The petitioner was tried by the learned Judicial Magistrate 1st Class, Karor Lal-Eason, District Layyah ("Trial Court") in crime report bearing FIR No. 263 of 2014 dated 11.07.2014 for offences under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order 1979 (IV of 1979) ("PEHO"), registered with police station Fatehpur, Tehsil Karor Lal-Eason, District Layyah ("Crime Report" or "FIR").
2. Precise allegations as delineated in the Crime Report is that on 11.07.2014, the petitioner was preparing alcohol through distillery in standing crops in Chak No. 231/TDA and decamping from the spot after seeing police officials,[1] leaving behind a distillery, five kuppies within 1-1/2 (one and a half) liters of alcohol, other tools and implements of the distillery.
3. After completion of all codal formalities, report/challan under Section 173 of the Code of Criminal Procedure 1898 ("Code" or "Cr.P.C") was prepared and submitted before the learned Trial Court.
Thereafter, the learned Trial Court framed formal charge against the petitioner, to which the petitioner pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as five witnesses and brought on record the recovery memo (Exh.PA), complaint (Exh.PB), FIR (Exh.PC) and unscaled site plan (Exh.PD). After tendering the Punjab Forensic Science Agency ("PFSA") report (Exh.PE), prosecution evidence was closed.
5. Thereafter, although the statement of the petitioner was recorded in terms of Section 342 of the Code, however neither were the recoveries put to the petitioner nor the question, specifically, why this case has been registered against him, was put to petitioner. Petitioner did not appear as his own witness under subsection (2) of Section 340 of the Code.
6. On the conclusion of trial, the learned Trial Court found the petitioner guilty and, vide judgment dated 09.05.2017, convicted and sentenced him under Article 4 of the PEHO, for one day till the rising of the court, along with fine of PKR. 2,000/-, and in default thereof, he was directed to further undergo five days of simple imprisonment. Pertinently, he was acquitted under Article 3 of the PEHO.[2]
7. Feeling aggrieved, the petitioner assailed the vires of judgment dated 09.05.2017 passed by the learned Trial Court under Section 408 of the Code of Criminal Procedure 1898 ("Code" or "Cr.P.C") before the learned Additional Sessions Judge, Karor Lal-Eason ("Appellate Court") in criminal appeal bearing No. 01-10-A of 2018. The learned Appellate Court, vide judgment dated 19.04.2018, upheld the judgment dated 09.05.2017 passed by the learned Trial Court.
8. Through this revision petition, filed under Section 435 read with Section 439 of the Code, bearing No. 400 of 2018, the petitioner has impugned both judgment dated 19.04.2018 passed by the learned Appellate Court and judgment dated 09.05.2017 passed by the learned Trial Court.
9. Arguments heard; record perused.
I. Scope of Revisional Powers
10. The scope of revision is inherently limited and may only be invoked when a finding of fact that influences the decision is either unsupported by evidence or results from misreading or non- reading of the material available on record. Upon the fulfillment of either of these conditions, it is incumbent upon this Court to exercise its revisional jurisdiction. In order to invoke the revisional jurisdiction, two conditions precedent constituting jurisdictional facts would require to be fulfilled: first, it should relate to proceedings, and second, the said proceedings should be before subordinate criminal Court.[3] This Court, under revisional jurisdiction, has to examine the record for the purpose of satisfying its conscience to check the correctness, legality or propriety of any findings, sentence or order passed by the Courts subordinate to it. Therefore, responsibility casts upon this Court on its revisional side which compels it to reappraise the entire evidence if it is found that the learned Courts below did not appreciate the evidence and the decisions are on the basis of erroneous findings.
II. Effect of non-exhibition of Articles/ Documents during trial
11. With this principle in mind, the record of the case was perused, and it was straightaway observed that none of the recovered materials were exhibited in evidence by the prosecution before the learned Trial Court. Rule 14-H, Part B, Chapter 24, Volume III, of the Rules and Orders of the Lahore High Court ("High Court Rules and Order") pertains to exhibits and provides a self-explanatory procedure for exhibiting a document and article to be read in evidence, which has been blatantly overlooked in the instant case by the learned Trial Court. In "Aziz Khan v. The State and another"
(2023 PCr.LJ 1806 Lahore (dB)), it was held that: 'The learned trial court is under the bounden duty to see that the aforementioned Rule has been followed in its true letter and spirit. Where a document consists of more than one page, every page should be labelled and duly signed by the learned trial court as envisaged under the aforementioned Rule. In the instant case, undeniably, the report of PFSA could not be exhibited during the course of trial, therefore, the same cannot be taken into consideration to maintain conviction of the appellant. In the aforementioned circumstances, when no report of PFSA could be exhibited during the course of trial to be read in evidence, recovery of entire narcotic substance allegedly recovered from the appellant becomes inconsequential, thus, prosecution case falls to ground'.
