2018 PLP 292 (YLRN)

RAJA SAJJAD AHMAD KHAN, J.

The captioned appeal has been preferred against the judgment passed by the learned Additional Tehsil Court of Criminal Jurisdiction, Kotli dated 8.2.2011, whereby, the accused-respondents have been acquitted of the charge by giving them benefit of doubt.

2. Brief facts forming background of the instant appeal are that on 29.08.2008, complainant, SI/S.H.O. Police Station, Narr received telephone call from DFC/64 Mohammad Farooq, that Haqnawaz and Asif, Caste Rajpoot resident of Dhara, who are habitual intoxicant seller, are coming to Narr from Gulpur in a 2-D car bearing No.7112/AJKE, upon which at about 05:30 PM, he along with Muhammad Ajaib Khan, ASI, Altaf Hussain, IHC, Shahzad Ahmed, SI/SG and Muhammad Farooq Constable, through private vehicle reached at Maholi where the aforesaid car came from Gulpur, which was stopped. The accused persons were inquired by police party and vehicle was searched. They disclosed their names as Haqnawaz and Asif. On search of car, four bottles of alcohol Bolshaya Vodka, were recovered from the boot of Car.

3. On this report, a case in offences under sections 3/4 and 14-AM of the Prohibition (Enforcement of Hadd) Act, 1985 was registered against the accused-respondents, herein, vide FIR No.57/2008 on 29.08.2008. After completion of investigation, challan was submitted before the concerned Court. The accused-respondents were examined under section 242, Cr.P.C. They pleaded not guilty. Upon which prosecution was directed to produce evidence in support of its case. The prosecution produced six witnesses. After recording the evidence of prosecution, the accused-respondents were examined under section 342, Cr.P.C. who again denied the guilt.

4. The trial Court, after conclusion of the trial, acquitted the accused-respondents of the charge for want of proof vide its impugned judgment dated 08.02.2011; hence, this appeal.

5. Sardar Mazhar Iqbal and Mirza Muhammad Saeed, the learned Assistant Advocate General appearing on behalf of the State-appellant submitted that the Court below failed to appreciate the evidence of the parties in its true perspective and wrongly acquitted the accused-respondents of the charge. The learned State Counsel agitated that four bottles of Alcohol were recovered from possession of the accused-respondents in presence of police constables, who are reliable witnesses in the eye of law, but the trial Court committed illegality while disbelieving their evidence. The learned Counsel further contended that accused cannot be acquitted on minor contradiction in the statements while it was proved beyond doubt that the vehicle was seized at the place of occurrence and there was no doubt about the numbers of bottles of Alcohol as it was proved in the evidence. The learned State counsel also contended that the Court below acquitted the accused respondents on the ground that there was no private independent witness during recovery proceedings but deposition of a police witness, in absence of enmity, is good evidence as that of any other witness and can be relied upon. He finally submitted that the accused-respondents committed the heinous offence of possessing and selling the intoxicant; therefore, by accepting this appeal, they may be punished in accordance with law.

6. Conversely, Raja Javaid Akhtar, the learned Advocate for the respondents contended that a false and concocted case has been registered against the respondents, hence, the learned trial Court has rightly acquitted the respondents of the charges. The learned Advocate further stated that Advocate general has no power to file the instant appeal as required under law. He contended that according to under section 417, Cr.P.C. only P.P is competent to file the appeal against acquittal order. The learned Counsel submitted that no recovery was made from the accused-respondents and if for the sake of argument it is assumed that recovery was made from them, even then the prosecution failed to prove its case because according to FIR the accused was arrested on the telephonic call at about 5:00 pm at daytime but the complainant did not bother to associate some independent persons with the recovery proceedings as witnesses; therefore, such recovery is in violation of Section 103, Cr.P.C., which makes it doubtful. According to learned Counsel, there are a lot of contradictions in the statements of prosecution witnesses, who are police officials, and on the basis of mere evidence of police officials, especially when some independent witnesses could be associated with the recovery proceedings, the punishment cannot be awarded to the accused-respondents, thus requirements of section 103, Cr.P.C. is violated. The learned Counsel pointed out that according to FIR four bottles of Alcohol were shown to have recovered from the possession of accused respondents, whereas only one of the seized material was sent to Chemical Examiner after delay of 6 days; therefore, the recovery of Alcohol is seriously doubtful and it is settled principle of law that the slightest doubt appearing in the prosecution case goes in favour of the accused. The learned counsel stated that in the instant case, the complainant and investigating officer are one and the same person as such investigation is biased and not proper. Finally, the learned Counsel craved for dismissal of the appeal.

