SYED MUHAMMAD FAROOQ SHAH, J.---By invoking extraordinary jurisdiction of this Court under Article 203-DD of the Constitution of the Islamic Republic of Pakistan read with section 410 of Criminal Procedure Code the appellants / convicts have made a prayer to set-aside the impugned judgment and to acquit them from the case / charge on grounds averred in the memo of appeal.
2. Vide impugned judgment, pronounced by the, learned Civil Judge and Judicial Magistrate-1, Kandhkot on 29.03.2019, the following conviction and sentences have been recorded for possessing, manufacturing and selling contraband liquor , punishable under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order , 1979.
UNDER ARTICLE 3 OF PROHIBITION (ENFORCEMENT OF HADD) ORDER, 1979 "1. Kathoor son of Khatan Khan under section 245(2), Cr.P.C. for the commission of offence punishable under Article 3 of Prohibition (Enforcement of Had) Order , 1979 and award him sentence to undergo simple imprisonment for the period of three (03) years and also pay fine of Rs.5,000/- and in default of such payment of fine to undergo 15 days.
2. Hadi Bux son of Khathoor Khan under section 245(2), Cr.P.C. for the commiss ion of offence punishable under Article 3 of Prohibition (Enforcement of Hadd) Order , 1979 and award him sentence to undergo simple imprisonment for the period of three (03) years and also pay fine of Rs.5000/- and in default of such payment of fine to undergo 15 days"
UNDER ARTICLE 4 OF PROHIBITION (ENFORCEMENT OF HADD) ORDER, 1979 "1. Kathoor son of Khatan Khan under section 245(2), Cr.P.C. for the commission of offence punishable under Article 4 of Prohibition (Enforcement of Hadd) Order , 1979 and award him sentence to undergo simple imprisonment for the period of two (02) years and also pay fine of Rs.5,000/- and in default of such payment of fine to undergo 15 days.
2. Hadi Bux son of Kathoor Khan under section 245(2), Cr.P.C. for the commission of offence punishable under Article 4 of Prohibition (Enforcement of Hadd) Order , 1979 and award him sentence to undergo simple imprisonment for the period of two (02) years and also pay fine of Rs.5000/- and in default of 'such payment of to undergo 15 days. All sentences shall run concurrently with benefit of section 382-B, Cr . P. C."
3. Succinct story of prosecution case as narrated in the FIR, lodged on 11.12.2018 by ASI Mehtab Ali Bijarani posted at CIA Police Station, B-Section, Kandhkot is that on the stated day, he along with his subordinate staff left police station for patrolling of different places and when reached at 'White Mosque ' he received spy information that accused Kathoor along with his sons was manufacturing and selling local wine in his house situated in village Sher Muhammad Lashari. On such information, he proceeded at pointed place along with Tiger 09 Police Force, entered in the house of accused Kathoor Khan Bhangwar and found four persons; two of them were holding jerricans and remaining two were armed with guns. On seeing the police party , they tried to escape on motorcycles but they were apprehended. Jerricans of contraband liquor and unlicensed guns were secured from their possession under proper memo of recove ry of arrest. On completion of usual investigation, challan was submitted against them in shape of final report under Section 173, Cr .P.C.
4. Trial commenced after framing of charge (Exh.2), for offences punishable under Articles 3 / 4 of Prohibition (Enforcement of Hadd) Order , 1979 wherein both the appellants pleaded not guilty and claimed to be tried. At the trial, prosecution in order to prove its case against the accused examined four police officials and thereafter statements of appellants / accused under section 342, Cr.P.C. were recorded, wherein they denied the allegations of the prosecution but neither they examined themselves under section 340(2), Cr.P.C. nor adduced defence evidence.
5. Arguments advanced by Mr. Muhammad Naeem Memon Advocate for the appellants and Mr. Zafar Ahmed Khan learned Additional Prosecution General Sindh at length are considered, impugned judgment and evidence besides material record has carefully been scanned.
6. By submitting salient legal points in favour of the appellants Mr. Muhammad Naeem Memon, argued that impugned judgment passed by the learne d Trial Court is bad in law and wrong on fact which is result of misreading and non-reading of the evidence, so much so that the learned trial Court did not consider the cross-examination which is the legal engine invented for the discovery of truth, cross-examination is not an empty formality but a valuable right to the accused, particularly in criminal cases.
Argued that, by a common Mushirnama (Exh.04/A), allegedly two illicit weapons and contraband liquor and two Motorcycles were secured. However , in separate cases registered against accused Imdad and Muhammad Ashraf, the learned Trial Court had recorded acquittal by pronouncing separate judgments on 15.06.2019. Copies of the judgments, whereby the acquittal have been recorded in the favour of above named co-accused for an offence punishable under Section 23(i)(a) of Sindh Arms Act, 2013, have been placed on record. Learned counsel raised the following points for consideration of this Court:- i) Admittedly jerrican / a drum containing 50 liters of liquor has not been sealed neither any sample had been taken from it nor it had been sent to the Chemical Examiner for analysis of contraband liquor .
