1991 P Cr (PLP)

Muhammad Yaqoob Sindhu for Appellant Muhammad Akhtar, Addl A: G. with M. Saleem Shad for the State. Date of hearing: 4th November 1990. Mr. Muhammad Amin Chaudhry, learned Magistrate, Vehari, by his order dated 28-5-1990, has disposed of the three cases pertaining to three recoveries and for which F.I.Rs. Nos.233/87, 234/87 and 235/87 were recorded. Separate evidence was recorded in each case although the witnesses happened to be the same. While awarding the sentences it appears, the learned Magistrate did not keep in his mind that the different charges could result in different punishments. This has resulted in confusion, particularly, because the conviction has been made under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) as well as under Article 4 of the Order. It is evident that the ingredients of Article 3 of the Order are totally different from the provisions of Article 4 of the Order. During the arguments there was a suggestion that due to this mix-up and confusion in the trial the case should be remanded to the learned Magistrate with a direction that because he has recorded separate evidence in each case, he should write separate judgments. Later both the learned counsel agreed that as remand of the case would be time consuming and the sentence passed against the accused itself is two years, it would cause further harassment and inconvenience to the appellant resulting in miscarriage of justice. 1, therefore, proceed to dispose of the case on examining the evidence in the case and after reading the consolidated judgment of the learned Magistrate.

2. Although the evidence has been recorded separately, the pith and substance in all the three cases is that on 11-6-1987, a police party was on patrol duty in the area of Adda Mian Pakhi Morr. They received a secret information that the appellant was dealing in narcotics and was manufacturing liquor. On this information Abdul Ghafoor, Inspector/S.H.O. who was leader of the patrol party, sent a fake purchaser, Noor Muhammad with marked currency notes to purchase narcotic from the appellant. After a little while the fake purchaser Noor Muhammad (not examined) brought one bottle of wine, which was taken into possession by Abdul Ghafoor. Thereafter, the party proceeded to the house of the appellant and from the house recovered the articles as per Exh. P.B,., which shows one Degcha, one Karai, one Drum, one empty tin, a Choola etc. etc. A body search of the appellant was also carried by Inspector Abdul Ghafoor. As a result fifty grams of opium was recovered from his person. While the investigation was in progress the appellant offered to produce further material from the house and ultimately got recovered 500 grams of Charas, which was lying concealed in an iron box in the room. Apparently this chain of recoveries seems to be the part of same transaction and there was no occasion for the investigating officer to split these recoveries and make out three cases resulting in three different trials in which the same witnesses were produced three times. Be that as it may, all these recoveries were secured and the case was challaned and sent up for trial and the trial resulted in the conviction by the learned Magistrate. The sentence awarded to the appellant under Article 3 of the Order is three years' R.I. and fine of Rs.2,000 or in default to further undergo S.I. for two months. Again under Article 4 of the Order the sentence is two years' R.I. and fine of Rs.2,000 or in default to further suffer S.I. for two months. Both the sentences of imprisonment were ordered to run concurrently.

3. All these recoveries have been proved by P.W.3 Abdul Ghafoor, who was leader of the patrolling party and P.W.4 Wali Muhammad, an S.I. Dur Muhammad (P.W.2) has been produced as a private independent witness. He remained with the patrol party during the raid and has supported the prosecution. All these witnesses have repeated the same story and substantially corroborated each other.

4. The appellant was examined under section 342, Cr. P.C. and he has pleaded not guilty and denied the charge. In his statement in Court in answer to question that why this case is made against you, he answered as under: Further, he has also stated that: The denial,, of the recovery is not supported by any independent evidence nor any enmity is alleged against the police officers. Assuming for the sake of arguments that there is some enmity between the appellant and P.W. Dur Muhammad, the recovery is, however, proved by the two police officers. Unless specific allegation of enmity is alleged and proved against the investigating officer his evidence may be accepted. This has been a consistent practice in this Court.

5. In the present case no enmity is alleged between the appellant and any of the two police officers. As such the evidence of these two police officers remains intact and there is no dent in the prosecution case from this point of view. The denial of culpability by the accused/appellant is natural but unfortunately this bare denial is not substantiated by any evidence or circumstance.

6. The learned counsel appearing for the appellant has, however, tried to argue that so far as the charge under Article 3 is concerned, the sale through a fake purchaser has not been substantially proved. The learned counsel has also relied on a case reported in 1989 P Cr. L J. 1334, in which it has been held that prosecution based on fake purchase should not be encouraged.

7. On the question of recovery of material, which could be used for manufacture of alcohol the learned counsel for the appellant contended that the prosecution has not produced any satisfactory evidence to show that this material was being used for any unsavoury object. Contention has force. Moreover, the presence of any such material in any house would not be a conclusive evidence of the fact that the accused at the relevant time or during the relevant period was actively involved in operating a distillery for manufacturing the alcohol. In other words if some pieces of a distillery which could also be utilised for the purposes of preparation of alcohol were found lying in abandoned condition that would not, in my humble opinion, be sufficient evidence to suggest that this material was being used as `bhatti' or that accused was indulging in manufacture of alcohol at the relevant time. May be years before he may have used this material but that would not justify a conviction for manufacture of alcohol which may have been produced by the accused or some of his friends long long time before and which may be lying in the premises as a junk. There is no evidence on the record which could fulfil the requirements of Article 3 of the Order as I read it and in my opinion conviction under Article 3 of the Order cannot be sustained.

8. So far as conviction under Article 4 is concerned, the recovery of fifty grams of opium from his person and 500 grams of charas from his house has been proved beyond doubt. The sentence under Article 4 is, therefore, maintained. In the result this appeal stands dismissed. Benefit of section 382-B, Cr. P.C. is' extended to the appellant. N.H.Q./576/F.S.C. Order accordingly.