2021 PLP 888 (MLD)

MUHAMMAD NOOR MESKANZAI, CJ.

The instant Criminal Appeal has been filed by the convict / appellants Asghar Ali son of Muhammad Shareef, Aijaz son of Asghar and Khair Bux son of Malik Mirza against the judgment dated 22.08.2020, passed by the Civil Judge and Judicial Magistrate-XIII, Karachi West, in Crl. Case No.2354/2018, FIR No.233/2018, whereby the appellants were convicted and sentenced as under: Under Section 245(ii), Cr.P.C. for Offence punishable under Article 3 of Prohibition (Enforcement of Hadd) Order ,1979, to suffer rigorous imprisonment for three years, each and to pay fine of Rs.45,000/-, each, or in default thereof, to suffer three months simple imprisonment. They benefit of Section 382-B, Cr.P.C. shall also be awarded to accused persons.

2. Succinct story of the prosecution case as narrated by the complainant SIP Khadim Hussain of P.S. Mouchko in the FIR (Exh.08/B) is that on 10.11.2018, he along with his subordinate staff was engaged in patrolling within the jurisdiction of P.S. Mouchko. While patrolling, he received spy information that a Dumper loaded with English Whisky / Wine was coming from Hub Chowki. On such information, he along with his staff arrived at Hub River Road near Lucky Chowrangi Mouchko at about 1430 hours, where they saw a Dumper of yellow colour bearing Registration No.TUB-722 coming. On pointation of the spy informer, they stopped the Dumper. On inquiry, the person sitting on the driver seat of the Dumper, disclosed his name as Asghar Ali, the conductor disclosed his name as Aijaz, while the two persons sitting in the Dumper, disclosed their names as Muhammad Kareem and Khair Bux. The complainant associated HC Raja Naseer and PC Abdul Waheed as Mushirs / witnesses and checked the Dumper, and found 211 sacks containing 5064 bottles of English wine of different companies. He took such recovered wine in his custody and sealed them on the spot. The personal search of the accused persons culminated in recovery of Rs.300/- from accused Asghar Ali and Rs.210/- from accused Aijaz. He, then, brought the accused persons along with recovered property at P.S. Mouchko, where the instant FIR was lodged, as stated above.

3. After completion of investigation final report, under Section 173, Cr.P.C. was submitted before Court. The Trial Court framed the Charge (Exh-4) against the convict / appellants to which they pleaded not guilty and claimed for innocence.

4. In order to prove the case against the accused persons, the prosecution examined HC-Naseer Ahmed (PW-1) as Exh-5, he produced Memo of Arrest and Recovery as Exh-05/A. Inspector Muhammad Shafi (PW-2) as Exh-8, he was investigating officer of the case and produced Roznamcha Entry No.24 dated 10.11.2018 and the FIR as Exh-08/A and 08/B, respectively, he kept the entry No.33 dated 10.11.2018 regarding his departure from police station to the place of incident as Ex.08/C, Memo of the place of incident as Exh.08/D, Roznamcha Entry regarding arrival at P.S. from the place of incident as Exh-08/E, two photographs as Ex;08-F and 8-G, letter to Chemical Examiner as Exh-08/H and Chemical Examiner's Report as Exh-08/I. Complainant SIP Khadim Hussain (PW-3) was examined as Exh-9.

5. Thereafter, the prosecution closed its side vide statement Exh.10.

6. The accused in their respective statements recorded under Section 342, Cr.P.C. (Exh-11 to 13) denied the prosecution case and claimed their innocence. They did not examine themselves on oath nor led any evidence in their defence.

7. The learned counsel for appellants, inter alia, contended that there is considerable delay of more than five hours in lodging of FIR. It was next contended that according to contents of FIR no sample was separated from alleged contraband items nor any memo for such purpose was prepared. It was maintained that as per the contents of FIR the entire commodity was sealed at the venue. The statement of PW-2 i.e. I.O. confirms that "he did not examine the case property". He referred to document Exhibit 08/a which reflects that 211 sacks were sent for examination. Furthermore, PW-1 states three bottles were separated for chemical examination, whereas PW-3 states he separated some bottles for chemical examination and the report of examiner contains 6 bottles. Charge is also defective. PW-1 states that the police officials unloaded and loaded the contraband items whereas PW-3 states that he hired the services of 3/4 labourers for loading and unloading the case property. Despite prior information, no private person was associated to witness the recovery proceedings. The learned counsel submitted that in these circumstances there was no occasion for recording conviction, as such, the judgment is not sustainable.

8. The learned Additional Prosecutor General, Sindh, found it difficult to defend the impugned judgment in the given circumstances of the case and frankly conceded that conviction is not tenable.

9. I have heard the learned counsel for the parties and gone through the record with their valuable assistance.

10. The perusal of record reveals that the submissions made by the learned counsel for the appellant have got sufficient force for multiple reasons.