Under the aforementioned Rule of the High Court Rules and Order, both documents and articles have to be exhibited. Since the recoveries were never produced and exhibited before the learned Trial Court, the same cannot be used to prove the case against the present petitioner despite the existence of positive report. Conversely, had the article been exhibited but the report was not, the effect would remain the same. Reliance is placed upon the case of "Ghulam Sarwar v. The State"
(1996 PCr.LJ 1853 Federal Shariat Court), wherein the accused was charged for offences under PEHO. During the course of trial, the Chemical Examiner's Report, although positive, had not been exhibited before the learned Trial Court. The Court observed that: 'The report was received as positive but the said report was not exhibited in the proceedings through any witness. Even the Investigating Officer was not examined on this point. Therefore, the said report could not be taken into consideration'.
Likewise, the Honourable Supreme Court of Pakistan in "Ahmed Ali and another v. The State" (2023 SCMR 781) held that: 'Thus, under the Police Rules and the High Court Rules, mentioned above, in all cases, especially in the cases of articles sent to the chemical examiner, it is necessary that there be no doubt as to what person or persons have had charge of such articles throughout various stages of the inquiry.
Besides, the person who packed, sealed, and dispatched such articles should invariably be examined. Further, the clothes, weapons, money, ornaments, food and every other article that forms a part of the circumstantial evidence has to be produced in court, and their connection with the case and identity should be proved by witnesses.
9. With regard to the case law on the subject, it is to be noted that in the case of Qamar Zaman v.
Waseem Iqbal and 5 others (2004 SCMR 1209), this court held that the gold articles said to be the belonging of the deceased were neither got identified in accordance with law nor exhibited in the trial, and as such, reliance on the same and awarding capital punishment would not at all be justified. In the case of State of Islamic Republic of Pakistan through Deputy Attorney: General for Pakistan v. Kenneth Marshal and 2 others (2005 SCMR 594) it was held that the prosecution miserably failed to produce and exhibit the case property though many opportunities were afforded by the trial Court; in such circumstances, it was rightly held by the High Court that there was no possibility of the accused being convicted and continuation of trial against them would be an abuse of the process of the Court. In the case of Gul Dast Khan v. The State (2009 SCMR 431), it was held that it would not be out of place to mention that the case property in that case has neither been exhibited nor produced at the trial, causing a dent in the prosecution's case. In the case of Amjad Ali v. State (2012 SCMR 577) it was held that admittedly the case property, the stepney of the car was never produced during trial to verify as to whether it could contain such a huge quantity of the narcotics in question; the referred elements of doubt surrounding the prosecution case have led us to hold that the prosecution has failed to prove its case beyond reasonable doubt to sustain conviction'.
III. Chain of Custody - Positive PFSA Report
12. Though the non-exhibition of recovered articles is a stand-alone ground for acquittal, but at the same time, this Court cannot turn a blind eye to the fact that the prosecution failed to produce the witness Muhammad Khalid, who, according to the PFSA report (Exh.PE), transmitted the samples to the PFSA. This omission raises concerns regarding the safe transmission of the parcel to the PFSA, thereby disrupting the chain of custody for the sample parcel. In "Muhammad Adnan and another v. The State and others" (2021 SCMR 16), the Honourable Supreme Court observed that the positive report of the Forensic Science Laboratory was of no legal consequence because the police constable who transmitted the empty allegedly secured from the spot was not produced by the prosecution. In view thereof, the non-production of witness Muhammad Khalid suffices to break the chain of custody and is sufficient to cast serious doubt about the integrity of the sample parcel, ultimately compromising the credibility and reliability of the PFSA report (Exh.PE). Reference in this regard can be made to the case of "Ikramullah and others v. The State" (2015 SCMR 1002) wherein the Honourable Supreme Court observed as under: 'In this view of the matter the prosecution had not been able to establish that after the alleged recovery the substance so recovered was either kept in safe custody or that the samples taken from the recovered substance had safely been transmitted to the office of the Chemical Examiner without the same being tampered with or replaced while in transit'.
IV. Incriminating material not put under Section 342 of the Code
13. This can also be examined from another perspective, the recoveries were not put to the petitioner in his statement under Section 342 of the Code. The statement of the petitioner recorded under Section 342 of the Code depicts that the incriminating material, i.e., the recovered articles, were not put to the petitioner to extract his explanation thereon during his examination. It is trite that the incriminating material and the circumstances from which inferences adverse to the accused sought to be drawn should be put to the accused when he is questioned under Section 342 of the Code, else the same cannot be considered as a piece of evidence against the accused.
