2020 PLP 89 (MLD)

SHAUKAT ALI RAKSHANI, J.

Through Criminal Appeal No.39/K of 2018, titled "Tulsi v. The State", the appellant has assailed the judgment passed on 28th of February, 2018 ("Impugned Judgment") authored by learned Judicial Magistrate-I, Matli ("Trial Court") in the FIR No.21/2017 (Ex.3-C), registered with Police Station Gulab Leghari, District Badin under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 ("Hadd Order"), whereby appellant has been convicted and sentenced to suffer 2 years and six months R.I. with fine of Rs.20,000/- or in default to further undergo S.I. for six months, questioning its legality and validity.

2. Condensly, the facts of the instant case are that Nazim Hussain Chhalgri, ASI, complainant, (P.W.1) on 28th of November, 2017 lodged an FIR (Ex.3-C) at Police Station Gulab Leghari, Badin with the averments that while he was on patrol duty alongwith his subordinate staff namely Constable Munawar Hussain (P.W.2), Constable Muhammad Hanif, and Constable Nawab Asif and DPC-1468 in his official vehicle No.SPC-409, when reached at Murad Wah Tail Mori road, he received spy information that one Tulsi has installed a country made liquor factory for sale at western side of his house in Devi Jungle, whereupon he rushed to Devi Jungle and on reaching there at 5.30 p.m., encircled the area, apprehended the appellant, known to be Tulsi son of Ramson Rawro, who was searched and Rs.150/- in total was recovered from him and also found 7 (seven) jerry canes, each containing 30 liters liquor. He added that a container of tin having 10 liters of under process liquor was kept on the stove with small pot and pipe thereon and also found two "Nadees" (clay drums) each having 100 liters under process liquor buried beneath the ground, fell apart while taking it out, resultantly the said under process liquor spilt away. According to the complainant (P.W.1), 7 (seven) plastic bottles from each Jerry Cane were obtained as samples and sealed for sending the same to the Chemical Examiner whereas the seven Jerry Canes, a tin containing unprepared liquor and other distillery articles for preparation of liquor were taken into possession through recovery memo (Ex.3-B) and formally arrested the appellant.

3. After usual investigation and receipt of Chemical Examiner (Ex.3-F), the police report (Ex.3-A) as contemplated under section 173 of The Code of Criminal Procedure [Act V of 1898] ("The Code") was submitted before the Trial Court.

4. The appellant was formally charged by the Trial Court on 11th of January, 2018 under Articles 3 and 4 of Hadd Order, to which he pleaded not guilty and claimed innocence. The prosecution in order to establish the case produced Nazim Hussain, ASI (P.W.1), Munawar Hussain Constable (P.W.2) and Anwar Ali constable (P.W.3). On closure of the prosecution evidence, appellant was examined under section 342 of The Code denying his involvement in the alleged crime. Neither he opted to record his statement on oath as envisaged under section 340(2) of The Code nor produced any defence evidence.

5. After conclusion of the trial, the appellant was convicted and sentenced in the terms mentioned in para (supra), hence this appeal.

6. I have heard Mr. Shaikh Jawaid counsel for the appellant and Mr. Zafar Ahmad Khan Additional Prosecutor General Sindh on behalf of the State and perused the record with their valuable assistance.

7. Mr. Shaikh Jawaid counsel for the appellant inter-alia contended that there are material contradictions in the statement of prosecution witnesses, referring to various portions of the statements of P.W.1 and P.W.2, who have made the entire recovery highly doubtful. He maintained that the Chemical Examiner report (Ex.3-F) has not been put to the appellant at the time of examination of the appellant under section 342 of The Code, thus the same cannot be used and read in evidence against the appellant. He added that sending the samples with delay has raised question with regard to its safe custody, making the Chemical Examiner report highly doubtful, whereupon no reliance can be placed. He contended that the provisions of section 103 of The Code have also not been complied with. In support of his contentions, he relied upon the cases reported as (i) 2017 SCMR 1710 (ii) 2017 SCMR 148 (iii) 2015 SCMR 1002, and (iv) 2001 SCMR

56. On the other hand Mr. Zafar Ahmad Khan, Additional Prosecutor General Sindh, while opposing the arguments advanced by the learned counsel for the appellant vehemently contended that the prosecution has successfully proved the charge against the appellant and the Trial Court has rightly convicted and awarded sentence to the appellant on the basis of proper appreciation of evidence, warranting no interference by this Court. He added that there is absolutely no contradictions in the deposition of prosecution witnesses. He argued that the delay in sending the parcels for analysis is not fatal to the case of the prosecution. Continuing his arguments, he added that not putting the question regarding Chemical Examiner's report (Ex.3-F), does not adversely effect the case of the prosecution, henceforth requested for dismissal of the appeal for the same being devoid of merits.

