2016 PLP 1674 (YLR)

SARDAR ABDUL HAMEED KHAN, J.

The above titled criminal appeal has been filed against the impugned judgment passed by District Court of Criminal Jurisdiction Hattian Bala dated 19.03.2014. A reference has also been sent by District Court of Criminal Jurisdiction Hattian Bala on difference of opinion between the learned members of the said.

2. Brief facts forming the background of the instant appeal and reference are that a case under sections 3/4 AM, The Prohibition (Enforcement of Hadd) Act, 1985 and sections 13/20/65 of the A.O. was registered against convict/appellant Abdul Hafeez on 17.02.2007 at Police Station Chinari and convict/appellant was apprehended by the police. After completion of investigation, a challan was submitted before the competent Court on 30.03.2007. The convict-appellant was examined under section 342, Cr.P.C. on 10.04.2007 where he refuted the allegation and opted for trial of the case. The learned trial Court directed the prosecution to produce evidence in support of its case. The prosecution produced 12 witnesses out of 13 P.Ws. After completion of prosecution evidence an opportunity was provided to the convict-appellant under section 342, Cr.P.C. for explaining his version. The convict-appellant pleaded that false evidence has been produced against him on account of enmity. He further contended that fake and fictitious documentary evidence was produced by the prosecution.

3. The learned trial Court after hearing the parties, convicted the appellant and awarded 5 years R.I under section 3 of The Prohibition (Enforcement of Hadd) Act, 1985 along with fine of Rs.10,000/-, in case of non-payment of fine, he shall undergo further sentence of two months S.I. Under section 4 of the said Act, sentence of 2 years R.I. along with fine of Rs.5000/-, in case of non-payment of fine, he shall undergo further sentence of 1 month S.I. He was also, convicted under section 13/20/65 A.O. for fine of Rs.5000/- in case of non-payment of fine, he shall undergo simple imprisonment of 1 month vide its judgment dated 25.03.2013. Feeling aggrieved and dissatisfied from the judgment of the trial Court, the appellant, herein, filed an appeal before District Court of Criminal Jurisdiction Hattian Bala on 26.03.2013. However, the learned 1st appellate Court after hearing the parties, recorded two different judgments wherein, the learned District Qazi (member of the Court) modified the judgment of the trial Court and convicted the appellant under section 3 of the Act for two years R.I along with fine of Rs. 5000/-, in case of default, he shall undergo 15 days S.I, under section 4 of the Act for one year along with fine of Rs.5000/-, in case of default, he shall undergo 15 days S.I. and under section 13/20/65 A.O., for fine of Rs.5000/- and in case of non-payment of fine, he shall undergo 15 days S.I. The appellant was also given the benefit of section 382-B, Cr.P.C. Whereas, the learned District Judge acquitted the convict-appellant under section 3 of the Act, and awarded the same punishment under section 4 of the said Act, as recorded by the learned District Qazi. On this difference of opinion between the learned member of the said Court, reference has been sent which is the subject matter. The convict-appellant has also filed an appeal for setting-aside the impugned judgment.

4. Khawaja Attaullah Chak, Advocate, the learned counsel for convict-appellant contended that the learned District Court of Criminal Jurisdiction Hattian fell in grave error while passing the impugned judgment. The learned counsel further contended that the judgment has been recorded in a hasty manner. The learned counsel further contended that he referred numerous cases of the higher Courts but all these judgments have not been discussed by the lower Court while recording the impugned judgment. The learned counsel further contended that the learned Court below has also not appreciated the evidence in its true perspective and reached at erroneous conclusion. The learned counsel zealously argued that the recoveries are fictitious and no independent and private witness has been associated in the recovery process. The learned counsel argued that the place of search is a private house of the appellant surrounded by many houses and thickly populated area wherein the private persons could be associated during recoveries or search. The learned counsel further contended that the statement of Sardar Tariq Khan, AC, negated the version of the prosecution and he deposed in his statement that it is true that the recoveries were not made before him and all the proceedings was done at police station. The learned counsel further contended that the recoveries were not made according to section 103, Cr.P.C. and the police officials have committed the violation of the said provision. The learned counsel further contended that the learned trial Court has referred the case law 2004 PCr.LJ 890 in its judgment on page 8 but the said authority was not applicable in the instant case. Finally, the learned counsel prayed that by accepting the appeal of the appellant, the impugned judgment of both the Courts below may be set-aside and the convict-appellant may be acquitted from the charges by referring following case law:-- 1. 1998 PCr.LJ, 1293 2. 2000 PCr.LJ 374.

5. On the other hand, Muhammad Tariq Alam, the learned A.A.G. appearing on behalf of the State supported the impugned judgments on all four corners and contended that during raid/search the time was about 5:15 a.m., of winter season and at that time it was not possible for police official to associate the local person in the recovery proceedings. The learned A.A.G. further contended that the prosecution has proved its case by producing cogent and convincing evidence and on the basis of this evidence, the learned Courts below have convicted the convict-appellant in accordance with law. Finally, the learned A.A.G. prayed that the instant appeal and reference may be dismissed and refused.

6. I have heard the learned counsel for the parties and gone through the record of the case with due care.

7. First of all I would like to reproduce section 3 of the Prohibition (Enforcement of Hadd) Act, 1985, which is as under:-- "Prohibition of manufacture etc. of intoxicants.