4. Akin to the principle enunciated hereinabove that any non-exhibition of article or document cannot be used against the accused person, similarly, any incriminating article or document which was not put to accused in his statement under section 342 of the Code cannot be used against him.[5] In "Abdul Hayee and Abdullah alias Ghazali and another v. The State and others" (2025 SCMR 281), wherein the recoveries were not put to the accused in his statement under Section 342 of the Code, the Honourable Supreme Court of Pakistan observed as under: 'we have noted that the said recoveries were not put to the petitioners in their statements recorded under Section 342 Cr.P.C., therefore, the above-mentioned pieces of prosecution evidence cannot be considered against the petitioners and the same have rightly been discarded by the learned High Court in paragraph No. 15 of the impugned judgment. Reference in this context may also be made to the cases of, Fida Hussain Shah v. The State (2024 SCMR 1622), Haji Nawaz v. The State (2020 SCMR 687) and Mst. Anwar Begum v. Akhtar Hussain (2017 SCMR 1710)'.
Harrowingly, the learned Trial Court did not even bother to put the question, why this case has been registered against you and why PWs deposed against you, to the petitioner. The purpose of this question is to allow the accused facing trial to explain his position and lapse on part of the learned Trial Court amounts to illegality.
V. Identity - Previously not known
14. Likewise, according to the prosecution's narrative, the petitioner fled from the crime scene.
Pertinently, it is not the prosecution's case that the petitioner was known to them. Since the petitioner was not known to the prosecution witnesses and no identification parade was conducted in terms of Article 22 of the Qanun-e-Shahadat Order 1984 ("QSO"), nor were the features of the petitioner disclosed in the Crime Report, with a lack of explanation from the complainant as to how he identified the petitioner, the identity of the petitioner remains unclear and shrouded in mystery.
VI. Suo Muto revisional jurisdiction
15. Lastly, the objection of the learned law officer that the petitioner cannot be acquitted in absentia is misconceived. It is trite that this Court can exercise its revisional jurisdiction suo motu to ensure effective superintendence and visitorial powers to make sure of the strict adherence to the safe administration of justice and to correct any error unhindered by technicalities.[6] Besides, the petitioner has already served out his sentence and there appears to be no embargo on him to redeem his reputation to have his criminal record extinguished. Even otherwise, there has never been an embargo to acquit an accused in absentia.[7] VII. Single doubt sufficient to acquit
16. Given the aforementioned deliberations, it cannot be stated with any degree of certainty that the prosecution had succeeded in establishing its case against the petitioner beyond any reasonable doubt; as adumbrated thereto, the prosecution has failed to prove its case through cogent, reliable and trustworthy evidence. To this end, it is trite that it is not necessary that there be multiple infirmities in the prosecution's case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to the benefit, not as a matter of grace or concession but as a matter of right.[8] VIII. Decision
17. Consequently, this court is of the considered view that both the learned lower courts while passing the impugned judgements erred in law and ignored these material aspects of the case, so, this Criminal Revision Petition of the Petitioner is hereby allowed; and the conviction and sentence awarded by the learned Trial Court and maintained by learned Additional Sessions Judge vide impugned judgments dated 09.05.2017 and 19.04.2018 respectively are hereby set-aside. The Petitioner is acquitted of the charge.
1. Police officials raided the place of recovery, i.e., Chak No. 231/TDA, Fatehpur while investigating case FIR No. 262 of 2014.
2. Petitioner was acquitted under Article 3 of PEHO due to non-fulfilment of the prerequisites constituting the offence as envisaged therein because no proceeds of sale were ever recovered from the petitioner.
3. See "Ali Gohar v. The State" (PLD 2020 Supreme Court 427).
4. See "Din Muhammad v. The Crown" (1969 SCMR 777); and, "Muhammad Mumtaz v. The State" (1997 SCMR 1011).
5. See "Syed Fida Hussain Shah v. The State and another" (2024 SCMR 1622); and,
6. See "Rizwan Ahmad and 3 others v. The State and another" (2021 YLR 2060 Lahore).
7. See "The State v. Muhammad Umar alias Chotoo" (2003 PCr.LJ 216 Karachi).
8. See "Barkhudar v. The State and another" (2023 SCMR 1791); "Lal Jan v. The State" (2023 SCMR 1009); "The State v. Ahmed Omer Sheikh" (2021 SCMR 873); "Muhammad Mansha v. The State" (2018 SCMR 772); "Khalid Mehmood v. The State" (2011 SCMR 664); "Muhammad Akram v.
The State" (2009 SCMR 230); "Ghulam Qadir v. The State" (2008 SCMR 1221); and, "Tariq Pervaiz v. The State" (1995 SCMR 1345).