Applicant above-named, being aggrieved by judgment dated 26th May, 1980 of the learned Additional Sessions Judge, Kandhkot, in. Criminal Appeal No. 16 of 1979, by which the conviction and sentence of the trial Court under section 43 (3), Abkari Act awarded to the apple--cant was maintained, has preferred this Revision Petition on the facts and grounds mentioned in the above application.
2. The facts of this case are that the Excise Inspector received information, that the applicant was carrying about 4 gallons of country--made liquor on his bicycle. The said Excise Inspector m the presence of the mashirs secured the said liquor from the applicant and on his return from the site where he seized the said liquor, he lodged F. I. R. And there--after challaned the applicant in the Court of Civil Judge & F. C. M., Kandhkot, who by his judgment dated 25th July, 1979 convicted the applicant under section 43 (3), Abkari Act and sentenced him to suffer R. I. For six months and a fine of Rs. 500 in default to suffer further imprisonment for 3 months.
3. The main contention, that was urged by the learned Advocate for the applicant before me was that the only independent mashir of recovery namely P. W. Akbar, did not support the prosecution case, but in spite of this, he was not declared hostile. The trial Court ignoring the evidence of P. W.
Akbar, the independent mashir of the recovery, accepted the statement of co-mashir Constable Abdul Karim and on the basis of evidence of this second mashir and Investigating Officer, convicted the applicant as mentioned above and as such the mandatory provisions of section 103, Cr. P. C. Have been violating by the trial Court as well as by the Appellate Court. In view of this the learned Advocate for the applicant submitted, that the conviction of the applicant cannot legally be maintained and in support of this contention the learned Advocate relied upon the case of Suleman v. State (PLD 1981 Kar. 195). The learned Advocate for the applicant further stated, that no expert witness was examined by the prosecution to prove, that the liquid ceased from the applicant was really country-made liquor and as such on the basis of the case already cited by him, he submitted, that conviction of the applicant cannot legally be maintained,
4. The learned Advocate appearing for the State on the other hand submitted, that the above Revision Application was not maintainable, as there were no legal errors apparent in the judgments in question. In this connection the State Counsel relied upon cases reported in 1978 P Cr.
L 1 496 ; PLD 1976 SC 291 and PLD 1968 Kar. 903.
5. I have gone through both the judgments of the learned lower Courts and have also perused the statements of both the mashirs and Investigating Officer, which are on record and also available in R & P of the trial Court which is before me.
6. I have gone through the statement of P. W. Mukhtiar Ali, who was only independent mashir of the alleged seizure. I find, that the said witness denied the alleged seizure in his presence and stated, that he was called at the office of the Investigating Officer, who asked him to sign certain paper, which he did and he does not know the contents of the Mashirnama produced by him. According to this witness even the applicant was not present at that time and he was a first person who signed the Mashirnama in question, which was produced as Exh. 2-A. It is significant to note, that the prosecution did not declare this witness as hostile and as such his evidence has remained unrebutted. In the face of his evidence, the statement of P. W. Abdul Karim who is an Excise Constable and a second mashir of Exh. 2-A that the Mashirnama was prepared on site cannot be relied upon. It may also be noted, that the alleged liquid seized from the 'possession of the applicant was not sent for examination to an expert to ascertain whether the same was wine as alleged. Mere reliance on the opinion of the Investigating Officer, that A the liquid seized by him was wine, in utter disregard of provision of section 45 of the Evidence Act, by both the learned lower Courts is contrary to law. Both the learned lower Courts have also not taken into consideration, the mandatory provisions of section 103, Cr. P. C. Regarding witnesses for the search and in spite-of the fact, that independent recovery mashir did not support the prosecution case and in spite of the fact that he was not declared hostile:
7. The arguments advanced by the learned counsel for the State, that the above Revision Application is not maintainable has no force, in view of my above conclusion. The authorities cited by the learned counsel for the State are not applicable to the present case, as they are based on different facts.
8. Therefore, in view of the above admitted facts on record, the recovery of the alleged wine from the possession of the applicant has become doubtful. The case cited by the learned Advocate for the applicant, reported in PLD 1981 Kar. 195, fully supports the con--tention of the learned Advocate for the applicant, in respect of non-com--pliance of provisions of section 103, Cr. P. C.
And non-production of evidence of an expert, to prove that the liquid alleged to have been seized from the possession of the applicant was in fact wine. I entirely agree with the reasoning of the learned Judge in this judgment. In view of this it is obvious, that the judgments of the two lower Courts below are not consistent with a material available on record and suffer from legal infirmities and as such in my opinion, prosecution has failed to prove the case against applicant beyond reasonable doubt and consequently the judgments of the two learned lower Courts cannot be maintained and consequently are set aside. In the result, the applicant is acquitted. His bail bond is discharged.
Application is accordingly allowed.