11. Admittedly, there is considerable delay in lodging of FIR The incident took place at 2:30 p.m and the report was lodged at 7:30 p.m. There is no explanation whatsoever. Not only there is no explanation, rather the statement of the complainant as well as PW-1 create more doubt regarding veracity of time qua lodging report. PW-1 states that "we consumed three hours in whole proceedings at place of incident" whereas PW-3 states "we consumed 07 hours." As per the statement of PW-1 there is delay of two hours without explanation, and if PW-3 complainant is believed, then at 7:30 p.m. he was not in police station, as he remained busy up to 7 hours i.e. 2:30 to 9:30 at venue. So not only the delay remains unexplained, rather the very veracity of the FIR becomes suspicious and doubtful.

12. Secondly, to prove the case, the prosecution produced 3 PWs. PW-1 stated 538 bottles of different kind of wine were recovered through recovery memo Ex:05/A, whereas the recovery memo speaks recovery of 5064 bottles. PW-1 was neither declared hostile nor the second witness to recovery memo was produced. PW-2 admitted in cross-examination "it is correct to suggest that I did not examine the case property". PW-3 stated that they recovered 211 sacks containing 5064 bottles of different brands of wine. There is not only no consensus among the PWs on quantity i.e. number of bottles, rather statements are divergent, contradictory and conflicting. PW-2 is silent regarding number of bottles and statement of PWs-1 and 3 are contradictory with each other and irreconcilable to the extent that if one piece of evidence is believed that is bound to belie the other. There is a great and unmatchable, rather unimaginable difference between 5064 and 538 bottles. It is painfully observed that the Trial Court without adhering to such inconsistent, discrepant conflicting and contradictory statements mechanically assessed the evidence and erroneously concluded that the prosecution has established its case. Of course, no cavil with the legal provision that sole and single statement of a witness is sufficient to sustain capital sentence provided it rings true and inspires confidence.

13. The FIR is silent about taking samples for the purpose of chemical examination. The letter dated 13.11.2018 reflects that the whole quantity of liquor consisting upon 211 sacks / bags containing 5064 bottles were sent to chemical examiner. PW-1 states "SIP sealed recovered wine and separated three bottles for chemical examination" whereas PW-3 states "I also sealed some bottles of wine for chemical examination. The report of examiner Exh: 08/I reads as under: "DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL. Six sealed white cloth parcels each with 03 seals and originally covered bottle of parcel No.1 itself labeled as WHITE AND MACKAY bottle of Parcel No.2 labeled as GOLD SEAL, bottle No.3 labeled as CATTOS, Bottle No.4 HIGHLAND QUEEN and bottle No.5 labeled as TEACHER Last No.6 bottle itself labeled as GRANTS, each of about 1.5 litre fully filled with brown coloured fluid, each bottle fluid having smell of alcohol. TEST PERFORMED Alcohol Strength Bottle No.1 : 43% v/v or 75% p.s. As Ethyl Alcohol:- Bottle No.2 to Bottle No.6 : 40% v/v or 69.98% p.s. 100 ml fluid consumed from above each bottle in analysis, remaining case property duly sealed is to be collected from this office, within fifteen days from the date of receipt of this report. RESULT OF EXAMINATION The contents of the above bottle No.1 contains 43% v/v or 75% p.s. AS Ethyl alcohol. Bottle No.2 to bottle No.6 each contains 40% v/v or 69.98% p.s. as Ethyl alcohol."

14. In these circumstances it can safely be concluded that prosecution failed to prove that the alleged chemical certificate relates to or can be taken as a supportive evidence for prosecution.

15. Thirdly, the report of chemical examiner reveals that the samples were sent on 13.11.2018 and the test perhaps was conducted on 10.03.2020, there is no explanation for this delay which is fatal for prosecution.

16. Fourthly, despite prior information, the prosecution did not attempt to associate any private person to attest recovery proceedings. PW.1 states "SIP asked 08/10 persons to become witnesses of incident". PW-3 states "it is correct to suggest that I have not associated any private witness on the spot". PW-1 states that the police unloaded and loaded the contraband items whereas PW-3 states vehicle was unloaded by labourers arranged by me. If this was the position, why the said labourers were not associated with recovery proceedings as witness. The non-compliance of mandatory provision of Section 103, Cr.P.C. was illegally ignored by Trial Court.

17. Fifthly, neither the case property nor the alleged samples were produced before the Court identified and articled, hence another glaring irregularity.

18. Sixthly, the Trial Court without ascertaining the fact as to how the other two persons except the driver without collecting any incriminating material against them could have been saddled with the commission of the alleged offence.

19. In the light of above discussion, I feel no difficulty to conclude that the prosecution has miserably failed to prove the case against the convict appellants. The prosecution evidence is contradictory, conflicting and irreconcilable, hence unbelievable and non-trustworthy. The Trial Court misread and misconstrued the material available on record. Resultantly the appeal is accepted, conviction and sentence recorded, vide impugned judgment dated 22.08.2020 by the Civil Judge and Judicial Magistrate-XIII Karachi West is set aside. The appellants are acquitted of the charge. They shall be released forthwith, if, not required in any other case or offence. These are the reasons for my short Order dated 12.12.2020. JK/3/FSC Appeal allowed.