SYED MUHAMMAD FAROOQ SHAH, J.---Titled Revision Petition has been directed under Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973, read with section 439, Cr.P.C., arising out of the judgment dated 18.03.2019, rendered by the learned Sess ions. Judge, Dadu, whereby the judgmen t dated 06.03.2019 delivered by the learned Trial Judge i.e. 2nd Civil Judg e and Judicial Magistrate Dadu, the conviction and sentence awarded to the petitioner/accused Muhammad Hanif under Article 3 of the to suffer R.I. for a period of three years and to pay fine of Rs.20,000/- was modified and reduced from three years imprisonment to two years ICI. benefit of section 382-B, Cr P .C. has been awarded to the accused.
2. Story of the prosecution case as narrated in the FIR lodged by the complainant ASI Qurban Ali Baladi at Police Station Rajo Dero, ' under Articles '3/4 Prohibition (Enforcement of Hadd) Order 1979 is that on 20.10.2018 he along with his subordinate staff had left the police station for patrolling and snap checking. While patroling different places when they reached at the place of occurrence situated at "WARML SOLANGI MORE POINT", they saw a white Carry-V an No.CV -7921/Sindh, Engine No. PKT935192, Chasis No SV 308PK/01051659, Model 2015 White Colour . They stopped the said vehicle and from its search the complainant along with police party recovered contraband hemp (Bhang), weighing 230 Kg, filled in 12 bags. 200 grams of hemp were taken from each bag and wrapped in a separate parcel weighing 2400 grams for chemical analysis. During interogation, the petitioner accused Muhammad Hanif disclosed that he had to deliver the said recovered intoxicant to the acquitted accused Syed Saifullah Shah.
3. The Petitioner and co-accused Saifullah Shah were jointly challaned by the concerned police under section 173, Cr.P.C. to face trial for offences punishable under Articles 3/4 of Prohibition (Enforcement of Hadd) Order , 1979.
Accused No.2 Saifullah Shah has been acquitted by the learned Trial Court mainly on the ground that evidence against him was sole statement of the petitioner/accused Muhammad Hanif, where in he stated that he was going to sell the contraband intoxicant to co-accused Saifullah Shah, inadmissible under Article 38 of the Qanun-e-Shandat Order , 1984.
4. Surprisingly , the petitioner/accused Muhammad Hanif and co-accused Saifullah Shah were jointly charged by the trial court with common role in commission of the of fences in the following manner: "CHARGE I Hameedullah Judicial Magistrate-II, Johi do hereby charge you;
1. Muhammad Hanif son of Muhammad Ramzan Rahoojo
2. Saifullah Shah son of Abdullah Shah Syed That on 20.10.2018 at 1600 at Wary More near Sitta Village you were arrested by complainant ASI Qurban Ali Baladi and recovered 230 kilograms hemp (Bhang) containing in 12 plastic bags and cash of Rs.470/- from your possession which you had kept with you for selling purpose and thereby you have committed of fence under Articles 3/4 PEHO within the cognizance of this Court.
And, I hereby direct that you be tried on the aforesaid charge by this Court."
Charge reproduced above has been framed by the trial Court against both accused, Though, admittedly alleged narcotics have not been recovered from the person/possession of acquitted accused Saifullah Shah. To establish the ownership of recovered intoxicant exclusive or joint derivative contraband/con structive or physical possession has not been ascertained, therefore, occu pancy 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 iterated that the object of framing a charge is to enable the defence to concentrate its intention on a case that h. 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 foundat ion of the case viz charge is not tenable in law. Both accused were charged for an offence under Articles 3/4 of Prohibition (Enforcement of Hadd)
Order 1979, It is an admitted fact that neither case property was recovered from accused Syed Saifullah Shah nor the investigation officer had collected evidence against the accused Saifullah Shah that he was purchasing the said narcotics from convict/accused Muhammad Hanif, therefore, the charge being foundation of the trial is faulty . It needs to be reiterated that the legislature has provided an elaborate procedure for framing the Charge under section 221, 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 story as set up in the memo of recovery and arrest (Exh-3/A) and F1 (Exh.3/C) and in challan, the accused Saifullah Shah cannot be held responsible as sharer in an offence i.e. in prosecution of the common intention. Common intention/common object is a question of fact which is to be gathered from the peculiar facts and circumstances of the case for dispensation of substantial justice in criminal cases. The imperfection in the charge is not curable as both accused were being tried "sharers in the offence" and their liability was collective and vicarious and not individual. The form of the charge 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 petitioner/accused Muhammad Hanif. 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 simultaneous ly under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order , 1979. Therefore, under peculiar facts and circumstances 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 driven by the petitioner Muhammad Hanif, therefore, the learned Magistrate has wrongly taken the cognizance while accepting the final report under section 173, Cr.P.C. against co-accused Saifullah Shah. On conclusion of prosecution evidence. statement of accused under section 342, Cr.P.C. recorded by the trial Court in a manner that neither he was confronted to the report of chemical examiner nor the accused was controverted to the alleged possession of contraband intoxicant made from a place/vehicle or from a dwelling.
