SYED MUHAMMAD FAROOQ SHAH, J.---Captioned appeal under section 417, Cr.P.0 has been directed by the State through Advocate General, Khyber Pakhtunkhwa, Peshawar , against the judgment dated 28.01.2019, handed down. by the learned Judicial Magistrate- I/Ilaqa Qazi, Swat, thereby the responden t charged in case FIR No.1044, dated 20.10.2016, under Article 3/4 of Prohibition (Enforcement of Hadd) Order , 1979, had been acquitted. A prayer to set aside the impugned judgment; beside conviction and sentence to the respondent in accordance with law has also been made.
2. Story of the prosecution case shortly is that the police party headed by Aleemullah IHC, on spy information found Fayaz Khan son of Khairati Gul, the respondent holding two gallons of local made liquor (Tharah ) in his hands, measuring 20 and 30 liters in volume respectively . From each gallon 5 ml was separated for FSL examination, which was sealed in parcel and contraband was taken into possession vide recovery memo; the respondent was arrested on the spot and booked in crime report No. 1044, registered at Police Station Mingora, District Swat on 20.10.2016 and on completion of usual investigation the challan was submitted before the competent Court of law, for trial.
3. Heard preliminary submissions advanced by Mr. Walayat Khan, Assistant Advocate General, Khyber Pakhtunkhwa for the appellant/State. We have also carefully scanned the impugned judgment, beside other material available on record. Learned State counsel argued that though the respondent was apprehended in a populated area but private persons were avoiding to associate as recovery witnesses, therefore, the evidence of prosecution depended on testimonies of police officials. Learned counsel next argued that the respondent is a habitual liquor seller , previously involved in sufficient number of similar type of crimes. However , in response to a query made by this Court, learned State counsel admitted that the respondent is a non-convict.
4. On commencement of trial, the respondent pleaded not guilty; consequently , the prosecution to prove its case examined seven prosecution witnesses, followed by statement of accused/respondent recorded under section 342, Cr.P.C.
5. Salient discrepancies, material contradictions and infirmities in the prosecution case are noted as follows:- i. Police had not been able to recover any sale proceed money from the responde nt to establish as to whether he was selling the liquor in a populated area, police could have associated witnesses of the locality as the sale of liquor was allegedly done, whereas per. PW-4/complainant Aleemullah IHC, many people available could be associated as witnesses. More so, desp ite having advance spy information, he did not accompany any private person to witness the recovery of intoxicant in compliance of section 103 Cr.P.C; more particularly , the complainant did not state that inhabitant of the locality gathered at the spot were found unwilling or refused to record their evidence. ii. Originally the respondent was charged under Article 3/4 of Prohibition (Enfo rcement of Hadd) Order 1979.
However , no evidence with regard to the offence under Article 4 of Prohibition (Enforcement of Hadd) Order 1979 is available, though the respondent has been shown involved in many cases but admittedly he was not previously convicted. iii. In criminal administration of justice, law should not be stretched in favour of the prosecution rather benefit if any, arising must go to the accused. iv. No efforts had been taken by the police to trace or locate the manufacturer , importer , exporter or processor of recovered intoxicant as at the most the respondent was a carrier . v. Both memos of recovery and arrest bore the FIR number , though admittedly both mentioned documents were allegedly prepared at the place of occurrence, prior to registration of FIR. Such fact reveals that memos of recovery and arrest were prepared after registration of the FIR, therefore, no legal sanctity can be attached to both mentioned documents, prepared after registration of crime report. vi. Two samples of liquor measuring 5 ml each had been allegedly collected from both recovered cans, dispatched to the chemical examiner after inordinate delay of four days without any explanation. vii. Case of the prosecution is that the respondent was reportedly selling intoxicant but no evidence with regard to selling of contraband liquor had been collected by police. viii. PW-6/marginal witness of recovery memo (Exh.PW -4/A) stated that the parcels as mentioned in the recovery memos have not been prepared in his presence which would suggest that neither any recovery has been made nor the alleged parcels have been prepared for FSL examination. Forwarding letter of samples to FSL reflects the same were dispatched on 20.10.2016 and delivered to the laboratory on 24.10.2016, after four days, without any explanation. ix. Respectable inhabitants of the locality/neighbor have not been examined, despite their availability and prior spy information of occurrence by the police party which is, in clear violation of sectio n 103 of The Code of Criminal Procedure.