[(1) Subject to the provisions of the subsection (2), whoever] (a) Imports, exports, transports, manufactures or processes any intoxicant; or (b) Bottles any intoxicant; or (c) Sells or serves any intoxicant; or (d) Allows any of the acts aforesaid upon premises owned by him or in his immediate possession; shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping not exceeding thirty stripes, and shall also be liable to fine. 2[(2) Whoever-- (i) Imports, exports, transports, manufactures or, traffics in opium or coca leaf opium or coca derivatives; or (ii) finances the import, export, transport, manufacture, or trafficking of opium or coca leaf or opium or coca derivatives; shall be punishable with imprisonment for life or with imprisonment which is not less than two years and whipping not exceeding thirty stripes, and shall also be liable to fine.]

8. From perusal of aforesaid section it reveals that neither the allegation is leveled in FIR/challan nor any proof of import, export, transport, manufacturing or processing of any intoxicant; or bottles of any intoxicant; or sells or serves any intoxicant was established on record which could affirm that the convict-appellant committed any crime falling under section 3 of the aforesaid Act. The record further reveals that only the intoxicant and other material was found and recovered from his possession, hence, only section 4 of the said Act was attracted in his case and through which the convict have been awarded sentence by the Court below.

9. It will be relevant to mention here that while concluding the investigation/ challan report it was reported by I.O. that "20 bottle liquor (alcohol) and 50 gram chars were recovered from convict/ appellant and he has committed the offence under section 3/4 of The Prohibition (Enforcement of Hadd) Act, 1985 and also committed the crime under section 13/20/65, A.O., while holding 30-bore pistol in his possession without license, and the case was established against him through evidence, hence, he is being sent for trial."

10. In the examination recorded under section 242, Cr.P.C., the allegation leveled by the prosecution against convict-appellant was negated by him.

11. The point raised by learned counsel for convict-appellant that no local and civil witness was associated in recovery proceedings have been scrutinized. It reveals from record that the raid was conducted early in the morning at 5:15 am in winter days of February and at that time it was hard to associate the private person in recovery process. The mere fact that the recovery of incriminating material was effected from the accused in presence of police witnesses is no ground for disbelieving such a recovery particularly so when the presence of any independent witness at the place of recovery has not been even suggested to the prosecution witnesses by the defence. Moreover, no enmity of the PWs has been brought on record by the defense. The reliance can be placed on the case titled "Muhammad Asif v. The State" 2004 PCr.LJ 890 the relevant caption is reproduced hereunder:-- "The law now stands settled that the police witnesses are as good witnesses as any other witnesses, especially so when no enmity or motive on the part of police could not have any time or occasion to comply with the provisions of section 103, Cr.P.C. when the accused who was proclaimed offender had been arrested after having been over powered in a chase. No enmity or motive on the part of police had been shown by defence for false involvement of accused. The police officials having acted in honest and straightforward manner, credibility of their testimony could not be shaken. The conviction of accused was upheld in the circumstances. It was also observed that the police officials are as good witnesses as public witnesses unless proved to have any animus or motive for implication of the accused."

12. In view of the above dictum of the apex Court, this Court has considered the contention of the learned counsel for the convict-appellant, pertaining to non-application of the case referred above, and the Court safely reached the conclusion that the case has rightly been relied upon by the Court below. Whereas, the case law referred by the learned counsel for appellant has not direct relevance with the circumstances of the instant case, hence, need not to discuss. It may further be added that though the appellant has taken a plea of false evidence of the prosecution witnesses on account of enmity but he failed to bring on record even an iota of evidence to this effect, rather nothing has been suggested in cross-examination to point out any enmity, hence, the conviction order concurrently passed by both the Courts below does not warrant any interference by this Court. Moreover, the 1st appellate Court has taken into consideration the mitigating circumstances and concurrently passed the conviction order except with a difference on conviction under Section 3 of the said Act.

13. The learned counsel on this point with full vehemence supported the order of acquittal passed in the offence under Section 3 of the Act and zealously contended that a bare reading of the FIR and challan sheet, it is obvious that nothing has been alleged therein, regarding acts constituting offence under Section 3 of the Act, hence, the acquittal was legal right of the appellant. This argument is upheld, however, the Court is not in agreement with the learned counsel that in this eventuality this is a case, in which, the acquittal in other offence is also warranted. It is crystal clear that from the record of the case other offence has been proved by the prosecution without any reasonable doubt and by reducing the sentence as well as running the sentence, concurrently the first appellate Court has met the ends of justice in a legal fashion, which merits no further reduction in sentences, passed by the 1st appellate Court.

14. The crux of above discussion is that the impugned judgment and sentence passed by District Court of Criminal Jurisdiction, Hattian Bala, (passed by learned District Qazi) under section 3 of The Prohibition, (Enforcement of Hadd) Act, 1985 is hereby set aside, whereas, the conviction order passed by both the members of the District Court of Criminal Jurisdiction, Hattian Bala to the extent of sentence in the offence under section 4 of the Act and 13/20/65 Arms Act are upheld, with the benefit under Section 382-B Cr.P.C. Resultantly the appeal filed by the convict-appellant as well as the Reference are disposed off in the manner indicated above.

15. The convict-appellant is on bail, therefore, by discharging the sureties, stood for the appellant, it is ordered that he shall be taken into custody, forthwith and be sent to District Jail, Muzaffarabad, where, he shall undergo the awarded sentence, with the benefit of Section 382-B, Cr.P.C. An attested copy of this judgment shall be provided to the convict-appellant, in the Court. Order announced. The file shall be consigned to record, after due completion and sending back the record of the Courts below. HBT/4/Sh.C (AJ&K) Order accordingly.