2022 PLP 162 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

This Criminal Revision Petition has arisen from the impugned judgment pronounced on dated 11.05.2011 by the learned Sessions Judge Mirpur Khas, whereby the conviction awarded to the petitioner by the learned trial Court under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced for a period of two years and to pay fine of Rs.2000 or in default to suffer rigorous imprisonment for one month has been confirmed. However, the benefit as provided under section 382-B, Cr.P.C. was extended to the petitioner/accused.

2. It is not out of place to mention here that petitioner/accused Ghulam Qadir, had erroneously filed Criminal Revision Petition bearing its No.S-67 of 2005 before the High Court of Sindh, Circuit Court, Hyderabad, from where the same has been transmitted to this Court on the point of jurisdiction vide order dated 23.08.2019. The Hon'ble Judge of the High Court of Sindh while passing the transfer order dated 23.08.2019, in, Criminal Revision No.S-67 of 2005 issued directions to this Court in the following manner:- "In view of above, office of this Court is directed to transmit the record of instant Criminal Revision Application to Hon'ble Federal Shariat Court of Pakistan for its disposal in accordance with law or otherwise as deemed fit by the Hon'ble Federal Shariat Court of Pakistan" (Underlining supplied) I am afraid that how the Hon'ble Judge of the High Court may issue directions to this Court in the manner indicated above. Without prejudice and with great humility while paying utmost respect to the learned Judge, binding effect of Articles 203-G and 203-GG of the Constitution of Islamic Republic of Pakistan is reproduced hereinbelow: CHAPTER-3A FEDERAL SHARIAT COURT. 203G. Bar of jurisdiction:

Save as provided in Article 203F, no court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court. "203-GG. Decision of Court binding on High Court and Courts subordinate to it. Subject to Articles 203D and 203F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all courts subordinate to a High Court."

3. The Revision Petition is admitted. Court motion notice is waived by Mr. Zafar Ahmed Khan, learned Additional Prosecutor General Sindh. Record and proceedings have already been received from the learned High Court of Sindh.

4. Arguments heard. Record perused.

5. While pleading his innocence, the petitioner submits that he is roaming in protracted proceedings before different Courts of law including Hon'ble High Court of Sindh since last about 16 years. Furthermore, his counsel hails from Hyderabad, shall not attend this Court today, due to non-payment of professional fee, etc.

6. With the able assistance rendered by the abovenamed learned law officer, the impugned judgments, evidence and record has carefully been scanned.

7. It is alleged in the FIR, lodged by the SHO Shah Nawaz Wassan on 22.08.2003 at Police Station Jhudo that from the possession of petitioner Ghulam Qadir five litters of Desi Wine in a jerrycan was secured. Such mushirnama was reduced in writing, signed by two mushirs of police officials. On acceptance of final report submitted under section 173, Cr.P.C, the trial court framed the charge that, "on 22.08.2003 at 2030 hours at deh No.317 Jhudo Police arrested you and secured one Jerrican containing 5 litters Desi wine, thereby you have committed offence punishable under Articles 3/4 P.E.H.O." It need to be reiterated that the Legislature provided an elaborate procedure for framing the Charge under section 221, Cr.P.C. It should contain all material particulars as to the time, place and specific name of the alleged offence, the manner in which offence committed and particulars of the accused to afford him an opportunity to explain the matter with which he is charged. It is not out of context to mention that framing of charge is not a routine matter or formality. Charge framed by the trial Court in this case does not reflect the place of recovery of the contraband intoxicants from the possession of accused.

8. A perusal of prosecution evidence transpires that complainant SHO Shah Nawaz (Exh.6) in his examination-in-chief stated about recovery of a plastic jerrycan containing Desi wine from the petitioner, without disclosing the quantity of contraband liquor. He has further stated that one Pawa in glass bottle from jerrycan was separated as sample for chemical examiner but again he did not mention the quantity separated from total recovered intoxicant. The report of chemical examiner (Exh-7) reflects that the sample of recovered narcotics was received by the office of chemical examiner on 15.09 2003 by hand of PC Bhudomal. PC/PW Bhudhomal has not been examined by the prosecution. There is nothing on record to show that where the contraband intoxicant was lying in between 22.08.2003 to 15.09.2003, i.e., 23 days, which is in clear violation of Rule 6, reads in the following manner: "Rule 6 of the Sindh Prohibition Rules, 1979 provides that An Officer incharge of a Police Station shall take charge of and keep in safe custody, pending the orders of Magistrate or a Prohibition Officer all articles seize under the Order, which may be delivered to him, and shall allow the Prohibition Officer to affix his seal to such articles and to take samples thereof." In the given circumstances of the case, the Rule 6 has been violated and the law stands settled on the subject that the prosecution is bound to prove safe custody and establish secure transmission of samples to the office of the Chemical Examiner. By holding the view, reliance is being placed on the dictum as laid down by the Hon'ble Apex Court in the following judgments:- 2012 SCMR 577 titled Amjad Ali v. The State 2015 SCMR 1002 titled Ikramullah and others v. The State, 2018 SCMR 2039 titled The State v. Imam Bakhsh and others.

