SYED MUHAMMAD FAROOQ SHAH, J.----By invoking the extraordinary constitutional jurisdiction of this Court, the appellant assailed the judgment pronounced on 31st January , 2019, by the learned Civil Judge / Judicial Magistrate-II, Warah, in Crime-Report bearing No.46 of 2018 dated 20th May, 2018, registered at Police Station Warrah, District Kambar Shandad Kot, under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order , 1979; whereby the appellant-accused was convicted simultaneously under Article 3 as well as Article 4 of the Prohibition (Enforcement of Hadd) Order , 1979, to suffer simple imprisonment for a term of three years and to pay fine amounting to Rs.45000/- and in default of payment of such fine to suffer three months more under Article 3, and to suffer two years simple imprisonment under Article 4 of the Prohibition (Enforcement of Hadd) Order , 1979 and to pay fine of Rs.45,000/- in default to suffer three months more. Benefit of Section 382-B of the Code of Criminal Procedure, 1898, was extended to the appellant-accused.
2. The appellant through present appeal has called in question the legality and validity of judgment recording conviction and awarding sentences.
3. Succinct story of the prosecution case as narrated in the memo of recovery (Ex.3-A) and F.I.R. (Ex.3-C) is that on 20th May, 2018 at 1900 hours, the appellant-accused was found in possession of a donkey cart, upon which, five filled up plastic bags containing "Bhang" were available, the police party headed by complainant-A.S.I.
Muhammad Ayoub Mahoto of Police Station Warah, signalled him to stop but after seeing the police party , he ran away leaving behind 100 kilograms of "Bhang" in five plastic bags as same was taken on donkey cart for the purpose of selling. The concerned police could not succeed to arrest the appellant and submitted challan against him under Section 512 of the Code of Criminal Procedure, 1898, by treating him an absconder / proclaimed offender . Subsequently , the appellant was arrested in some other case. His arrest was also made in this case. On 19th November , 2018, supplementary challan report was submitted against him. Formal charge (Ex.02) was framed on 24th January; 2019, to which the appellant-accused pleaded not guilty and claimed to be tried. To substantiate its case, prosecution examined P.W.1-complainant/ A.S.I. Muhammad Ayoub Mahoto, who had also conducted the investigation of the case. After examining P.W.2-Zohaib Rehman, PC, the prosecution closed its side. Thereafter , the statement of appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded. At the inception of trial, the appellant did not plead his guilt and claimed to be tried but subsequently in his statement recorded under Section 342 of the Code of Criminal Procedure, 1898 (Ex.07), he admitted his guilt of commission of of fence and prayed for leniency .
4. Prosecution evidence hinges on testimonies of two police officials, both prosecution witnesses were neither cross-examined nor the learned Trial Court put questions to PWs as mandated under Article 161 of the Qanun-e- Shahadat Order , 1984.
5. The appellant by professing his innocence did not admit the commission of offence during inception of trial.
Thereafter , two prosecution witnesses were examined and subsequently in his statement recorded under Section 342, Cr.P.C., the appellant has admitted the commission of offence and pleaded guilty . He has not been served with a notice as required under Section 243, Cr.P.C. Moreso, the charge as framed by the learned Trial Court under Article 3 as well as Article 4 of Prohibition (Enforcement of Hadd) Order , 1979 and conviction has also been recorded separately under Articles 3 and 4 of PEHO, 1979.
6. Appellant was unrepresented before the trial Court at the stage of recording of testimonies of prosecution witnesses and while recording his statement under Section 342, Cr.P.C. as well. Even otherwise, the appellant was not confronted to the report of chemical examiner in his statement recorded under Section 342, Cr.P.C. The question and answers were reduced in English writing by the Trial Court while recording statement of accused under section 342, Cr.P.C. In reply to question No.5, the appellant admitted his guilt and prayed for mercy , though earlier he pleaded not guilty to the charge . The learned trial Court recorded conviction solely on admission of guilt of commission of c offence by the appellant / accused during his statement under Section 342, Cr.P.C. In the case of Iftikhar Ahmed v. The State and others reported in 2014 SCMR 7, the law laid down by the Hon'ble Supreme Court of Pakistan is reproduced as under: "We would not like to comment on the merits of the findings rendered by the learned Trial Court lest it may prejudice the case of either side during hearing of the appeal pending before the learned High Court. However , we are constrained to observe that the law laid down by this Court qua the value of the statement of the accused under section 342, Cr.P.C. when the prosecution has failed to prove its case beyond doubt escaped the notice of the learned trial Court. In Sultan Khan v. Sher Khan etc. (PLD 1991 SC 520), this Court at page 524 observed that "if the conviction of the accused is to be based solely on his statement in court this statement should be taken into consideration in its entirety . The statement of an accused should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case. In such a condition, the exculpatory part if proved to be false may be excluded."