Both accused persons have not been confronted in their statements recorded under Section 342, Cr.P.C. to the report of Chemical Examiner (Exh.06/A), therefore such report lost its legal sanctity or authenticity . iii) Inhabitants of the locality / neighbourhood have not been examined; despite prior information of the occurrence; no independent person participated in the alleged recovery proceedings made from a dwelling in contravention of section 103, Cr .P.C. and Section 22 of Prohibition (Enforcement of Hadd) Order , 1979. iv) Admittedly , no evidence with regard to manufacturing, processing, transportation, import / export or selling of contraband liquor had collected by the raiding party . v) Disposal of case property order under section 517, Cr .P.C. has not been passed by the Trial Court. vi) Lastly , the learned counsel contended that the prosecution has miserably failed to prove their case beyond any reasonable doubt; moreso, there are sufficient contradictions and inconsistencies among the depositions of PWs and dents in the prosecution case, which entitles the appellants to benefit of doubt not as a matter of grace but as a matter of right. vii) To support his contention, learned counsel placed his reliance on the following case laws: 1997 SCMR 1494 ; 2002 PCr.LJ 799; 2600 PCr.LJ 1812; 1997 PCr.LJ. 826; Tariq Pervaiz v. The State 1995 SCMR 1345 ; Muhammad Akram v. The State 2009 SCMR 230; Faryad Ali v. The State 2008 SCMR 1086 ; Yasin Ali alias Ghulam Mustafa v. The State 2008 SCMR 336; Muhammad Razakue v. The State 2008 PCr.LJ 149; Muhammad Shah v. The State 2010 SCMR 1009 ; Sher Dil v. The State 1999 SCMR 697; Qaddan and others v. The State 201 7 SCMR 148; Abdul Rashid v. State PLD 1975 Kar. 92; Ballia and others v. State 1985 SCMR 854; Nasarullah and another v. State 1977 PCr.LJ 132; Rahmat v. State PLD 1976 Lah. 1444; Muhammad Shafi and others v. State PLD 1987 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. Conversely , Mr. Zafar Ahmed Khan learned Additional Prosecutor General, Sindh, very frankly conceded that ingredients of Article 3(1) of Prohibition (Enforcement of Hadd) Order , 1979 pertaining to manufacturing or selling of liquor are not applicable in the peculiar facts and circumstances of the case as no evidence had been collected by the concerned raiding party to prove that the accused were found manufacturing or selling the contraband liquor , so much so that no manufacturing machinery / utensils / equipments etc were shown in the memos, lying at the place of occurrence, except a large size drum containing 50 liters of liquor , which was neither secured under proper seal nor it was sent to the Chemical Exami ner for analysis, therefore, there remains sustainability of Article 4 of Prohibition (Enforcement of Hadd) Order , 1979.
8. It is pertinent to mention that despite having advance information of the occurrence, the police raiding party did not accompany any independent person of the locality , situated in a thickly populated area. For search of a family dwelling, neither they accompanied any lady police constable nor associated neighbourer of the locality , in violation of Section 103, Cr.P.C. They also did not obtain any search warrant of dwelling in contravention of Section 22 of Prohibition (Enforcement of Hadd) Order 1979. The provisions of Section 103, Cr.P.C. are restricted to searches under Chapter VII of Cr.P.0 apply to all recoveries made by the Police Officers, more particularly , search of dwellings. By pleading their innocence and false implication, both appellants / accused in their statements recorded under section 342, Cr.P.C. asserted their false implication in this case by the police at the instance of a feudal lord of the area who is a cast-fellow of the complainant ASI Mehtab. Ali Bijarani. Furthermore, the appellants /accused persons have not been confronted to the Chemical Examiner's report, thus Chemical Examiner's report is ruled out of the consideration. In this regard reference is made to the cases reported in 2018 SCMR 344 (lmtiaz alias Taj v. State ), 2017 SCMR 148 (Qaddan and others v. The State ), 2017 SCMR 1710 (Anwar Begum v. Akhtar Hussain alias Kaka and 2 others ).
9. Suffice is to say that non-association of the inhabitants of the vicinity during search of a dwelling, particularly when there was advance information, besides alleged bitter acrimonious relations of accused persons with Nekmard of the locality , who was caste-fellow of the complainant, casts doubt on genuineness of charge sheet.
Numerous infirmities and loopholes in the prosecution case besides contradicti ons inconsistencies among the testimonies of all police officials pointed out above by the leaned counsel for the appellants are creating reasonable doubt in a prudent mind, sufficient enough to extend the benefit to the appellants. It is settled proposition of law that if a single circumstance creating a reasonable doubt would be sufficient enough to extend benefit of doubt to the accused. Reliance in this regard is placed on the cases reported in PLD 2019 SC 64 (Mst. Asia Bibi v. State ), 2018 SCMR 495 (Intekhab Ahmed Abassi v . State ).
10. From perusal of the impugned judgment, it transpires that the learned trial judge did not consider the cross- examination, which is a weapon can wield for purpose of testing the veracity of the statement made by a witness.
Suffice is to say that the prosecution has miserably failed to prove its case beyond shadow of reasonable doubt; in the result appeal is accepted. The impugned judgment being not sustainable in law is set-aside and the appellants / accused are acquitted of the charges levelled against them. They are confined in prison. The concerned.
Superintendent of Jail is directed to release them forthwith, if they are not required in any other case.