1977 P Cr (PLP)

‑‑ S 43(3)‑‑Conviction, propriety of‑Prosecution story that accused carried four bottles of illicit liquor, in fold of trousers and on being challenged running with those bottles in that manner, appearing highly improbable‑No person from public joined to witness search of accused‑Case against accused, held, not free from reasonable doubt‑Conviction and sentence set aside, in circumstances. ‑.‑[Benefit of doubt]. Usman Ghani Rashid for Asstt. A.‑G. for the State. Date of hearing : 25th February 1977. The appellant has been convicted for an offence under section 43 (3), Abkari Act by the Ist Additional Sessions Judge, Jacobabad and he has been sentenced to undergo R. I. for one year. He has accordingly appealed from Jail. It is the case of the prosecution that on 22‑1‑76 Head‑Constable Muhammad Hashim of C. I. A., Jacobabad alongwith his constables Faqir Muhammad and Ghous Bux, went for patrolling in the Town; Foot‑Constable Sardar Bux also joined their party. At about 3 p.m. they found present appellant going about in unusual manner as the front portion of his shirt was bulging out. On being challenged the appellant started running when he was caught. On search 4 bottles of liquor were found hidden in the folds of his trousers. A mashirnama was then prepared regarding recovery of these bottles with Foot‑Constable Sardar Bux and Faqir Muhammad acting as mashirs. The appellant was then sent up in Court. The prosecution have examined Muhammad Hashim complainant who has produced the F. I. R. lodged by him at Jacobabad, Saddar Police Station and mashir Sardar Bux who had accompanied him and acted as mashir of recovery. The appellant was unrepresented at the trial and there had been no cross‑examination to test the veracity of their statements in Court. Ordinarily excise cases are investigated and sent up by the Excise Depart ment. In this case, Head‑Constable of C. I. A. has sent up this case on his own responsibility without the help of the excise department. The incident is said to have occurred in January at about 3 p.m. at the outskirts of Jacobabad. It has not been‑explained by Head‑Constable Muhammad Hashim why he had taken so many constables with him and gone for patrolling at that hour of the day, when he had no spy information of any type. It is also not understood why at the time of search of the appellant no one from public was present to witness the search. In any case it would not have been difficult for the Head‑Constable to procure some mashirs from the public for the purpose of this recovery. It is also hard to believe that 4 bottles of liquor could be carried in the folds of trousers and a person could run with these 4 bottles carried in that manner. The story is therefore highly improbable. The case is against the appellant is thus not free from reasonable doubt. The benefit of doubt is accordingly allowed to him in a case of this nature. The conviction and sentence passed against the appellant are set aside and his appeal is accepted. He is acquitted of the offence and he may be forthwith released if not required in any other case Appeal allowed