9. The cumulative assessment of prosecution evidence transpires that P.W.1/PC Muhammad Soomar, stated that five litre wine in jerrycan was recovered from the petitioner/accused. However, P.W.2/ASI Danesingh stated in examination in chief that the jerrycan was containing one (1) litre of desi wine and one sealed quarter of wine. In reply to cross question he had stated that SHO informed him the colour of jerrycan. He further stated that he handed over all case property to the SHO of concerned police station. Complainant/SIP/SHO Shah Nawaz of Police Station Jhudo being star witness of the prosecution, without disclosing quantity of recovered contraband intoxicant admitted in cross-examination that "it is correct to suggest that I do not remember that in the mashirnama the jerrycan is of green colour. I assessed desi sharab on smell coming from the jerrycan." However, he denied the implication of petitioner/ accused due to differences with DSP Khuda Dino Khaskheli, relative of accused. He further admitted that there is no date and time under the signature of mushirnama on the sealed parcel.

10. The investigation was conducted by ASI Dhani Singh, who stated in his examination-in-chief that he recorded the FIR (Exh-5-A) and then handed over all case property to SHO. Thereafter, he recorded the statement of accused and witnesses and after usual investigation handed over the case papers to SHO. In cross-examination, he stated that the SHO informed him the colour of jerrycan. He further stated that quarter of wine was sealed in glass bottle. However, chemical examiner report (Exh-7) reflects that the parcel contained one white nip glass bottle covered with black tin lid, labelled as "superior whisky", fully filled with colour fluid with smell of alcohol. 100 ml fluid from the said bottle was consumed in analysis. The chemical examiner has also not mentioned the quantity containing in the sample of contraband intoxicant received by him. He has also not mentioned about return of remaining case property to the investigating Agency.

11. In his statement recorded under section 342, Cr.P.C., by pleading his innocence, the petitioner stated that complainant SHO Shah Nawaz was inimical to his relative ASI Khuda Dino Khaskheli and foisted Desi Sharab upon him. The accused has not been confronted to the chemical examiner's report, therefore, in light of settled principle of law the chemical report is out of consideration. Reliance in this regard may be placed on 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).

12. As per prosecution version, the petitioner was arrested from a thickly populated area and it was a case of prior information but police did not associate any independent witness of the locality to witness recovery proceeding and both the marginal witnesses of memo of recovery and arrest were police officials and sub-ordinate of the complainant. The prosecution witnesses have contradicted each other on material points but the same were not considered by the learned Trial Court, therefore, the conviction and sentence recorded by the learned Trial Court, confirmed by the learned Appellate Court was unjust, improper and result of mis-reading/non-reading of evidence. The Trial Court is the kingpin in the hierarchy system of administration of justice and must have strength to put an end to unjust while performing the sacred duties. The judicial wisdom, dignity, intellectual integrity, knowledge or few aspects through which the learned Trial Court may function successfully by inspiring confidence of all. Suffice it to say that the impugned judgments have been passed in a non-judicial manner. The scheme of law, settled by our judicial system is that the prosecution is duty bound to prove its case beyond shadow of reasonable doubt by producing convincing and confidence inspiring evidence in Court and prosecution is bound in discharging such duty in a manner as prescribed by the law. By no stretch of imagination, the conviction and sentence awarded to the petitioner by the learned Trial Court, confirmed by the learned Appellate Court may be considered legal or lawful and in accordance with the law. More particularly, the concept of benefit of doubt to an accused person is deep-rooted in our country and if any single or slightest doubt is created, benefit of same must go to the accused not as a concession but as a matter of right and it would be sufficient to disbelieve the prosecution story, regardless of the fact whether the accused had taken any defence plea or not.

13. The petitioner is present on bail in merciful condition and submits that he is roaming in different Courts since the year 2003 and delay has certainly caused him agony to such an extent that he is unable to pay the professional fee of advocates, therefore, his counsel who hails from Hyderabad is not present in Court today. This is a case of no convincing evidence adduced by the prosecution. Consequently, by accepting the Revision, I hereby set aside the impugned judgments and acquit the petitioner/accused from the charge of this case. He is present on bail, his bail bonds stand cancelled and surety discharged. He may move an application for withdrawal of surety bonds before the learned transferor Court. Copies of this judgment be sent to the Registrar of High Court of Sindh for onward transmission to the concerned learned judges for their guidance and self-evaluation. The Registrar High Court of Sindh will also bring this matter into the notice of Hon'ble Chief Justice for his kind information. JK/43/FSC Petition allowed.