This is a criminal revision petition against concurrent findings of learned Lower Courts, whereby the learned Civil Judge & Judicial Magistrate-I, Umer Kot, vide impugned judgment dated 31.08.2010 convicted the accused petitioner for an offence punishable under Article 4 of Prohibition (Enforcement ofHadd) Order , 1979 and sentenced him to undergo one year imprisonment for possessing contraband intoxicant in shape of locally made liquor , with benefit of Section 382-B, Cr .P.C.
Against the said conviction, the accused preferred Appeal No. 11 of 2010, which was dismissed by the learned Additional Sessions Judge, Umer Kot: in addition, an amount of Rs. 5000/- was also imposed upon the petitioner , in default whereof he was to suf fer simple imprisonment for three months.
2. Story of the prosecution case as narra ted in the F.I.R. (Ex.4-C) is that on 21.05.2010, Faqir Qurban Ali, Excise Inspector , Umerkot (complainant/I.O.) left the police station in Mobile Vehicle for patrolling alongwith his subordinates and when reached at Bus stop Jatoo Pali at 8:00 a.m. (morning), they saw a person holding a jerrican, tried to escape but he was apprehended and jerrican containing 10 litres liquor was recovered from his possession. During interrogation, he disclosed his name Mano/the petitioner and further disclosed that he used to prepare liquor in his house. He led the police party to his house and produced 04 jerricans, each containing 30 litres of unprepared wine. One pint of wine was separated for chemical examination and report. After usual investigation, he was charge sheeted. The petitioner was charged by the learned Trial Court for an offence punishable under Article 4 of Prohibition (Enforcement of Hadd) Order , 1979 (Ex.02), to which the petitioner pleaded not guilty and claimed to be tried (Ex.03).
To substantiate its case, prosecution examined PW-1 Faqir Qurban Ali, Excise Inspector (Ex.04), who produced certain documents and after examining (P.W.2) Excise Constable, Jan Muhammad (Ex.05) closed the prosecution side. The learned Trial Court .recorded the statement of accused, under Section 342, Cr.P.C. The accused vehemently denied the prosecution story by claiming his innocence.
Heard submissions made by Mr. OM Parkash H. Karmani, learned Counsel representing the petitioner and Ms. Seema Zaidi, learned Deputy Prosecutor General, representing the State on legal effect of enhancement of sentence by the learned appellate Court below , without issuing notice under Section 439(2), Cr.P.C. as well as on merits of the case.
At the very outset, Mr. OM Parkash H. Karmani, learned Counsel for the petitione r (on bail) by filing application in writing, seeks permission to argue the matter in absence of the petitioner who could not attend this Court due to severe indisposition. Learned State counsel recorded no objection. Consequently , application is allowed.
It is a cardinal principle of interpretation of statute that the words implied in a statute are to be read arid interpreted in its ordinary meanings. It is an admitted fact that the provisions of Sections 423/439, Cr.P.C. clearly demonstrate that the appellate Court cannot enhance the sentence. The question for conside ration before this Court is as to whether in exercise of inherent powers, sentence awarded to the accused/convict by the learned Trial Court can be enhanced under Section 423, Cr.P.C. or the statute has conferred powers upon the learned appellate Court to enhance the sentence under Section 439, Cr.P.C. after affording opportunity of hearing to the accused. It may be noted that Section 423, Cr.P.C. does not confer powers of enhancement of sentence of an accused upon the Court under Section 423 (1) (b) (3) of the Code of Criminal Procedure, 1898. Section 423 is reproduced as under: "423. Powers of Appellate Court in disposing of appeal.- -
(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant of his pleader , if he appears, and the Public Prosecutor , if he appears, and, in case of an appeal under Section 411-A, sub-section (2) or Section 417, the accused, if he appears, the Court may if it considers that there is no suf ficient ground for interfering, dismiss the appeal or may:
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or [sent for trial to the Court of Session of the High Court], as the case may be or find him guilty and pass sentence on him according to law;
(b) in appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2), alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of the Section 106, sub-section
(3) not so as to enhance the same.
(c) in an appeal from any other order , alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just or proper .
(2) [Omitted by Law Reforms Ordinance, 1972 Item 147, Cr .P.C.]"
Section 439, Cr.P.C. conferred revisional powers upon the High Court for enha ncement of the sentence after providing opportunity of being heard to the accused either personally or by pleader in his own defence under sub- section (2) of Section 439, Cr .P.C.
7. Converting to the merits of the case, learned Counsel representing the petitioner argued that despite the alleged recovery having been effected in shape of one jerrican of 10 litres and subsequently three jerricans of 30 litres each, one pint was taken from recovered intoxicant, without clarification! that as to whether it was taken from 10 litres can or from four 30 litres cans or it was taken from all 04 cans jointly . Moreso, the separated one pint of alcohol was allegedly recovered on 21.05 .2010 was dispatched to chemical examin er on 27.05.2010 after about six days delay without any sufficient reason or plausible cause or clarification that who was the custodian of recovered contraband for intervening period. Undeniably , it was mandatory to send the sample of the recovered intoxicant to the chemical examiner immediately and without any loss of time. Legal requirement regarding safe custody and onward transmission of sample and receipt of report is showing sending of sample to testing laboratory without specific time could not be established by the prosecution. Rule 6 of the Sindh Prohibition Rules, 1979 provides that "An Officer incharge of a Police Station shall take charge of and keep in safe custody , pending orders of Magistrate or a Prohibition Officer all articles seize under the Order , which may be delive red to him, and shall allow the Prohibition Of ficer to af fix his seal to such articles and to take samples thereof"
It appears that Rule 6 has been violated as the law stands settled on the subject that the prosecution is bound to prove safe custody and establish secure transmission of samples to the office of the Chemical Examiner . Reliance in this regard may conveniently be placed ow the dictum laid down by the august Supreme Court of Pakistan in the following reported judgments: 2012 SCMR titled Amjad Ali vs. The State, 2015 SCMR 1002 titled Ikramullah & others vs. The State, 2018 SCMR 2039 titled The State vs. Imam Bakhsh & others.
