1986 P Cr (PLP)

Khizar Abbas Khan for Petitioner. Bashir Parvaiz for the State. Date of hearing: 10th February, 1985. The petitioner was convicted on the 30th of September, 1984, by a Magistrate 1st Class at Pir Mahal, District Toba Tek Singh, under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to 2 years' R.I., with whipping to 10 stripes. He filed an appeal but the same was dismissed by the learned Additional Sessions Judge, Toba Tek Singh on 7th of January, 1984. He has now filed the present Revision Petition assailing the orders passed by the two Courts below.

2. The occurrence took place at 6‑00 p.m., on the 8th of December, 1983, in the area of village Chak No.687/27‑B. It was reported on the same day by Sajjad Hussain, Excise Inspector P.W.3, and a formal F.I.R., was recorded by Nisar Ahmad, Head Constable. The brief allegation made was that the accused /appellant was found distilling liquor in a grave‑yard of Chak No.68/27‑B, at about 6 p.m., when he was surprised by the raiding party, consisting of P.W.1, P.W.2, P.W.3, P.W.5 and others. The S.H.O., Ali Khan, P.W.5, took the samples of the distilled liquor, sealed it in a parcel and sent it for chemical examination. According to the report Exh. P.E. of the Chemical Examiner the substance was liquor.

3. The prosecution challaned the case and examined six witnesses in its support. Muhammad Sharif, who is a public man joined the raiding party at Pul

25. He went on foot alongwith others and found that the appellant was busy distilling illicit liquor in the graveyard. He identified him as he knew him before also. Ghulam Shabir Shah, P.W.2, A.S.I., had also accompanied the raiding party. His name is mentioned as Sabir Hussain in the F.I. R. which is stated to be a clerical mistake. He also deposed that on receiving information he, alongwith the Excise Inspector, P.W.3, Ali Khan, S.H.O. P.W.5, and others went by bus to Adda Pul

25. There they met Muhammad Sharif, P.W.1, and all went to the graveyard on foot. The appellant on seeing them ran away and could not be apprehended despite chase.

4. P.W.3, Sajjad Hussain, Excise Inspector, stated that he got the information about the distillation of the illicit liquor. He, therefore, formed the raiding party and they all went by wagon to the place of occurrence. They stopped the wagon in the graveyard. Seeing them getting down from it the appellant ran away in the opposite direction. Ali Khan, S.H.O., had investigated the case and he also accompanied the raiding party. He deposed that raiding party had gone by bus to Pul 25 and thereafter on foot to the place of occurrence. He supported the other contents of the F.I.R., also. Au the witnesses had deposed that on seeing the raiding party, the appellant ran away leaving behind his identity card. The other two witnesses P.W.5 and P.W.6 are formal witnesses. P.W.4 had recorded the F.I.R. while P.W.6 took the parcels to the Chemical Examiner.

5. The accused/appellant in his statement under section 342, Cr.P.C. denied his commission of the offence and stated that he had been involved due to enmity. He also examined three witnesses in defence. Mahmood Khan, D.W.1, is the Lambardar of Chak No.750/C.B. He stated that the S.H.O., alongwith two Constables came to his Dera and stated that he was to conduct raid on the appellant. He alongwith the Police and Pehlwan was sent to his residence but they could not find him there. The Police searched his house in his absence but did not find anything objectionable. They, however, got his identity card and went away. Syed Manzoor Hussain, D.W.3, supported D.W.1. Syed Manzoor Hussain, D.W.3, is a Lumberdar of village Shahpur. He deposed that sometime back, appellant had to become a witness in a raid which was conducted by Sejjad Hussain, against one Manzoor Jat. Sajjad Hussain statedly threatened that he shall deal with him. The trial Court accepted the prosecution version and convicted and sentenced the appellant as stated above.

6. It is contended by the learned counsel for the appellant that though P.W.1 and P.W.2 stated that the raiding party had gone on foot to the place of occurrence, yet they were contradicted by P.W.3, who categorically stated that raiding party had gone in wagon, which was stopped in the graveyard. In the view of the matter it is argued that the entire prosecution case must fail. The learned counsel for the State is not in a position to meet this objection. Undoubtedly, the members of the raiding party could not have forgotten the means by A which they reached the place of occurrence. Their statements were recorded only 6/7 months after the occurrence. Sajjad Hussain, Excise Inspector, who had arranged raiding party at least could not forget as to how they reached the place of occurrence. He is a civil servant and must have shown the expenditure of wagon in his bill. Similarly, P.W.5, who is the S.H.O. could not forget as to how he reached the place oil occurrence. He also must have stated so in the daily diary. The contradiction is not trivial or less important to be ignored.

7. Rather, the contradiction referred to above is so glaring and important that it casts a serious doubt on the prosecution case. It means that either S.H.O., was not there or Sajjad Hussain had told a lie. The statements of D.W.1 and D.W.2 how that the case is a fabrication. It is unbelievable that a person conducting such a business B had taken his identity card in the graveyard to leave it at the spot before running away. The explanation given about the identity card by D.W.1 and D.W.2 on the other hand appears to be more convincing. I am, therefore, of the view that this is a false case initiated against the appellant for a reason which may be known to the Excise Inspector or the S.H.O.

8. The upshot of the above discussion is that the appeal of the petitioner must succeed. He is, therefore, acquitted of the charge and shall be released forthwith unless he is wanted in any other case.

9. Before parting with this case I must remark that competent authority must conduct an inquiry against the Excise Inspector as well as the S.H.O. for involving an innocent person in such a case and deal with them in accordance with law. H.A.K. Revision accepted.