investigation. His object shall be to discover the actual facts
of the case and to arrest the real offender or offenders. He shall not
commit himself prematurely to any view of the facts for or against any
person."

It could hardly be expected that a police officer, who is heading a raiding

party and is a witness, also becomes the complainant and loges an F.I.R.
against the accused, and then becoming an Investigating Officer of the
same case, will comply with the aforesaid Police Rule. In the
circumstances, the practice of the seizing officer or the head of a police
party who is also a witness to the crime becoming or being nominated as
an Investigating Officer of the same case should be avoided and if any
other competent officer is available in the police station, he may be
nominated as the Investigating Officer rather than the head of the Police
Party. As observed, Investigating Officer is an important witness for the
defence also and in , case the head of the police party also becomes the
Investigating Officer he may not be able to discharge his duties as
required of him under the Police Rules. .

A copy of this order may be sent to the Ministry of Law, Justice and
Parliamentary Affairs, Islamabad, and also the Interior Division of the
Federal Government for issuance of necessary instructions to the
Inspectors-General of Police of the Provinces as also the Inspector-
General of Police, Islamabad, for issuing instructions to all the concerned
police officers in the light of the observations made herein.

(Sd.)
NASIR ASLAM ZAHID, J.
M. B. A./S-1090/S Order accordingly
;