5. It needs to be reiterated that while taking the cognizance by the Magistrate under section 173, Cr.P.C. a judicious and just order should be passed with reasons and justification not in arbitrary or slipshod manner . The Magistrate is required to consider the report under section 173, Cr.P.C. in the light of the material collected during the investigation and then pass a speakin g order . The magistrate are bestowed with administrative powers of administrative nature, yet the same has to be just and judicious and not in a mechanical manner . So that the case at the very initial stage should nip in the bud rather to put the accused in futile exercise of trial; more particularly , when there was no probability of the accused being convicted. In the case of Syed Afshan v. Syed Farukh Ali and 3 others PLD 2013 Sindh 423 a Division Bench of High Court of Sindh very elaborately classified disposal of final report under section 173, Cr.P.C. by Magistrate under "A", "B", "C" Class to dispose of Criminal cases after completion of investigation. In the case of Ch. Muhammad Ashraf v. State 2006 PCr.LJ 518 law laid down for disposal of report under section 173, Cr.P.C. in paragraph 5 is that "Undisputedly , the Magistrate is competent to pass any order on the report submitted by the Investigating Officer and take cognizance of the offence or even order further investigation into the matter . However , any order means judicious and just order and not an arbitrary order without reasons and justification. The Magistrate is required to consider he report under section 173, Cr.P.C. in the light of the material collected during the investigation and then pass an order . It is true that sometimes the Investigating Officer do not investigate the matter properly and sincerely and submit unjustified reports even then it is not expected to disagree with it by a non-speaking order without any indication about considering the material collected during the investigation."
In the case of Pakistan Institute of Labour Education and Research and another v. Province of Sindh and others (2017 YLR Note 343) [SINDH] a Division Bench of High Court of Sindh laid down the procedure for disposal of final report under section 173, Cr.P.C. in detail. It would be advantageous to reproduce herein below the relevant paragraph: "Indeed, the magisterial court is the kingpin in the hierarchical system of administration of justice and must have strength to put an end to injustice while performing the sacred duties. The judicial wisdom and dignity , intellectual integrity , knowledge, judicial restrain and functions arc few aspects through which the Court may function successfully by inspiring confidence of all. The congenial atmosphere in Court may be maintained in a graceful and dignified manner so that indulgence to one party at the expense of justice may not be caused. Suffice it to, say that the impugned order has been passed hurriedly in a non-judicial manner , more particularly , without issuing any specific direction, though it is settled law that the magistrate when received final report from police, recommending cancellation of FIR, under whatever class, he should verify/peruse the evidence collected by the concerned police and if he is of the opinion that the FIR merits to be cancelled, he should pass an speaking order giving reasons for accepting the recommendations of the police. No doubt it is an administrative order yet it should be judicious, fair and reasonable. Reliance may conveniently be placed on; Sarfaraz Hussain v. The State 2009 YLR 1614 , Muhammad Hassan v. The State 2009 YLR 1479 , Muhammad Arshad Afridi v. The State 2010 YLR 1357 , 1994 MLD 1659 , 1997 SCMR 299, Syed Paryal Shah v. Behram 411, 2012 PCr.LJ 189 NS Zafarullah v. The State PLD 2012 Sindh 406 .
6. Cumulative assessment of evidence on record and overall analysis of material on record reflects that the case of the prosecution hinges on testimonies of four police officials wherein they have shown recovery of contraband narcotics from a vehicle driven by petitioner/ accused Muhammad Hanif, No other person was found in the said vehicle, therefore, by no stretch of imagination it may be considered the property of driver namely petitioner Muhammad Hanif, No evidence with regard to imports, exports, manufactures, sells or to serve any intoxicant has been brought on record against the petitioner/accused. In such view of the matter , the learned Trial Court arrived at the conclusion that the accused Muhammad Hanif was transporting the recovered narcotics.
7. From perusal of impugned judgment, it appears that perhaps, the learned trial Judge did not bother to peruse and to consider cross-examination of prosecution witnesses, resultantly , the impugned judgment has been passed against the petitioner . 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 routed in our country . The prosec ution 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.
8. Recovery of contraband intoxicant was allegedly made from a vehicle on 20.10.2018 at 1630 hours Chemical examiner report (Ex,3/D) reflects that it was dispatched to the Chemical Examiner for analysis on 17.12.2018, thus, there is delay of 57 days in sending a common sample of recovered contraband intoxicant, containing in 12 bags.
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 .
9. Above are the reasons of short order reproduced herein below announced on 01.10.2019, whereby the appeal was accepted: "Arguments heard at length. For reasons to be recorded later, the Revision is allowed. Conviction and sentence recorded by the learned Sessions Judge, Dadu through impugned judgment dated 18 03.2019 is set-aside, Petitioner/accused Muhammad Hanif son of Ramzan Rahoojo is acquitted from the charge, Presently , he is stated to be confined In Central Prison Hyderabad. The concerned Jail Superintendent is directed to release him forthwith, if not required in any other case"
Copy of this judgment he sent to the Registrar of High Court of Sindh for onward transmission to the concerned learned judges for their guidance and self-evaluation.