Section 103 of the Code of Criminal Procedure, 1898, lays down the statutory procedure for conducting searches by police officials under Chapter VII of the Code. Under section 103 Cr.P.C. independent witnesses are mandatorily required to be associated in search and recovery proceedings to ensure transparency and fairness. The object of this provision is to prevent false implication, fabrication of recoveries, and misuse of investigative powers, and to ensure that the evidence collected during the search inspires judicial confidence.
The superior courts have consistently held that Section 103 Cr.P.C. is enacted for “greater certainty and security” and to ensure that recovery evidence does not rest solely upon police officials, but is corroborated by independent persons, thereby minimizing the possibility of false implication.
[PLD 1996 SC 67 (ref.)]
Mandatory Requirement of Independent Witnesses Under Section 103 Cr.P.C.
Section 103(1) Cr.P.C. expressly provides that before making a search, the officer shall call upon two or more respectable inhabitants of the locality to attend and witness the search. The word “shall” indicates that the provision is mandatory in nature, subject to recognized exceptions.
Courts have repeatedly held that the requirement of joining independent witnesses in criminal cases is of vital significance and is meant to render search proceedings transparent and credible. Non-compliance, where no justification is offered, creates serious doubt regarding the genuineness of the recovery.
[PLD 1998 Lah 35; 2012 YLR 1228]
Preparation and Authentication of Recovery Memo
Section 103(2) Cr.P.C. requires that the search be conducted in the presence of the witnesses and that a list of all articles recovered, along with their place of recovery, be prepared and signed by the witnesses. This mashirnama is a critical document in criminal trials.
The Supreme Court has emphasized that the purpose of this requirement is to ensure honesty and fairness in recovery proceedings and to exclude any possibility of concoction or transgression by police officials.
[2016 YLR 2173; 2018 P.Cr.L.J. 666]
Evidence of Police Officials and Need for Corroboration
The courts have clarified that Section 103 Cr.P.C. does not imply that police officials are inherently untrustworthy; rather, it is designed to ensure that their testimony regarding search and recovery is corroborated by independent persons, thereby minimizing the risk of false implication.
It has been held that recovery evidence should not ordinarily depend solely upon police officials, particularly when association of independent witnesses from the locality was possible. Purpose of section 103 crpc was to ensure that the evidence given in court pertaining to the result of a search should not depend only on the evidence of Police officials alone but also on the evidence of independent persons, so that the possibility of false implication can be ruled out.
[2005 P.Cr.L.J. 1562; 1993 P.Cr.L.J. 709]
Applicability of Section 103 Cr.P.C. | Search of Place Versus Search of Person
Section 103 Cr.P.C. primarily pertains to the search of a house or place. However, judicial interpretation shows that it has also been applied to the search of a person in appropriate cases.
The Supreme Court has held that sub-sections (3) of Section 102 and (4) of Section 103 contemplate search of a person, and therefore, the applicability of Section 103 cannot be restricted only to searches of places.
[PLD 1997 SC 408; 1996 P.Cr.L.J. 1689]
Exception to Strict Compliance | Search at the Instance or Pointation of the Accused
A well-settled principle emerging from the case-law is that strict compliance with Section 103 Cr.P.C. is not necessary where recovery is effected at the instance or pointation of the accused. In such cases, the accused himself leads the police to the place of concealment and produces the incriminating article.
Courts have consistently held that recoveries made on the pointation of the accused are admissible and relevant under Article 40 of the Qanun-e-Shahadat and do not suffer from illegality merely due to non-association of independent witnesses in criminal cases.
[2014 P.Cr.L.J 923, 2008 YLR 471, 2000 MLD 1397]
Situations Where Section 103 Is Not Applicable & Independent Witnesses Not Required
Section 103 Cr.P.C. has been held to be inapplicable in cases where recovery is made during the course of an incident, from a running vehicle, train, highway, public places, or a public thoroughfare, or where circumstances make it impossible to procure private witnesses.
In such situations, insistence on strict compliance is considered impracticable and unrealistic.
[PLD 2012 Bal 221], [PLJ 2000 S.C 303]
Non-Compliance with Section 103 Cr.P.C.
Non-compliance with Section 103 Cr.P.C. and non association of Independent witnesses do not automatically annul the prosecution case. Courts have held that the legal effect of non-compliance must be examined in the facts and circumstances of each case.
Where recovery is effected on public roads and no effort is made to associate any member of the public, and no explanation is offered, the accused may be entitled to benefit of doubt.
[1994 P.Cr.L.J. 475]
Duty of Prosecution to Explain Non-Association of Independent Witnesses in Criminal Cases
Where independent witnesses are not associated despite availability, the prosecution must explain the reasons for such omission. Mere assertion that witnesses were unavailable is insufficient unless supported by convincing circumstances.
Failure to provide such explanation weakens the prosecution case and may render the recovery doubtful.
[2003 SCMR 573; 1997 SCMR 89]
Effect of Non Production of Independent Witnesses under section 103 Cr.p.c on Prosecution Case
Where police officials deliberately act as mashirs despite availability of independent witnesses, such conduct causes serious damage to the prosecution case. Courts have observed that preparation of mashirnama in violation of Section 103 undermines the credibility of recovery proceedings.
However, in exceptional circumstances, official witnesses may be relied upon if the prosecution satisfactorily explains why independent witnesses could not be associated.
[2019 P.Cr.L.J. Note 138; PLD 2006 Kar 698]
Application in Arms Ordinance Cases
In cases under the Arms Ordinance, 1965, courts have stressed the importance of associating independent witnesses, particularly when police had prior information and sufficient time to arrange mashirs.
Failure to associate independent witnesses in such circumstances entitles the accused to benefit of doubt.
[1991 P.Cr.L.J. Note 49; PLD 1993 Lah 430; 1996 P.Cr.L.J. 1843]
Appraisal of Evidence as a Whole
Courts have consistently held that prosecution evidence must be appraised as a whole. Where evidence does not inspire confidence and recovery proceedings appear doubtful due to procedural lapses, conviction cannot be sustained.
Convictions based solely on doubtful recoveries have been set aside, and accused have been acquitted.
[PLD 1997 SC 408; 2005 YLR 621]
Object and Purpose of Section 103 Cr.P.C.
The prime object of Section 103 Cr.P.C. is to ensure that search and recovery proceedings are conducted honestly and fairly and that the possibility of false implication, coercion, or fabrication is excluded. By requiring the association of independent and respectable persons of the locality, the law seeks to introduce an element of public oversight in police actions, thereby strengthening the credibility of the recovery process.
The provision is not meant to disbelieve official witnesses under all circumstances, but to ensure transparency and fairness in criminal investigations. It serves as a procedural safeguard to protect the rights of accused persons while simultaneously reinforcing public confidence in the administration of criminal justice and the lawful exercise of investigative powers.
Conclusion
Section 103 Cr.P.C. is a vital procedural safeguard that strengthens the credibility of search and recovery proceedings. The consistent judicial view is that association of independent witnesses is mandatory wherever practicable, and unexplained non-compliance seriously weakens the prosecution case.
At the same time, courts have recognized practical exceptions, particularly where recoveries are made at the instance of the accused or under circumstances making compliance impossible. Ultimately, the guiding principle remains that guilt must be proved beyond reasonable doubt, and any reasonable doubt arising from procedural lapses must go in favour of the accused.
Also Read: Effect of Non-production of case property at trial stage