7. We have considered the respective arguments advanced on behalf of the parties and gone through the material available on record of the case and the evidence produced by the prosecution. Admittedly, SI/S.H.O. Sikandar Azam (P.W.7) on 29.08.2008, when he was at Police Station, received a telephonic call from D.F.C. that Haq Nawaz and Asif accused respondents who are habitual Intoxicant seller, are coming to Narr from Gulpur by a 2-D car bearing No.7112/AJKE. After that he along with Ajaib, ASI, Altaf Hussain I.H.C. and other constables reached at Maholi bridge, where the above mentioned car came from Gulpur, which was stopped and was searched by the Police, during search of the Car, they recovered four bottles of Alcohol from the boot of Car. It is interesting to note that he left the police station; without placing entry in the daily diary of the Police Station and no such document has been produced before the trial Court and Police record is also silent about this fact. The daily diary is an important piece of evidence, which shows the movement of police party before arresting the accused as such it has cut the root of the entire prosecution case.

8. We have also perused the evidence of complainant who has admitted in cross-examination that only a parcel of one bottle containing Alcohol was sent to Chemical Examiner, whereas it is celebrated principle of law that the entire recovered intoxicant should be sent to Chemical Examiner, because if it is not done then how it would be ascertained as to whether the remaining intoxicant was Alcohol or something else. Therefore, such like recovery cannot be believed to establish case against the accused-respondents and as per report of the chemical examiner, the sample containing Alcohol of substance was alleged to have dispatched on 30.08.2008 and it was received by him on 06.09.2008, through a letter of S.P. Police District Kotli, dated 30.08.2008. The occurrence had allegedly taken place on 29.08.2008, and no reasonable explanation is given about the delay of sending of the sample. Moreover, it is important to note that the sample of Alcohol was sent to chemical examiner by a Constable Rasab who was not cited as witness in the calendar of challan which also creates doubt about the truthfulness of the prosecution story. 9 Now it is to be seen whether in the light of available record the trial Court has rightly recorded the impugned judgment or not? In order to arrive at a just and proper conclusion of the matter, I have gone through the evidence of the prosecution and reached the conclusion that in the present case, the prosecution has failed to prove its case against the accused-respondents beyond reasonable doubt because I find force in this argument of the learned Counsel for the accused-respondents that the prosecution associated police officials with the recovery proceedings, as witnesses, whereas according to P.Ws the accused were arrested in a thickly populated area from Narr at about 5:30 pm in daylight where private persons were available but the complainant did not bother to associate some independent persons with the recovery proceedings as witnesses. In this regard, P.Ws Mohammad Farooq, Constable and Shahzad Ahmad Constables, have categorically deposed in their cross-examination that no independent person was associated with the recovery proceedings and they also accept the presence of private persons at the spot. Therefore, in view of above position, such recovery is in violation of Section 103, Cr.P.C, which makes it doubtful. Moreover, the object of associating public witnesses with the recovery proceedings is to obviate possibility of false implication of an accused. Therefore, the mandatory provisions of section 103, Cr.P.C. regarding recovery cannot be ignored on whim and caprice of Investigating Officer except to well-founded grounds and in exceptional cases.

10. We are also cognizant of the fact that deposition of a police officer, in absence of enmity, is good evidence as that of any other witness and can be relied upon, but in the instant case the police had definite purpose to arrest the accused-respondents; therefore, it was incumbent upon the police party to associate two respectable persons of the locality, as witnesses of recovery proceedings, or furnish reasonable explanation for not doing so, but Police failed to follow the provisions of Section 103,Cr.P.C, despite availability of time and other independent persons, vitiates the recovery and makes it doubtful.

11. So far the arguments of learned counsel for the accused respondents that Advocate General is not competent to file the instant appeal against the acquittal as under section 417, Cr.P.C. and only Public Prosecutor is competent to file the appeal is concerned. It was brought into notice of the Court that a notification dated 06.06.2011 issued by the Department of law, justice and parliamentary affairs of the AJK Govt. of the State of Jammu and Kashmir, in which Advocate General has given powers to file the instant appeal against acquittal order of Additional Tehsil Court of Criminal Jurisdiction, Court No.11, Kotli dated 08.02.2011. In view of the above notification and clause (d) of Rule 8 of AJK Law Department Manual, 1984, learned Advocate General was competent to file the instant appeal. The relevant rule is reproduced as under:--

8. Duties of Advocate General in criminal case:- The duties of Advocate General with regard to criminal work shall be:-- (a)

(b)

(c)

(d) The presentment of the High Court, Shariat Court and Supreme Court on behalf of the State of appeals from orders of acquittal and of applications by way of revision, reference or otherwise and the conduct by himself of such appeals and applications. Keeping in view the aforementioned legal position the argument of the learned counsel for the respondents has no substance which is hereby repelled.

