1936 P Cr (PLP)

Muhammad Ilyas Siddiqui for Petitioner (in Cr. Rev. No. 21 of 1985). Malik Rab Nawaz Noon for Petitioner (in Cr. Rev. No. 25 of 1985). Muhammad Aslam Uns for the State (in both Cases). Date of hearing: 19th May, 1985. FAKHRUDDIN H. SHAIKH, J.‑‑The above two petitioners were convicted by 1st Class Magistrate, Jhelum for offence under Article of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced R.1. for three years each and also to pay a fine of Rs.1,000 each sentence was awarded for non‑payment of the fine. Both the petitioner preferred separate appeals, frog the above judgment in the Court of Sessions Judge, who by his judgment, dated 3rd April, 1985 dismissed the appeals. The two petitioners have now preferred separate revision petitions from the above judgment of the Sessions Judge, Jhelum.

2. It may be stated at the very outset that the learned Sessions Judge was not competent to entertain the appeal from the sentence of three years recorded by the 1st Class Magistrate on 31st December, 1984. The Prohibition (Enforcement of Hadd) Order, 1979 was amended whereby it was provided that a sentence of three years or more passed by a Magistrate for any offence under the above Order, shall be appeal able to the Federal Shariat Court. For this reason alone, the judgment of the Appellate Court is liable to be set side. However, it is still to be seen whether we should interfere with the conviction and sentences recorded by the learned Magistrate, in exercise of revisional jurisdiction under section 435/439, Cr.P.C.

3. The case of the prosecution is that on 19‑9‑1983, Mr. Mukhtar Ahmed, A.S.I. and Constables Ghulam Abbas, Ghulam Muhammad and Karam Ali were standing at G.T. Road, Lahore Mor at 2‑30 p.m. Mr. Muhammad Asghar A.S.I., Reader to the S.P. came there and informed Mr. Mukhtar Ahmad that petitioner Liaqat Ali alongwith a lady had got down from a bus and were carrying a carton of liquor. Mr. Muhammad Asghar knew Liaqat Ali before. All the above police officials then went to the Lahore Chowk of the city. It is alleged that on seeing them Liaqat All petitioner ran away leaving a carton behind, while petitioner Mst. Fehmida was standing nearby who was apprehended. The carton was found to contain 45 bottles of tincture. Mst. Fehmida was arrested and the bottles were seized and sealed. However, 45 samples from each bottle were also taken and sealed separately and sent to the Chemical Examiner for examination and report. According to the report of the Examiner, the 45 samples were of "coloured diluted rectified spirit, which can be used as substitute for liquor". Petitioner Liaqat Ali was also arrested later and after completing the investigation the Police challaned the case before the learned Magistrate 1st Class, Jhelum.

4. In support of the prosecution case there is evidence of the following witnesses:‑ P.W.1 Azizullah, Constable had received some parcels on 24‑9‑1983 which he had delivered in the office of Chemical Examiner on 25‑9‑1983. P.W.2 Ilam‑ud‑Din is witness of arrest of petitioner Liaqat on 19‑8‑1983, when the petitioner was going on a cycle. The cycle was also recovered by the police. He has proved the memo. of recovery Exh.P.A. P.W.3 Muhammad Sarwar is also witness of recovery of the cycle vide memo. Exh.P.A. P.W.4 Allah Yar, H.C. had received a parcel from Mr. Mukhtar Ahmed, A.S.I. on 19‑8‑1983 which was kept by him in the Malkhana. On 24‑9‑1983, this witness had forwarded the parcel to the office of the Chemical Examiner.

5. P.W.5 Mr. Mukhtar Ahmed, A.S.I., is the complainant and has given the story as stated above. He had arrested Mst. Fehmida who was standing near the carton while petitioner Liaqat Ali had run away. He had recorded F.I.R. and investigated the case after taking into possession the 45 bottles of spirit. P.W.6 Mr. Latif Hussain Shah, A.S.I., P.W. 7 Mr. Muhammad Asghar, A.S.I. and P.W.8 Muhammad Yousaf, H. C. have also given the same story viz. that on the information of Mr. Muhammad Asghar, all of them had gone to Lahore Chowk. On seeing them petitioner Liaqat ran away leaving behind a carton containing 45 bottles of spirit. According to them petitioner Fehmida was simply standing near the carton when she was arrested.

6. So far as Mst. Fehmida is concerned, there is nothing to show that she had anything to do with the carton containing the spirit. She was at the most a companion of petitioner Liaqat. They had travelled together and had got down from the bus at the bus‑stop. None of the witnesses has stated that the carton was in possession of Mst. Fehmida or that she had knowledge about the contents of the carton. All the witnesses of the spot have deposed that it was Liaqat petitioner who had run away leaving behind the carton. Unfortunately both the Courts below have failed to apply their minds to this aspect of the case. None of the witnesses has proved that. Mst. Fehmida was in conscious possession of the carton containing 45 bottles of spirit. There being no evidence whatsoever against Mst. Fehmida connecting her with offence of possessing any intoxicant, her conviction cannot be sustained.

7. So far as Liaqat Ali is concerned, only P.W. Mr. Muhammad Asghar has stated that he had seen Liaqat and Mst. Fehmida getting down from the bus with a carton. He has not stated as to who was holding the carton. None of the witnesses has said that they had seen Liaqat holding the carton in his hand or unloading the carton from the bus: The fact that Liaqat ran away from the spot on seeing the police party, would not be sufficient to connect him with crime of possessing illicit liquor.

8. The chemical report Exh.P.E. makes the case even more doubtful. From the evidence of P.W.1 Azizullah and P.W.4 Allah Yar, it would appear that the sealed parcel containing 45 samples of the spirit, were D delivered at the office of the Chemical Examiner on 25‑9‑1983 whereas the chemical report Exh.P.E. shows that the sealed parcel was received on 10‑12‑1983. It is intriguing as to how the parcel which, according to the police, was sent to the Chemical Examiner, Lahore from Jhelum on 24‑9‑1983, was received by the office of the Chemical. Examiner on 10‑12‑1983. It is not known as to how this parcel was treated during this period of three months.

9. Both Courts below have failed to apply their minds to this aspect of the case as a result of which the case has resulted in conviction and sentence which cannot be upheld. We, therefore, allow the revision petitions, set aside the conviction and sentences and acquit both the petitioners of the offence they have been charged with. They are on bail. Their bail bonds stand discharged. S.A. Petition accepted.