2019 P Cr (PLP)

SYED MUHAMMAD FAROOQ SHAH, J.

This Criminal Revision Petition is directed under Article 203DD of the Constitution, against the Appellate judgment, pronounced on 19.11.2014 by the learned Additional Sessions Judge-VII (West), Islamabad, in Criminal Appeal No. 54/2014, whereby the Appeal was partly allowed; consequently, the petitioners/accused were acquitted under sections 468 and 471, P.P.C. However, they were convicted and sentenced under Article 3 of Prohibition (Enforcement of Hadd), Order, 1979 with rigorous imprisonment for a period of two years and they were also liable to pay fine of Rs.5,000/- (Five thousand only); in default of payment of fine to suffer one month's SI more. They were also convicted under Article 4 of Prohibition (E of H) Order, 1979 with rigorous imprisonment for a period of one year and to pay fine of Rs. 5,000/- (five thousand only), in default of payment of fine to further undergo one month's SI. All the sentences were order to run concurrently with benefit of section 382(B), Cr.P.C.

2. A perusal of record reflects that all three above named Petitioners/accused were held guilty of the charge and convicted by the learned Judicial Magistrate Section-30 except under section 420, P.P.C. They were sentenced by the trial court as under:- "(I) The accused are convicted and sentenced under Article 3, P.E.H.O., 1979 with Rigorous Imprisonment of four (04) years and they are liable to pay fine in the tune of Rs. 5.000/- and in case of default of payment of fine, they shall further undergo one (01) month's S.I. (II) They are convicted and sentenced under Article 4, P.E.H.O., 1979 with Rigorous Imprisonment of four (04) years and they are liable to pay fine in the tune of Rs.5,000/- and in case of default of payment of fine, they shall further undergo one (01) month's S.I. (III) They are convicted under section 468, P.P.C. and to suffer four (04) years rigorous imprisonment and shall also be liable to pay Rs. 10,000/- as fine. In case of default in payment of fine they shall suffer further two (02) months' S.I. (IV) They are convicted under section 471, P.P.C. and to suffer one (01) years rigorous imprisonment and shall also be liable to pay Rs.5,000/- as fine. In case of default in payment of fine they shall suffer further one (01) month's S.I."

3. A perusal of the charge sheet reflects that the learned trial Court charged the accused persons under Article 3/4 of The Prohibition (E of H) Order, 1979 and secondly for committing an offence under sections 420, 468 and 471, P.P.C., to which the petitioners pleaded not guilty and claimed for trial. While pronouncing the judgment by the trial Court, the accused were acquitted from the charge/offence punishable under section 420 of the Pakistan Penal Code. However, the learned appellate Court exonerated the petitioners from the charge of offences punishable under sections 468 and 471, P.P.C.

4. Learned State counsel present in Court candidly submits that Article 3 of The Prohibition (E of H) Order, 1979 is not applicable in the peculiar facts of the case as admittedly no evidence had been collected by the concerned raiding party to establish that the accused were found selling the contraband liquor. In the mentioned circumstances, there remains sustainability of Article 4 of Prohibition (E of H) Order, under which the conviction and sentence was affirmed by the learned Appellate court.

5. Nutshell of the prosecution case is that on receiving the spy information on 05.02.2014 by SI/SHO Ashiq Muhammad, posted at Tarnol Police Station, Islamabad that the Petitioners/accused Raja Munir Ahmed, Shahzad Hussain and Muhammad Safdar Khan were preparing and selling intoxication/liquor in their house, situated at Dhoak Abbasi Area, he obtained search warrants (Exh.PK) from the learned Assistant Commissioner, thereby he was permitted to search the suspected house with the assistance of lady police searcher; another warrant to search the suspected place is also found available at page 85 of this file, reveals that on the same date i.e. 05.02.2014, the same Assistant Commissioner Magistrate 1st Class, Islamabad authorized and required Ms. Shazia Aurangzeb AC/Saddar Circle to enter the said suspected house along with police personnels. However, it is an admitted fact that in compliance of search warrants, neither Ms. Shazia Aurangzeb AC/Saddar Circle, nor lady searcher accompanied the police party to conduct the raid inside the suspected dwelling on next day i.e. 06.02.2014.

6. Story of the prosecution further reveals that at the time of raid of suspected house, six police officials were present and the outer door of the house was found locked and it was got opened by them tactfully and thereafter the case property viz contraband liquor, beside other manufacturing material including two cars allegedly used for transportation of narcotics were secured. On completion of usual investigation, final report under section 173, Cr.P.C. was submitted before the concerned Magistrate, who took the cognizance.

