Syed Muhammad Farooq Shah, J.--Captioned Appeal under section 417 Cr.P.C. against the impugned judgment dated 09.02.2019, passed by the learned Senior Civil Judge (Admin)/JM-I, Haripur , has been directed by the State through Advocate General, Khyber Pakhtunkhwa, Peshawar with a prayer that the accused/respondents tried and acquitted for an offence punishable unde r Article 4 of the Prohibition (Enforcement of Hadd) Order , 1979, in F.I.R. number 61, dated 25.01.2016, registered at Police Station Khanpur , District Haripur may be convicted on the grounds averred in the memo of appeal.
2. Succinct story of the prosecution is that on 25.01.2016 police party headed by Bashir Ahmad S.H.O. received spy information regarding possessing and selling of liquor . On such information, he proceeded at the pointed place and found two persons having shopping bags. On seeing the police party , they turned back in shops and closed the shutter of shop. The S.H.O. alongwith police party overpowered them and recovered six blue shopping bags and black can containing 12/12 each total 72 bottles country made liquor and one can 20 litters of country made liquor .
The incident was incorporated in the F.I.R. and after conducting usual investigation, the culprits/respondents were charge sheeted. Trial commenced after framing of charge on 12.01.2017 to which the accused did not plead guilty .
After recording the evidence of prosecuti on witnesses and statement of accused under Section 342 Cr.P.C., vide impugned judgment acquittal was recorded.
3. During preliminary hearing Malik Akhtar Hussain Awan, Assistant Advo cate-General representing the .State/appellant contended that despite convincing evidence inspiring confidence adduced by the prosecution, the trial Court by acquitting the accused, caused grave miscarriage of justice by extending benefit of minor discrepancies in favour of the accused/respondents. Learned State Counsel submitted that third charged accused namely Khursheed alias Bahool had been acquitted under Section 249-A Cr.P.C. by the learned trial Court and the State did not prefer any appeal against his acquittal.
4. We, have scanned the evidence with the able assistance rendered by the learned State Counsel representing the state. It is an admitted fact that the contraband liquor was allegedly recovered from a shop but neither the owner of the shop nor inhabitants of the locality had been associated to witness the recovery . It is also an admitted fact that samples taken from the recovered bottles and can of liquor were sent. to the laboratory on 01.02.2016 i.e. after delay of almost seven days of allege d recovery . The delay of seven days in sending of samples has not been explained and justified; moreso, there is nothing on record that the recovered case property was kept in safe custody since the day of registration of F.I.R. i.e. 25.01.2016, till it was sent to the laboratory on 01.02.2016. Under the law, un-explained delays in sending the narcotics to the laboratory and unsafe custody of narcotics besides transmission of samples to the, office of chemical examiner through un-exam ined witness are fatal to the prosecution case. It is also an admitted fact that despite advance information of alleged crime and the place of occurrence, situated in a thickly populated area, compliance of mandatory requirement of Section 103 Cr.P.C. has not been followed by the raiding party , more particularly , the recovery was effected during day time and the police party was continuously busy in preparation of recovery of narcotics proceedings etc. for suf ficient time.
5. Prosecution case hinges on the evidence of police officials. The legal proposition of the case much emphasized by the learned State counsel for the Appellant/State is that the rules of justice enunciated by Section 103 of the Code are so embedded in criminal jurisprudence of Pakistan that the said provision of law is not applicable in the circumstances of the case. It need not to be iterated that universally accepted principle in criminal cases is that two mashirs are always cited for recovery made from places and reliance is to be placed on these witnesses in the ordinary course provided they are indepe ndent, respectable and inhabitants of the locality . The residence of the mashirs becomes relevant depending on the facts of the case. In order to ensure proper investigation and clear proof