6. It needs no reiteration that if recovery of contraband or any other incriminating article is to be made on public thoroughfare/bus stand/bazaar or similar public places, the witnesses picked up by the police from the road can be proper witnesses of recovery depending upon the facts and circumstance of the case. However , in order to ensure proper investigation and clear proof preference should be given to the witnesses of the locality , particularly witnesses who are respectable. Where witnesses are not of the locality , the Court should cautiously examine their statements. Reference in this regard is made to the cases of Abdul Rashid v. State PLD 1975 Kar. 92; Ballia and others v. State 1985 SCMR 854; Nasrallah and another v. State 1977 PCr.LJ 132; Rahmat v. State PLD 1976 Lah. 1444; Muhammad Shat and others v. State PLD 1967 SC 167; Muhammad Khan v. Dost Muhammad PLD 1975 SC 607; Afzal v. State 1983 SCMR 1; Niaz Muhammad alias Jaja and another v. State PLD 1983 SC (AJ&K) 211; Malik Aman v. State 1986 SCMR 17; Sultan and others v. State 1987 SCMR 1177; Khair Gul v. State 1989 SCMR 491 and State v . Abba Ali Shah PLD 1988 Kar . 409 .
7. Discrepancies and material contradictions mentioned above create reasonable doubts and dents in the prosecution case with regard to the recovery of alleged contraband intoxication/l iquor . The conviction cannot be based on high probabilities and suspicion cannot take place of the proof and since there are sufficient reasonable doubts in the prosecution case, therefore, the impugned judgment does not warrant in interference of this Court.
Judged from all angles and considered from all aspects after reappraisal of evidence, we are of the considered opinion that the prosecution has miserab ly failed to establish any case against the respondent/ accused beyond shadow of reasonable doubt.
8. Suffice it to say that the impugned judgment does not suffer from misreading or non-appraisal of evidence or lack of appreciation of material evidence or reception of evidence illegally or jurisd ictional defects or evidence of material nature produced by the prose cution were not recorded or the acquittal order on the face of it is contradictory or/and the order of acquitta l was based without affording opportunity to the prosecution by violating principles governing the appreciation of evidence or that the acquittal judgment is based upon surmises, suppositions and conjectures and the acquittal is based upon reasons which do not appeal to a reasonable mind.
9. Order of acquittal passed by learned trial Court which is based on correct appreciation of evidence, would not warrant interference in appeal. Accused earns double presumption of innocence with the acquittal; First, initially that till found guilty he has to be considered innocent; and second, that after his acquittal by trial Court further confirmed the presumption of innocence as held in 2012 PCr.LJ 1699 (FSC), 2013 YLR 223, 2011 PCr.LJ 1234, 2013 PCr.LJ 374 and 2002 SCMR 713, it has been held by the august Supreme Court of Pakistan that appellate court would not interfere, unless misreading of evidence, violation of legal provision s, jurisdictional defect; acquittal order on face of it being contrary is established. It shall be advantageous to mention here that the appellate Court by exercising its powers under section 417 Cr.P.C, could interfere only if the order of acquittal is based on misreading, non-appraisal of evidence or/was speculative, artificial, arbitrary and foolish as held in 2008 MLD 1007 .
In 2002 MLD 293 and 2000 YLR 190; the dicta laid down is that the order of acquittal passed by the trial Court being balanced and well-reasoned, would hardly call for interference of the appellate Court in appeal and similarly the appellate Court should not disturb acquittal if main grounds on which trial Court had based its acquittal order are reasonable and plausible, and cannot be entirely and ef fectively dislodged or demolished.
Whatever mentioned above, keeping in mind extra ordinary scope of appeal against acquittal we are of the considered opinion that it shall be better to nip in the bud rather to drag the respondent/accused in protracted proceedings, after his acquittal recorded by the learned trial Court with sound and cogent reasons. Resultantly , the appeal is dismissed in limine .