12. It will not be out of place to mention here that it was enjoined upon the prosecution to prove its case against the accused-respondents beyond any shadow of reasonable doubt but the prosecution failed to do so and the trial Court has rightly pointed out the contradictions appearing in the prosecution evidence. The case of prosecution is full of more contradictions.

13. For example, P.W complainant accepts in his cross-examination that he received information in the Police Station. They came out from the Police Station, before half an hour while P.W Mohammad Ajaib Khan, A.S.I., Altaf Hussain, I.H.C. and Shahzad Ahmad constable, deposed during cross-examination that S.H.O received information about coming of accused respondents when they were on perambulation duty and came out from the Police Station. It is also interesting to note that no proof regarding ownership of vehicle in which the intoxicant material was recovered, brought on record. The prosecution in this respect kept silent. S.H.0 admitted in his deposition that the seized Car was not in the ownership of any of the accused persons. He also admitted that no previous record of involvement in the intoxicant case against accused respondents was available.

14. The argument of learned counsel for the accused-respondents has substance that complainant and investigating officer are one and the same. Without any explanation, this practice cannot be approved. Reliance can be placed on (i) 1996 PCr.LJ 483, 418 (ii), 2009 PCr.LJ 1273(b).

15. Therefore, these contradictions create serious doubt upon the prosecution story and it is celebrated principle of law that the benefit of a slightest doubt arising in the prosecution case must go to the accused. The aforesaid view finds support from a case reported as Ali Muhammad v. Muhammad Akram and another and Ali Muhammad v. Qabir Ahmed and 4 others (2014 SCR 351), wherein it has been observed as under:-- "It is settled principle of law that a slightest doubt must go to the accused. After going through the record of this case, we are of the view that this is the case of number of doubts and even a single doubt is sufficient to acquit the accused."

16. Moreover, the principles regarding appreciation of evidence in an acquittal appeal are different than that of an appeal against conviction. This view also finds support from the above quoted judgment in caption 'A' of the report as under:- "The principles regarding appreciation of evidence in appeal against an acquittal are much different than in an appeal against the conviction."

17. Therefore, the trial Court has correctly appreciated the evidence, and the argument of the learned State Counsel regarding non-appreciation of evidence is not well reasoned.

18. It is also pertinent to mention here that it spelt out from the record that Court below while passing the acquittal order has assigned the strong reasons and it can be interfered with or set aside if the Court reached the conclusion that the same is capricious, fanciful, perverse and arbitrary or has been passed against the settled principle of administration of justice whereas no such element is found in the judgment passed by the trial Court. Our this view finds support from a case reported as "Gazanfer Ali v. State and others, (2015 SCR 1042) wherein it was observed that:-- "It is consistent view of the apex Court of Pakistan as well as of this Court that an acquittal order can only be interfered with or set aside if the Court comes to the conclusion that the same is capricious, fanciful, perverse and arbitrary or has been passed against the settled principle of administration of justice."

19. It is also important to mention that after the acquittal, an accused enjoys double presumption of innocence and the acquittal order is not interfered with until and unless it is found perverse; This view is fortified from a case reported as Asia Bibi and 5 others v. Ghazanfar Ali and 3 others (2005 PCr.LJ 415), wherein it was observed as under:-- "The acquittal carries double presumption of innocence. One is initial that till found guilty accused persons are innocent and second is that Court of law having jurisdiction records order of acquittal. In such circumstances this Court would interfere only if it is proved from the record that the order of acquittal is perverse and the reasons in support of the same are artificial and ridiculous." The same view was reaffirmed in a case reported as Abid Hanif v. Muhammad Afzal and 4 others (2014 SCR 983), wherein it has been. observed in caption 'D' of the report as under:-- "It is celebrated principle of law that normally in the cases where there is a double presumption of innocence this Court is very slow in interfering with the impugned judgment and same can only be interfered with if Court comes to the conclusion that the judgment is artificial, perverse, arbitrary and shocking in nature, as the principles for appreciating the evidence in appeal against acquittal and conviction are quite different."

20. Thus, in the light of above detailed discussion, we do not find any misreading/non-reading of the evidence or legal infirmity in the impugned judgment and the conclusion drawn by the trial- Court is neither perverse nor shocking. It is based on material available on the record. Thus, the trial Court has rightly acquitted the accused-respondents of the charge while extending them the benefit of doubt vide its judgment dated 08.2.2011 which is maintained. The crux of above discussion is that finding no force in this appeal it is hereby dismissed. JK/12/Sh.C.(AJ&K) Appeal dismissed.