8. Meticulous recital of the evidence transpires that Nazim Hussain, AS1, complainant (P.W.1) along with Constable Munawar Hussain (P.W.2) and other staff on 28th of November, 2017, on spy information raided a premises not too far from the house of appellant, close to Devi Jungle and recovered 7 (seven) Jerry Canes of country made liquor, each containing 30 liters, besides a container of tin, having 10 liters on burning stove as well as two clay drums, each having 100 liters of under process liquor, which fell apart while taking it out of the ground as the same were buried as a course of preparation of liquor, through recovery memo (Ex.3-B). Complainant (P.W.1), who is also the investigating officer, beside being a seizing officer stated that he obtained samples in 7 (seven) plastic bottles from each Jerry Cane, which were sent to Chemical Examiner through letter dated 29th of November, 2017 (Ex.3-E) through Constable Anwar Ali (P.W.3) whereof positive report dated 30th of November, 2017 was received.

9. Scrutiny of the testimony of Nazim Hussain, ASI (P.W.1) and Munawar Hussain Constable (P.W.2) has been found to be contradictory on material points. Complainant (P.W.1), testified that the samples were obtained in "plastic bottles" whereas Munawar Hussain (P.W.2) in cross-examination referred the sample bottles as "glass bottles". Complainant (P.W.1) stated in cross-examination that the houses around were situated at a distance of 50 paces from Peeral Mori and there were many houses, whereas Munawar Hussain Constable (P.W.2) in a reply to a question denied to have seen villagers of the Kohli community nearby the place of occurrence. Complainant cum Investigating Officer (P.W.1) stated to have sent 7 (seven) bottles of sample to Chemical Examiner through Anwar Ali Constable (P.W.3) but Constable (P.W.3) when examined in court, categorically deposed that on the same day one sample was given to him coupled with the concerned documents for chemical Laboratory at Karachi, which is a crucial dent in the prosecution case, controverting the assertion of complainant (P.W.1) to have given him 7 (seven) samples. It is also case of the prosecution that a tin having 10 liters of unprepared liquor was recovered but the same was never ever sent for Chemical Examination. Record also does not reflect that the recovered articles were formally unsealed and got exhibited by tagging the same with exhibit number in the court albeit same were statedly shown to prosecution witnesses but with no specification of the articles.

10. Making reference to the Chemical Examiner Report (Ex.3-F), it may be observed that the Examiner has failed to assign any reason concluding that the suspected liquor was Ethyl Alcohol. He did not mention about the test carried out by him to render opinion contained in his report (Ex.3-F). The safe custody of the sample has also been questioned by counsel for the appellant. Complainant and Investigating Officer (P.-W.1) testified in court that on 30th of November, 2017 Anwar Ali Constable (P.W.3) was sent with the letter dated 29th of November, 2017 (Ex:3/E) to Chemical Examiner Sindh Karachi, but has not offered explanation as to why not on the day of recovery or even later on the next day the samples were not sent to Chemical Examiner, which undeniably raises suspicion with regard to its safe custody and tampering with the samples, whereupon reliance may not be safe. Be that as it may, the most serious and fatal objection of the learned counsel for the appellant was that while examining the appellant under section 342 of The Code, no question in respect of samples taken from the recovered 7(seven) Jerry Canes, sending it for Chemical Examination and ultimately receipt of the Chemical Examiner Report (Ex.3/F) has been put to him and as such on the principle of audi alteram partem, such piece of evidence cannot be used against the appellant, entitling him for acquittal. Obviously the entire structure of the case is based upon such piece of evidence. If the Chemical Examiner report is ruled out of consideration, then the entire structure would fall to earth. There is no inescapable cavil with the proposition that any piece of evidence not put to an accused at the time of examination under section 342 of The Code, could not be considered against him. Admittedly, no question as referred herein before has been put to the appellant, thus Chemical Examiner report (Ex.3/F) is ruled out of consideration. In this regard reference can be made to the cases of Imtiaz alias Taj v. State (2018 SCMR 344), Qaddan and others v. The State (2017 SCMR 148) and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710).

11. Non-association of the inhabitants of the vicinity particularly when there was advance information and complainant having multiple hats of seizing officer and Investigating Officer as in this case, have always been disapproved by the apex court, which has further weakened the case of the prosecution.

12. Undeniably, there is no other view, except that there is no need of numerous infirmities and loopholes in a case of prosecution but a single circumstance creating a reasonable doubt in a prudent mind would be sufficient enough to extend the benefit of doubt to the accused. [See; Mst.Asia Bibi v. The State (PLD 2019 SC 64), Intekhab Ahmed Abass v. The State (2018 SCMR 495)]

13. Irresistibly, in wake of the above discussion, I am of the considered view that the prosecution has failed to prove the case against the appellant beyond any shadow of doubt, henceforth, while extending the benefit of doubt to him, the appeal is allowed, impugned judgment dated 28th of February, 2018 rendered by learned Judicial Magistrate-I Matli is set aside and consequently appellant Tulsi son of Ramson Rawro is acquitted of the charges. He is present on bail. His bail bonds stand discharged. JK/30/FSC Appeal allowed.