7. Trial commenced after completion of codal formalities as provided under the Code of Criminal Procedure. The accused did not plead guilty to the Charges mentioned above. To prove its' case, the prosecution examined all six police officials/PWs and thereafter, statements of the accused persons under section 342, Cr.P.C. were recorded by the trial Court, in which the accused persons professed their innocence. 8 Arguments heard. Record has carefully been scanned with the able assistance provided by the learned counsel from both sides.

9. At the very outset, following discrepancies and contradictions in the prosecution case have been pointed out by the learned counsel for the petitioners. in light of the case law attracting in the peculiar facts and circumstances of the case. i. The alleged recovered case property has not been produced in Court during trial for its identification through prosecution witnesses. ii. All accused persons have not been confronted in their statements under section 342, Cr.P.C., more particularly, to the report of chemical examiner, therefore, lost its legal sanctity. iii. Respectable inhabitants of the locality/neighborhood have not been examined, despite their availability and prior information of the occurrence, in clear violation of section 103 of The Code of Criminal Procedure. iv. Compliance of search warrant was neither made by the concerned police officials by associating lady police constable nor the Magistrate accompanied with the police party during alleged raid conducted inside the dwelling. v. Samples of the liquor allegedly separated from some pots, dispatched to the chemical examiner after inordinate delay of more than one week. vi. Complainant himself conducted the investigation, despite availability of many other officers of equal or higher ranks available at the police station. vii. No evidence with regard to selling of contraband liquor has been collected by the police, hence the learned Appellate court exonerated the accused for an offence punishable under Article 3 of Prohibition (E of H) Order, 1979. viii. Both learned lower Courts have seriously erred not to pass disposal of case property order as required under section 517 of The Code of Criminal Procedure. ix. The learned counsel pointed out contradictory statements amongst the testimonies of police officials, reproduced herein below in paragraph 14. x. Learned counsel submitted that the petitioners were remained in confinement for sufficient period of more than 8 months and 17 days. xi. To support his contention learned counsel placed his reliance on 1997 SCJ 787, 2002 SD 101, 2000 SD 539, 1997 SD 231 and 2017 SCMR 148.

10. To sum up his arguments, Mr. Tariq Mehmood Sajid Awan, learned counsel representing the petitioners. argued that prosecution has miserably failed to prove their case beyond any shadow of reasonable doubt and there are sufficient contradictions between the depositions of PWs and dents in the prosecution case, which entitle the petitioners to benefit of doubt not as a matter of grace but as a matter of right as held by the Hon'ble Supreme Court in the case reported in 1995 SCMR 1345 (Tariq Pervaiz v. The State), 2009 SCMR 230 (Muhammad Akram v. The State), 2008 SCMR 1086 (Faryad Ali v. The State) and 2008 SCMR 336 (Yasin Ali alias Ghullam Mustafa v. The State).

11. Conversely, learned state counsel supported the impugned judgment delivered by the appellate Court up to the implication of Article 4 of the Prohibition Order and submitted that since no evidence had been collected by the prosecution to establish the offence punishable under Article 3 of the said Order with regard to selling of contraband liquor, therefore ingredients of Article 3 of the said Prohibition Order are not attracting in the circumstances of the case. However, as per learned state counsel the conviction and sentenced recorded by the learned appellate Court under Article 4 of The Prohibition (E of H) Order, 1979 may be upheld.

