Appellant Haji Amanat Ali has through this appeal challenging the judg-nent dated 06.03.2008 delivered by the learned Additional Sessions Judge. Narowal; whereby appellant was convicted under. Article 3 of the prohibition (Enforcement of Hadd) Order, 1979 and sentenced to five years R.I. with fine of Rs. 10,000/- pr in default thereof to further undergo six months simple "mprisonment.
Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
2. Brief facts of the case arising out of the FIR No. 37/2005, dated 24.04.2005 (Ex.PG) registered under Sections 322/324/337-J, PPC read with Articles 3/4 of the Prohibition (Enforcement of Hadd)
Order, 1979 with Police Station, Baddo Malhi, District Narowal on the application/complainant (Ex.PA) of Asghar Ali alias Malangi PW.1, complainant; are that on 24.04.2005 Muhammad Shafiq, Muhammad Sharif, Muhammad Siddiq, Muhammad Azeem, Muhammad Shakil. Muhammad Aslam, Imtiaz, Amjad and Kashif purchased liquor from Haji Amanat Ali accused and on taking the same Muhammad Shang, Muhammad Sharif, Muhammad Azeem and Muhammad Shakil died while the remaining became unconscious. The complainant requested for initiating of proceeding against the accused.
3. Police investigation ensued as a consequence of registration of crime report. Muhammad Ashraf, Inspector PW.10 investigated the case. He received complaint (Ex.PA) from the complainant in which he added that "due to the liquor Shafique, Sharif, Azeem and Shakil had died whereas Aslam, Imtiaz, Amjad, Kashif Ali had become senseless". He sent the complaint to the police station for registration of the case. He reached the place of occurrence where he found Muhammad Sharif, Muhammad Shafique, Muhammad Azeem and Muhammad Shakil dead. He prepared necessary documents and sent the dead bodies for post-mortem under the escort of Allah Loak, Head Constable. The PW prepared site-plans Ex.PN and Ex.PO and recorded statements of PWs under Section 161 of, Cr.P.C. He arrested accused Amanat Ali on 25.4.2005. He added Section 302 in the FIR No. 27.04.2005. During investigation the accused got recovered two bottles of liquor on 29.04.2005 which he took into possession through recovery memo. Ex.PQ. He separated samples from the bottles of liquor and sent to the Chemical Examiner. He sent the accused to judicial lock up on 30.04.2005. He also took into possession through recovery memo. Ex.PR three bottles of liquor and one small glass from the place of occurrence. He implicated Amjad, Imtiaz, Kashif and Aslam as accused persons who were involved in drinking liquor. On 24.04.2005, Allah Loak, Constable handed over to him last worn clothes of the deceased persons, which he took into possession through recovery memos. Ex.PC, Ex.PD and Ex.PF. He completed the report under Section 173 of, Cr.P.C. and submitted before the Court on 09.06.2005 requiring the accused to face trial.
4. The learned trial Court framed charge against the accused on 18.10.2005 under Section 322 of, PPC and under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979 only. The accused did not plead guilty and claimed trial.
5. The prosecution produced eleven witnesses to prove the case; however, as the gist of the evidence of the prosecution witnesses is already mentioned in the impugned judgment, therefore, the same need not be repeated at the cost of repetition.
6. After completion of prosecution witnesses, the learned trial Court recorded statement of the appellant under Section 342, Cr.P.C. on 14.12.2006 and 02.11.2007, the appellant, however, did not opt to either appear under Section 340 (2), Cr.P.C. nor produced any defence evidence.
7. On the conclusion of trial, the learned trial Court as noted above found the appellant guilty of the charge under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and punished him with imprisonment for five years R.I. and further imposed fine of Rs. 10,000/-and in default to further suffer six month S.I..He was also extended benefit of Section 382-B, Cr.P.C. Hence, this appeal.
8. At the very out set, learned counsel for the appellant argued that originally the appellant was charged under Section 322-PPC read with under Article 11 of the Prohibition (Enforcement of Hadd)
Order, 1979 but without altering the charge, the appellant was convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 which was in sheer violation of Section 232 of the, Cr.P.C., therefore, the conviction and sentence recorded by the learned trial Court against the appellant was not maintainable. Learned counsel for the appellant further argued that the prosecution has failed to establish the charge against the appellant without any shadow of doubt and the appellant had been convicted without evidence at all against him. Learned counsel further argued that in all fairness the appellant could not be held guilty of any provision of Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, therefore, the impugned judgment was liable to be set aside. .
9. On the other hand, learned DPP for State has argued that though originally the charge against the appellant was framed under Section 322, PPC and Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979 yet in view of the evidence available on the record, the appellant could be validly convicted under Article 3(b) of the Prohibition (Enforcement of Hadd) Order, 1979 and the learned trial Court rightly convicted the appellant and sentenced him. Learned DPP for State further argued that though non-framing of charge under Article was irregularity but the same was curable under Section 237, PPC, if the evidence available on the record so warranted.
10.I have considered the above noted arguments of the learned counsel for the parties, perused the record and scrutinized the evidence with the assistance of the learned counsel for the parties.
11.Admittedly, the appellant was charged under Section 322PPC as well as under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979, however, per impugned judgment as the prosecution failed to prove the charge under Section 322, PPC, therefore, he was rightly acquitted by the learned trial Court under Section 322, PPC. However, so far his conviction under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 is concerned, it is established from the evidence on record that it was the appellant who provided seven bottles of Pepsi Cola which was subsequently found containing intoxicants. In this respect, the statement of PW.8 Dr. Ahmad Saeed, Medical Officer and the report of Chemical Examiner Ex.PJ, Ex.PK, Ex.PL and Ex.PM can be referred to with advantage. It is also proved by the statement of PW. Asghar Ali alias Malangi and PW. 3 Muhammad Abbas that it was the appellant, who brought bottles of Pepsi Cola and handed over to the deceased which they drank and finally died and said bottles were subsequently found containing intoxicants known as "Methanol". I am, therefore, satisfied that the prosecution successfully brought home the charge of providing Pepsi Cola bottles containing intoxicants and the same was fully covered by Article 3(b) of the Prohibition (Enforcement of Hadd) Order, 1979, therefore, findings of the learned trial Court to the extent of convicting the appellant under Article 3(b) of the Prohibition (Enforcement of Hadd) Order, 1979 was unexceptionable. However, as originally the appellant was charged A under Article 11 of the Prohibition (Enforcement of Hadd)
Order, 1979 which provides maximum punishment of three years R.I. or with fine, therefore, awarding of sentence of five years R.I. with fine of Rs. 10,000/-under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 without formal alteration of charge was not permissible and to this extent, the grievances of the appellant that he was prejudiced through the impugned judgment was justified. I am, therefore, of the opinion that in this view of the matter; sentence of five years R.I. with fine of Rs. 10,000/- as imposed by the learned trial Court was without lawful authority, therefore, the same is altered to three years R.I. only -as provided under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979. Further as the imposition of penalty of fine under Article of the said order was not provided, therefore, imposing of fine of Rs. 10,000/- under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 without proper alteration of charge was also not lawful, hence the fine of Rs. 10,000/- as imposed by the learned trial Court is also set aside.
12.Resultantly, this appeal to the extent of conviction of the appellant under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 is dismissed, however the sentence of five years R.I. with fine of Rs. 10,000/- is converted into three years R.I. only. The appellant shall also be entitled to benefit of Section 382-B, Cr.P.C.
13.Appellant Haji Amanat Ali son of Muhammad Sharif is present in Court, he be taken into custody and be sent to concerned jail for serving out the remaining portion of his sentence.
14. Above are the reasons of my short order of even date.