Possessing intoxicant

Record showed that despite prior information, the prosecution did not attempt to associate any private person to attest recovery proceedings

Recovery witness stated that complainant asked 08/10 persons to become witnesses of incident but they declined

Complainant stated that he had not associated any private witness on the spot

Recovery witness stated that the police unloaded and loaded the contraband items whereas complainant stated that vehicle was unloaded by labourers arranged by him

Federal Shariat Court observed that if that was the position, why the said labourers were not associated with recovery proceedings as witness

Non-compliance of mandatory provision of S.103, Cr.P.C., was illegally ignored by Trial Court

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Record showed that neither the case property nor the alleged samples were produced before the court to be identified and articled, hence another glaring irregularity

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

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Recovery witness stated that 538 bottles of different kinds of wine were recovered through recovery memo whereas the recovery memo spoke recovery of 5064 bottles

Recovery witness was neither declared hostile nor the second witness to recovery memo was produced

Investigating Officer admitted in cross-examination that he did not examine the case property

Complainant stated that they recovered 211 sacks containing 5064 bottles of different brands of wine

No consensus was noticed among the witnesses on quantity i.e. number of bottles, rather their statements were divergent, contradictory and conflicting

Investigating Officer was silent regarding number of bottles and statement of recovery witness and complainant were contradictory with each other and irreconcilable to the extent that if one piece of evidence was believed that was bound to belie the other

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Record showed that the incident took place at 2:30 p.m. and the report was lodged at 7:30 p.m. with no explanation whatsoever

Not only there was no explanation, rather the statement of the complainant as well as recovery witness created more doubt regarding veracity of time qua lodging report

Recovery witness stated that three hours were consumed in whole proceedings at place of incident whereas complainant stated that they consumed seven hours

As per the statement of recovery witness, there was delay of two hours without explanation

If complainant was believed than at 7:30 p.m. he was not in police station, as he remained busy up to seven hours i.e. 2:30 to 9:30 at venue, not only the delay remained unexplained, rather the very veracity of the FIR became suspicious and doubtful

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Report of Chemical Examiner revealed that the samples were sent on 13.11.2018 and the test perhaps was conducted on 10.03.2020, there was no explanation for that delay which was fatal for prosecution

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Cumulative assessment of evidence on record and overall analysis of material on record reflected that the case of the prosecution hinged on testimonies of four Police Officials wherein they had shown recovery of contraband narcotic from a vehicle driven by accused

No other person was found in the said vehicle, therefore, by no stretch of imagination it might be considered the property of driver

No evidence with regard to imports, exports, manufacture, sold or to serve any intoxicant had been brought on record against the accused

Appeal against conviction was allowed, in circumstances.

Chemical Examiner Report reflected that it was dispatched to the Chemical Examiner for analysis on 17.12.2018, thus, there was delay of 57 days in sending a common sample of recovered contraband intoxicant contained in 12 bags

Rule 6 of the Sindh Prohibition Rules, 1979 provided 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 seized under the Prohibition (Enforcement of Hadd) Order, 1979, which might 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, R. 6 had been violated as the prosecution was bound to prove safe custody and establish secure transmission of samples to the office of the Chemical Examiner

Appeal against conviction was allowed, in circumstances.

Record showed that accused was unrepresented before the Trial Court at the stage of recording of testimonies of prosecution witnesses and while recording his statement under S.342, Cr.P.C., as well

Even otherwise, the accused was not confronted to the report of Chemical Examiner in his statement recorded under S.342, Cr.P.C.

Accused was convicted solely on admission of guilt of commission of offence during his statement under S.342, Cr.P.C.

Admittedly, alleged narcotics had not been recovered from possession of the accused

To establish the ownership of recovered intoxicant exclusive or joint derivative contraband, a constructive or physical possession had not been ascertained

Occupancy with the intent to control it and legal consequences which flowed from the accusation of possession was evidence of ownership, which had never collected by the Investigating Agency nor the prosecution established ownership of recovered narcotic

Charge of possession of accused was defective

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in conviction.

Record showed that the prosecution evidence hinged on testimonies of two Police Officials, both the prosecution witnesses were neither cross-examined nor the Trial Court put questions to them

From perusal of impugned judgment, it appeared that perhaps, the trial Judge did not bother to consider legal sanctity of cross-examination

Federal Shariat Court observed that cross-examination was the great legal engine invented for the discovery of truth

Cross-examination of eye witnesses was not an empty formality, but a valuable right and best method for ascertaining the truth

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Perusal of Chemical Examiner Report revealed that five sealed white cloth parcels containing 500 grams of "Bhang" separately was received by Chemical Examiner and the samples were returned to the concerned police station

Chemical Examiner Report did not reflect that to whom the contraband intoxicant containing in the samples were returned

Said report also did not reflect that when the chemical examination of the said intoxicant was conducted by the Chemical Examiner

Not clear that after making the alleged recovery with whom the contraband intoxicant was lying for about four days

Rule 6 of Sindh Prohibition Rules, 1979 had been violated as the prosecution was bound to prove safe custody and establish secure transmission of samples to the office of Chemical Examiner

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Record showed that despite prior information, the prosecution did not attempt to associate any private person to attest recovery proceedings

Recovery witness stated that complainant asked 08/10 persons to become witnesses of incident

Complainant stated that he had not associated any private witness on the spot

Recovery witness stated that the police unloaded and loaded the contraband items whereas complainant stated that vehicle was unloaded by labourers arranged by him

If that was the position, why the said labourers were not associated with recovery proceedings as witness