This was reiterated in Faqir Muhammad v . State (PLD 201 1 SC 796 ) wherein it was observed as follows:- "This approach adopted by the learned Judge in chamber of the Lahore High Court, Multan Bench, Multan had been found by us to be completely offensive to the settled principle of criminal jurisprudence that if the version of the prosecution is disbelieved then the version of the incident advanced by the accused party is ordinarily not even to be looked at or considered and if it is to be considered then the same has to be accepted or rejected as a whole.
In the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139) it has been held by this Court that if the prosecution fails to establish its case against an accused person then the accused person is entitled to be acquitted even if he had admitted killing the deceased and had advanced a spec ific plea in that regard which he had failed to prove. It had also been held by this Court in the case of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520) that the statement of an accused person recorded under section 342 Cr.P.C. is to be accepted or rejected in its entirety in case the prosecution's case fails entirely . It was further held in that case that the inculpatory part of an accused person's statement can be utilized by the court only where the prosecution succeeds in establishing its case and the defence fails to establish the specific plea taken by it. This view was again affirmed in Azhar Iqbal v . State (2013 SCMR 383 )."
7. Admittedly , alleged narcotics have not been recovered from the possession of the appellant. To establish the ownership of recovered intoxicant exclusive or joint derivative contraband, constructive or physical possession had not been ascertained, therefore, occupancy with the intent to control it and legal consequences which flow from the accusation of possession is evidence of ownership, which had never collected by the investigating agency nor the prosecution established ownership of recovered narcotics, therefore, charge of possession of accused is defective.
It needs to be reiterated that the object of framing a charge is to enable the defence to concentrate its intention on a case that he has to meet and if the charge is framed in a vague manner and that necessary ingredients of the offences with which accused held responsible, then the foundation of the case viz charge is not tenable in law. It needs to be reiterated that the legislature has provided an elaborate procedure for framing the Charge under Sections 221 and 222 Cr.P.C. It should contain all material particulars as to the time, place and specific name of the alleged offence, the manner in which offence committed and particulars of the accused, to afford him an opportunity to explain the matter with which he is charged. The form of the charg e indicates that the prosecution was relying on collective responsibilities, though as per prosecution version the recovered narcotics were found from a vehicle driven by the appellant / Muhammad Bux. In the case of Arshad Mehmood Anjum v. The State reported in (2013 MLD 1068 ), it has been observed by this Court that accused cannot be convicted and sentenced to imprisonment simultaneously under Arts. 3 and 4 of the Prohibition (Enforcement of Hadd) Order 1979.
Therefore, under peculiar facts and circum stances of the case, the charge cannot be framed under Article 3 as well as under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979. Charge does not reflect the vehicle containing recovered intoxicants, includin g its registration number besides other necessary descriptions described in the memo of recovery and FIR. Since the recovery of contraband intoxicant was allegedly made from the vehicle donkey cart plied by the appellant-Muh ammad Bux, therefore, the learned Magistrate has wrongly taken the cognizance while accepting the final report under Section 173, Cr .P.C. against appellant-Muhammad Bux.
8. The learned trial Judge acted in oblivio n of principles of appreciation of evidence to evaluate it and discovered the probabilities with regard to the conviction of the accused. The cross-examina tion is not an empty formality of law but a valuable right. Cross-examination is F a weapon which a person or an accused on his behalf wield for the purpose of testing of reality of the statem ent made by a witness. If need arises the reliance may conveniently be placed on the latest authoritative pronouncement of Hon'ble Supreme Court in the case of Muhammad Jamal and others v. The State, reported as 2018 SCMR 141. Law as laid down in paragraphs 18 and 19 of the aforesaid ruling is that under Article 161 of the Qanun-e-Shahadat Order the Court has unlimited powers to put question in order to discover or obtain proper proof of relevant facts however , it shall be directed only to achieve that object alone enabling the court to reach at a just conclusion but such questions shall be carefully put to a witless in such a manner so it may not give an impression to one or the other party that the court is inclined in favour of defence. It shall be advantageous to reproduce herein below Paragraph 18 of the judgment:- "18. The law of evidence has essentially provided the manner and mode of recording statement of witnesses which cannot be bypassed under any circumst ances, otherwise the statement recorded in disregard of the mandatory provision of law would become inadmissible and of no legal worth to be relied upon.' In this regard, Chapter 10 of the Qanun-e-Shahadat Order , 1984 deals with the production and mode of examination of witnesses. Article 132 of the Act defined the examination-in-chief of a witness, the cross-examination and what is re-examination and under what circumstances the latter one has to be allowed, while the provisions of Article 133 in mandatory words provides as follows:- "Article 133. Order of examinations. (1) Witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires). re-examined.
(2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination and, if new matter is, by permission of Court, introduced in re-examination, the adverse party may further cross-examine the matter ."
