' MUHAMMAD JEHANGIR ARSHAD, J.---This appeal is directed against the judgment dated 22-3-2012 passed by learned Magistrate section 30, Depalpur, by which the appellant Arshad Mahmood Anjum was convicted and sentenced to imprisonment as follows:- "(i) Under Article 3 of PEHO for 4 years with fine of Rs,5000 and in default whereof, he shall further undergo 6 months' S.I. The convict person is also given benefit of section 382-B, Cr. P. C.
(ii) Under Article 4 of PEHO for one year with fine of Rs,1000, in default thereof, to further undergo 15 days' S.I."
2. The appellant was arrested on 22-9-2011 in case F.I.R. No,642 of 2011 dated 21-9-2011 registered with Police Station Haveli Lakha, District Okara, for commission of offence of manufacturing, possessing and selling of liquor under Articles 3 and 4 of PEHO. According to the challan, the appellant when arrested was found in possession of 480 liters of liquor along with distilling equipment. After completion of investigation, challan was submitted before the learned trial Court and the learned trial Court after completion of trial, found the appellant guilty of both the above- mentioned charges and sentenced him as detailed above.
3. At the very outset, learned counsel for the appellant vehemently argued and rightly so that the appellant could not be convicted and sentenced to imprisonment simultaneously under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 as held by the apex Court in 1992 SCMR page 108 and by this Court in 2004 PCr.LJ 1474 holding, "conviction/sentence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, would not be sustainable in law when accused has already been convicted and sentenced under Article 3 of the said order.".
4. In view of the above noted declared legal position, this Court has no option but to set aside the conviction and sentence of the appellant under Article 4 of the said Order, and the appeal is allowed to this extent.
5. However, regarding the impugned judgment to the extent of Article 3 of the said Order, it is submitted by learned counsel for the appellant that the recoveries were effected in violation of mandatory requirement of section 103, Cr.P.C. Requiring necessary association of two respectable persons from the locality to witness the house search whereas in the present case, the Police without any legal authority, entered the house of the appellant and allegedly effected the recoveries in the presence of Police officials, which are not admissible in evidence. Learned counsel further argued that neither the case property was produced in the Court during trial nor the same was marked "exhibit". It is further argued that the entire evidence of the prosecution consisted of Police employees and no independent witness was produced to connect the appellant with the commission of the offence. Learned counsel further argued that the complainant of the case namely Muhammad Shoaib A.S.-I... Was the Investigating Officer as well as the witness of the case, which was in violation of the principles of natural justice. Learned counsel lastly argued that firstly it was a case of acquittal but if the Court considers that this was not a case of complete acquittal then at least in view of the above noted legal infirmities, the appellant was entitled concession in the matter of sentence keeping in view the fact that there' was no previous Police record against the appellant.
6. On the other hand, learned D.P.-G. For the State vehemently' opposed this appeal by arguing that that there was no ill will or mala fide on the part of the prosecution to falsely involve the appellant and noncompliance of section 103, Cr.P.C. Was at the most a technical fault but on the basis of such non-compliance, the appellant could neither be held innocent nor be acquitted from the charge especially when 480 liters of liquor was recovered from his possession and the same was verified as such by the Chemical Examiner through his report Exh.PE which has not been disputed by the appellant. Learned D.P.-G., therefore, submits that the appeal has no force and the same be dismissed.
7. Keeping in view the above noted arguments of the learned counsel, the record of the learned trial Court has been examined. So far as the contentions of the learned counsel for the parties with regard to non-compliance of the mandatory requirement of section 103, Cr.P.C., learned Counsel for the appellant in support of his contention has placed reliance on the case of "Muhammad Mansha v. The State" 1997 SCMR 617 and this Court has no reason to disagree with the above noted contention of the learned counsel for the appellant especially when the prosecution has failed to explain the reason for non-associating two respectable persons from the locality to witness the house search. In the cited judgment of the apex Court, even the recovery affected in the presence of one public witness was disbelieved whereas in the present case, all the witnesses are public servants. However, the honourable Supreme Court in the cited judgment while vitiating the recovery for non _compliance of the requirement of section 103, Cr.P.C. Was also persuaded by other facts constituting mala fide on the part of the prosecution, therefore, the cited judgment cannot be made applicable to the present case in all force especially when no mala fide has been attributed by the appellant to the prosecution or the P. Ws. But the fact remains that the mandatory requirements of section 103, Cr.P.C. Were not fulfilled without any valid justification. It is further observed that the record of the learned trial Court does not indicate that the case property was produced in the Court during trial which was also a requirement of law. However, the appellant neither produced any evidence in his defence nor properly explained the reason for his involvement in the case. The appellant in his statement under section 342, Cr.P.C. Though attributed some grudge towards the Police yet the same relates to the situation after his arrest in the case. It is also not borne out from the record that the Police had got any previous enmity with him. This Court is, therefore, satisfied that the appellant was not involved in the case with false accusation nor with any mala fide intention. The learned trial Court, therefore, rightly found him guilty of the charge.
8.
The appeal to the extent of conviction of the appellant Arshad Mahmood Anjum is, therefore, dismissed. However, keeping in view the violation of mandatory provision of section 103, Cr.P.C. And further non-production of case property before the Court during the trial, the sentence awarded to the appellant by learned trial Court under Article 3 of PEHO is reduced to 2 years' R.I. And further the punishment of fine of Rs,5000 is reduced to Rs,3000 and in default to further undergo 3 months' S.I.
Appellant shall also be entitled to benefit of section 382-B, Cr. P. C.
9. With the above modification in sentence, the appeal is dismissed.
Sentence Reduced.