Non-compliance of mandatory provision of S.103, Cr.P.C. was illegally ignored by Trial Court

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Recovery witness stated that 538 bottles of different kind of wine were recovered through recovery memo whereas the recovery memo spoke recovery of 5064 bottles

Recovery witness was neither declared hostile nor the second witness to recovery memo was produced

Investigating Officer admitted in cross-examination that he did not examine the case property

Complainant stated that they recovered 211 sacks containing 5064 bottles of different brands of wine

Not only no consensus among the witnesses on quantity i.e. number of bottles, rather their statements were divergent, contradictory and conflicting

Investigating Officer was silent regarding number of bottles and statement of recovery witness and complainant were contradictory with each other and irreconcilable to the extent that if one piece of evidence was believed that was bound to belie the other

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Record showed that the incident took place at 2:30 p.m. and the report was lodged at 7:30 p.m. with no explanation, whatsoever

Statement of the complainant as well as recovery witness created more doubt regarding veracity of time qua lodging report

Recovery witness stated that three hours were consumed in whole proceedings at place of incident whereas complainant stated that they consumed seven hours

As per the statement of recovery witness, there was delay of two hours without explanation

Not only the delay remained unexplained, rather the very veracity of the FIR became suspicious and doubtful

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Report of Chemical Examiner revealed that the samples were sent on 13.11.2018 and the test perhaps was conducted on 10.03.2020, there was no explanation for that delay which was fatal for prosecution

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Record showed that neither the case property nor the alleged samples were produced before the court identified, hence another glaring irregularity

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

Circumstances established that the prosecution had failed to prove its case against the accused

Appeal against conviction was allowed, in circumstances.

Prosecution case was that seven jerry canes, each containing 30 litres liquor, a container of tin having 10 litres of under process liquor kept on the stove with small pot and pipe thereon, two clay drums each having 100 litres under process liquor buried beneath the ground, were recovered from the premises of accused

Seven plastic bottles from each Jerry Cane were obtained as samples and sealed for sending the same to the Chemical Examiner

Complainant, who was also the Investigating Officer, besides being a seizing officer stated that he obtained samples in seven plastic bottles from each Jerry Cane, which were sent to Chemical Examiner whereof positive report was received

Scrutiny of the testimony of complainant and witness/ constable had been found to be contradictory on material points

Complainant had testified that the samples were obtained in plastic bottles whereas constable in cross-examination referred the sample bottles as glass bottles

Complainant stated in cross-examination that the houses around the relevant place were situated at a distance of 50 paces and there were many houses, whereas constable/witness had denied to have seen villagers nearby the place of occurrence

Complainant/Investigating Officer stated to have sent seven bottles of sample of Chemical Examiner through a constable but said constable when examined in court categorically deposed that on the same day one sample was given to him coupled with the concerned documents for chemical laboratory, which was a crucial dent in the prosecution case

Prosecution case was that a tin having 10 litres of unprepared liquor was recovered but the same was not sent for chemical examination

Record also did not reflect that the recovered articles were formally unsealed and got exhibited by tagging the same with exhibit number in the court albeit same were statedly shown to prosecution witnesses but with no specification of the articles

Chemical Examiner had failed to assign any reason concluding that the suspected liquor was Ethyl Alcohol

Chemical Examiner did not mention about the test carried out by him to render opinion contained in his report

Complainant and Investigating Officer testified in court that a constable was sent to Chemical Examiner, but had not offered explanation as to why not on the day of recovery or even later on the next day the samples were not sent to Chemical Examiner, which undeniably raised suspicion with regard to its safe custody and tampering with the samples, whereupon reliance might not be safe

Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

No member of the locality was cited during the recovery process, and no explanation in such regard was given by the police

Under S.103, Cr.P.C. it was mandatory to associate two members of the public in the process of recovery unless prosecution could show that it was not possible to do so under the circumstances

No explanation in such regard was given by the prosecution

Punishment provided for the offence alleged did not fall within the prohibitory clause of S. 497, Cr.P.C.

Police allegedly recovered 81 bottles of liquor, but only one bottle was sent for chemical examination by mixing 10 milliliter from each bottle

Report of chemical examiner had not been received to date, therefore, it was yet to be established whether seized material was liquor or not

Investigation was complete and accused was not required for any further investigation

No previous F.I.R. or conviction order against accused was available on the record

Case was one of further inquiry

Petition was allowed and accused was released on bail in circumstances.

Police on basis of prior information laid a check point to arrest the accused, however on seeing the police accused allegedly managed to escape, leaving behind his motorcycle, which contained 80 bottles of liquor

Accused, who was a non-Muslim, had a valid permit and authorization to keep 54 units of liquor in his possession

Articles 3 and 4 of Prohibition (Enforcement Of Hadd) Order, 1979, were not attracted to the present case in such circumstances

F.I.R. did not mention as to how much liquor was present in the 80 bottles, which were allegedly left behind by the accused

Given the fact that police party had prior information and had laid a check point to arrest the accused, question was as to how accused managed to escape in the presence of police-officials, who were armed with weapons

Record did not show that motorcycle allegedly left behind by accused belonged to him, meaning that accused was not known to the police, therefore, question was as to how police came to know that the person who managed to escape was the accused

False implication of accused could not be ruled out in such circumstances

Complainant was a police official but despite such fact F.I.R. was lodged after an inordinate delay of about 24 hours, which itself created doubt

Involvement of accused in the case was doubtful and facts available on record spoke of the mala fide on part of the police

Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.