9. It has been held by the Full Bench of the Federal Shariat Court in paragraphs 36 and 42, in the case of Imran Ashraf v . The State reported in (2012 YLR 325 ) as under: "36. Under Article 161 of Qanun-e-Shah adat Order , 1984, the courts have the power to put questions or order production of necessary evidence. The learned trial Court in this case could have exercised power under section 540 of the Code of Criminal Procedure as well as under Article 161 of Qanun-e-Shahadat Order , 1984. It was indeed miscarriage of justice in not invoking these legal provisions in the demanding circumstances of this case."
"42. The duty of a Court is to administer even handed justice. The Courts on the basis of judicial experience, legal expertise and knowledge make conscious effort to discover the truth whenever , they are called upon to decide a case. The courts are not required to act mechanically by confining themselves only to the evidence produced by the police officers along with the report prepared under section 173 of the Code of Criminal Procedure. The Code also empowers the Courts to summon material witnesses and also examine such persons whose evidence appears to be essential to the just decision of a given case under section 540 ibid. It is not proper exercise of jurisdiction to decide a case without availing of the opportunity provided by section 540 ibid in given circumstances of a particular case. A perusal of section 540 ibid shows that the trial Court is under an obligation to summon and examine such persons whose evidence appears to be essential to the just decision of the case. Courts are not expected to be silent spectators or mute arbitrators. Reference may be made to the case of Rehmat Ali v. The State and another 2005 YLR 742; Muhammad Niaz Khan v. The State 2000 MLD 1419 ; The State v. Iftikhar Hussain 2002 PCr.LJ 85; Maqbool v. The State 2006 PCr.LJ 110; Muhammad Murad Abro v. The State through A.G. Balochistan 2004 SCMR 966 ."
10. Cursory examination of their evidenc e reflects that on the day of occurrence at about 1900 hours, they saw donkey cart, whereupon a person namely , Muhammad Bux son of Wali Muhamm ad Wahocho-accused by caste Wahocho, resident of Village Khuda Bux Wahocho, was riding and on seen the police party , he started running on feet leaving behind the donkey cart. The contraband intoxicant was recovered under memo of recovery . P.W.1- complainant/A.S.I. Muhammad Ayoub Mahoto, produced the chemical report but he did not steep that as to whether half kilogram from each plastic bag was packed separately in five sample parcels or otherwise. A perusal of chemical examiner report (Ex.03-E) reveals that five sealed white cloth parcels containing 500 grams of "Bhang " separately was received by Chemical Examiner / Chemico-Laboratory , Sukkur at Rohri, on 24th May, 2018 and the samples were returned to the concerned police station on 25th June, 2018. The Chemical Examiner report did not reflect that to whom the contraband intoxicant containing in the samples were returned. The said report also does not reflect 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 lying for about four days. 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 the orders of Magistrate or a Prohibition Officer all articles seize under the Order , which may be delivered to him, and shall allow the Prohibition Officer to affix his seal to such articles and to take samples thereof."
In the given circumstances of the case, the 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 . By holding the view, reliance is being placed on the dictum as laid down by the Hon'ble apex Court in reported judgments viz., 2012 SCMR 577 titled Amjad Ali v. The State, 2015 SCMR 1002 titled Ikramullah and others v . The State, 2018 SCMR 2039 titled The State v . Imam Bakhsh and others.
11. Memo of recovery of contraband narcotics reveals that 100 kilogram narcotics was recovered from a donkey cart, containing in five bags of 20 kilogram each, half kilogram from each bag was separated for chemical examination. However , detail of case property as mentioned in the memo of recovery (Ex.03-A) is five bags, each weighing 20 kilogram and half kilogram from each bag was separated as sample; one donkey cart and cash Rs.18000/-. However , the impugned judgment did not reflect property order regard ing disposal of donkey cart and amount of Rs.18000/- .
12. From perusal of impugned judgment, it appears that perhaps, the learned trial Judge did not bother to consider legal sanctity of cross-examination. Suffice it to say that cross-examination is the great legal engine invented for the discovery of truth. Cross-examination of eye witnesses was not an empty formality , but a valuable right and best method for ascertaining the truth. The right of cross-examination has from times immemorial been held to be particularly in criminal cases a valuable right to the accused. It is a weapon which an accused person or an advocate on his behalf can wield for the purpose of testing the veracity of the statement made by a witness.
Moreso, 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 . It is settled law that benefit of doubt would go to the accused, regardless of fact whether he had taken any defence plea or not.
13. The conclusion is irresistible that the prosecution has miserably failed to establish its case against the appellant / accused. Consequently , by a short order dated 02.10.2019, the appeal was accepted; conviction and sentence recorded by the learned Trial Court was set aside. Above are the reasons of aforesaid short order announced today in the Court.
Copies of this judgment be sent to the Registrar of High Court of Sindh for onwar d transmission to the concerned learned trial judge for his guidance and self-evaluation. The Registrar High Court of Sindh will also bring this matter into the notice of Hon'ble Chief Justice for his kind information.