8. Case of the prosecution hinges on evidence of two police officials of Excise Department. P.W.1 Excise Inspector Faqir Qurban Ali acted as a complainant as well as Investigation Officer admitted in cross that he had not sealed the unprepared wine, neither he mentioned the colour of jerrican in the memo. of arrest or in F.I.R. He has also stated that the house of accused was katcha hut and one room and some houses were also adjacent to the house of accused. Further stated that house of accused was surrounded by a hedge and no door was affixed in the house of accused. Four jerricans each containing 30 litres of unprepared wine were recovered from the house of accused without any manufacturing equipment etc. There is nothing on record that respectables inhabitants of the vicinity were called to act as a witness of alleged recovery made from the house of the accused in non compliance of mandatory provision of Section 103, Cr.P.C. Non-association of two respectable inhabitants of the locality during search of the house, without obtaining warrant under Article 22 of the Prohibition Order , demonstrate illegality and a glaring misuse of power . Examination-in-Chief of P.W.1 Excise Inspector Faqir Qurban Ali does not transpire that the recovered intoxicant was ever produc ed before the Court. P.W.2 Excise Constable Jan Muhammad acted as Mashir of memo. of recovery (Ex.4-B) contradicted the complainant to the place of recovery by stating in cross- examination that the house of accused was consisting one katcha room.
9. Admittedly , at the time of alleged recov ery of 10 litres contraband liquor made from accused at thoroughfare, i.e., (Jatoo Pali), memo. of recovery was not prepared, as the only memo. of recovery (Ex.4-B) reflects place of wardat to be house of petitioner/ accused. The memo. of recovery (Ex.4-B) further reflects that at the time of preparation of memo, many persons gathered at the place of occurrence. There is nothing on record that what prevented the police party not to prepare the memo. of recovery of 10 litres intoxicant and during daylight the police alongwith accused proceeded for searching a dwelling house in a populated area, therefore, it was mandatory for public officer under Section 103, Cr.P.C. to associate two respectable inhabitants of the locality as witnesses to witness the search. It was alleged by the PWs that the wine was locally prepared in the house of accused but surprisingly no equipment used in preparation of contraband liquor was found in the house. It was alleged that one pint was taken from recovered contraband intoxicant, measuring 130 litres. The case of prosecution is shrouded in mystery that from which jerrican one pint was taken. Report of Chemical Examiner (F.W.4-D) placed on the record by the Excise Inspector Faqir Qurban Ali reflects receipt of one white glass bottle with two seals without showing the actual quantity . Chemical Examiner report further reflects that (100) ml fluid consumed from bottle in analysis, remaining case property had been returne d by mentioning that contents of the above bottle contains 25% V/V 43% PS as Ethyl Alcohol. Since the exact quantity of sample has also not been shown either by the complainant/ investigation officer or by the Chemical Examiner nor the pint has been defined in the statute, therefore, by consulting the Oxford English Dictionary , definition of "pint" has been described: "Pint ?n. a unit of liquid or dry capacity equal to one eighth of a gallon, in Britain equal to 0.568 litre and in the US equal to 0.473 litre (for liquid measure) or 0.551 litre (for dry measure). -Brit, informal a pint of beer .
ORIGIN ME: from OFr . pinte, of unknown origin."
10. Suffice it to say that concurrent finding s of both learned Courts are not tenable in law as the learned Trial Judge as well as appellate Court acted in oblivi on of principles of appreciation of evidence to evaluate it as well as the procedural law and discovered the probabilities with regard to the conviction of the accused. It need not to be reiterated that the duty of Courts is to administer even handed justice. The Courts on the basis of judicial experience, legal expertise and knowledge make conscious efforts to discover the truth and not to act mechanically by confining themselves only to the evidence produced by police officers along with the report prepared under Section 173 of the Code of Criminal Procedure. The Chemical Examiner report did not reflect that to whom the contraband intoxicant containing in the samples were returned and that when the chemical examination of the said intoxicant was conducted by the Chemical Examiner . It is also not clear that after making the alleged recovery with whom the contraband intoxicant was laying for about six days.
11. The concept of benefit of doubt to an accused person is deep-rooted in our country . The prosecution is duty bound to prove its case beyond the shadow of reasonable doubt and if any single or slightest doubt is created, benefit of same must go to the accused and it would be sufficient to disbelieve the prosecution story , regardless of fact whether the accused had taken any defence plea or not.
12. Whatever mentioned above, I reached at the irresistible conclusion that the prosecution has miserably failed to establish its case against the petitioner/accused beyond shadow of doubt. In the result, the revision petition is accepted, impugned judgment delivered by learned trial and appellate Courts dated 31.08.2010 and 15.09.2010 are set aside. The petitioner is on bail, his bail bond stands cancelled and surety discharged.