12. Worthy submissions advanced from both side have thoroughly been considered in light of the case law applicable in the circumstances of the case. It is an admitted position that despite having advance information of the occurrence and after obtaining search warrants, one day prior to the date of occurrence, as mentioned above, the police officials did not accompany any independent persons. The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a playground, field or garden from where recovery can be made for which search is conducted. Although in strict sense the provisions of section 103 are restricted to searches under Chapter VII of Cr.P.C. it has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103, Cr.P.C. are so embedded in criminal jurisprudence of Pakistan and to universally accepted that in all criminal cases two marginal witnesses of nemo are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability, independence and impartiality. If the recovery is to be made on public thoroughfare, a bus stand or similar public places the witnesses picked up by the police from the road can be proper witnesses of recovery depending upon the facts and circumstance of the case. However, in order to ensure proper investigation and clear proof preference should be given to the witnesses of the locality, particularly witnesses who are respectable. Where witnesses are not of the locality, the Court should cautiously examine their statements. Reference in this regard is made to the cases of Abdul Rashid v. State PLD 1975 Kar. 92: Ballia and others v. State 1985 SCMR 854; Nasrullah and another v. State 1977 PCr.LJ 132; Rahmat v. State PLD 1976 Lah. 1444, Muhammad Shafi and others v. State PLD 1967 SC 167; Muhammad Khan v. Dost Muhammad PLD 1975 SC 607; Afzal v. State 1983 SCMR 1; Niaz Muhammad alias Jaja and another v. State PLD 1983 SC(AJ&K) 211: Malik Aman v. State 1986 SCMR 17; Sultan and others v. State 1987 SCMR 1177; Khair Gul v. State 1989 SCMR 491 and State v. Abba Ali Shah PLD 1988 Kar. 409.

13. Another legal aspect of the case in hand much emphasized by the learned counsel for the Appellant is that the accused has not been questioned on alleged chemical examiner's report therefore, in case of omission to confront the accused on alleged recovery under section 342, Cr.P.C. the conviction cannot be sustainable as such illegality or gross irregularity cannot be cured in light of the dicta as laid down in the cases reported in 2006 PCr.LJ 149 (Muhammad Razakue v. The State), 2010 SCMR 1009 (Muhammad Shah v. The State), 1999 SCMR 697 (Sherdil v. The State) and 2017 SCMR 148 (Qaddan and others v. The State).

14. The contradiction amongst examined police officials by the prosecution is also creating plausible doubt in a prudent mind. For the sake of convenience some portions of the depositions of prosecution witnesses highlighted by the learned counsel are reproduced as under:-

15. It is an admitted fact that the vehicles/cars which were allegedly used for transportation of contraband liquor, allegedly recovered by the police as well as the recovered narcotics have not been produced before the Court during the trial, so much so, that both learned lower Courts did not bother to pass disposal of property order as required under section 517 of The Code of Criminal Procedure. Discrepancies and material contradictions mentioned above create reasonable doubts and dents in the prosecution case with regard to the recovery of alleged contraband intoxication/liquor. It need not to be reiterated that the conviction cannot be based on high probabilities and suspicion cannot take place of the proof and since there are sufficient reasonable doubts in the prosecution case, therefore, the impugned judgment of original Court as well as of appellate Court having no legal sanctity in the eyes of law. Judged from all angles and considered from all aspects after reappraisal of evidence, I am of the considered opinion that the prosecution has miserably failed to establish this case against the petitioners/accused.

16. A perusal of impugned judgment further reveals that learned trial Court acted in oblivion of principles of appreciation of evidence in criminal trial to evaluate it and discover the probabilities with regard to the conviction of the accused. From material on record, the version of prosecution adversely affects the credibility of prosecution witnesses' testimony. There are so many circumstances discussed above creating serious doubts in the prosecution case which go to the roots of the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. Suffice it to say that cross-examination is the great legal engine invented for the discovery of truth. Opportunity to cross-examination contemplated by the law must be real, fair and reasonable cross-examination, reproduced above, was not an empty formality, but a valuable right and best method for ascertaining the truth. The right of cross-examination has from times immemorial been held to be particularly in criminal cases a valuable right to the accused. It is a weapon which an accused person or an Advocate on his behalf can wield for the purpose of testing the veracity of the statement made by a witness. Moreso, the concept of benefit of doubt to an accused person is deep rooted in our country. The prosecution is duty bound to prove its case beyond the shadow of reasonable doubt and if any single or slightest doubt is created, benefit of same must go to the accused and it would be sufficient to disbelieve the prosecution story. It is settled law that benefit of doubt would go to the accused, regardless of fact whether he had taken such plea or not.

17. In view of whatever mentioned above, a conclusion is irresistible that the prosecution had miserably failed to prove its case against all three petitioners beyond reasonable doubt. Resultantly, impugned judgments of both Learned Courts are set aside. Petitioners/accused are acquitted of all the charges levelled against them. They are on bail; their bail bonds stand cancelled and sureties discharged. Captioned Revision Petition is allowed in the above terms. Note: The learned trial court is directed to pass an appropriate legal order for disposal of the case property under section 517, Cr.P.C. in accordance with law, after affording opportunity of hearing to all concerned. HBT/31/FSC Petition allowed.