1. WALI MUHAMMAD KHAN, J: --Rab Nawaz and -Mir Ajab appellants in criminal Appeal No.30(S) of 1992, Sajjad Ahmad appellant in Criminal Appeal No.31(S) of 1992, and Jan. Muhammad and Wali Muhammad appellants in Criminal Appeal No.32(S) of 1992, through leave of the Court, call in question the judgment dated 1-7-1991 passed by a learned Single Judge of the Federal Shariat Court, whereby their appeal and revision against their convictions and sentences under Article 3 of the Prohibition (Enforcement of Head) Order, 1979, passed by the Magistrate 1st Class, Kohat vide order dated 26-1-1991, were dismissed and through the exercise of revisional powers, after giving notice to the appellant, their sentences were enhanced from three years' R.I. To five years' R.I. Each and.Fine of Rs.15,000 each was enhanced to Rs.One lac orin default two years' further R.I. Each and additionally they were awarded thirty stripes as well to meet the mandatory requirement of law.
2. The operative part of the leave granting order is reproduced hereunder:-- "Mr. K.MA. Samdani, learned counsel for Rab Nawaz and Mir Ajab Khan petitioners, contends that in the case of excise officials who were found in the car, Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 is not at all attracted as no narcotics were found in or recovered from the said car and that their appeal was dismissed by the Federal Sliariat Court merely on the ground that their defence was unconvincing. It is submitted that prosecution has to stand on its own legs and weakness of defence is no ground for conviction. He further submits that only two police officials are recovery witnesses and their evidence does not in any way show that the car was going ahead of the Truck and a pilot. He pointed out that Muhammad Ashraf SHO had stated that the car did not stop despite signal and ran on Shadipur Road. They chased it and stopped it near Railway Phatak. `All the 3 persons in the car were brought down from the car who on inquiry told that they are Rab Nawaz, Sajjad Ahmed and Mir Ajab Khan. Meanwhile Truck bearing No.2415 MR reached there'. Wazir Butt P.W. On the other hand stated that `meanwhile a car bearing No.444-- VR followed by a truck came from Kohat side. The vehicles were signalled to stop but they ran away towards Shadipur. We chased them and stopped them near Railway Phatak'. The learned counsel states that according to Muhammad Ashraf S.H.O. Only the car had ignored their signal and was chased by them and the truck reached after ward when they had already brought down the occupants of the car while according to Wazir Butt both the vehicles ignored their signal and both were chased and stopped.
3. It is submitted that in the circumstances of this case, it is a very material discrepancy."
4. The facts of the case, briefly stated, are that on 9-3-1987 Muhammad AshrafS.H.O., Ghambat, District Kohat, on spy information, organised a raiding party and made. Nakabandi near Kacha Pacca. After some time, a car followed by a truck emerged. He signalled the car which did not stop and rushed towards Shadipur Road. They chased the same and were able; to stop Itnear railway Phatak. The inmates of the car who disclosed their names andRab Nawaz, Sajjad Ahmad and Mir Ajab appellants were brought down. In the meantime, Truck bearing No.2415-MR also reached there. They first conducted search of the car and recovered a pistol and a bandolier containing 20 carts of the same bore from the possession of Mir Ajab appellant and also recovered 10 carts 7 mm rifle from the switch board of the car. The three appellants, named above, were accordingly arrested under section 13 of the Arms Ordinance and the articles recovered were taken into possession vide recovery memo. Exh.PR/2. Thereafter the truck was searched wherefrom Charas weighing 3,250 k.Gs., concealed in tobacco bundles, was recovered. Four grams Charas out of the same was sealed in a separate parcel. The truck, according to the S.H.O., was being driven by Wali Muhammad and owned by Jan Muhammad appellants. Rab Nawaz is Excise Inspector while Mir Ajab and Sajjad Ahmad are Excise Constables and the S.H.O. Suspected them that they were piloting the truck and were privy to smuggling of huge quantity of Charas. All of them were, therefore, arrested under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and the car, truck and Charas etc. Were taken into possession through recovery memos. Witnessed by the police officials. He then sent a Murasala Exh.PA for the registration of case and prepared the site plan Exh.PS correctly with all its footnotes. After doing the needful, he took the accused/appellants and the case property to the police station. Jan Muhammad and Wali Muhammad appellants in their statement under section 161, Cr.P.C. Disclosed the name of JaW-ud-Din as the owner of the property and therefore, efforts for his arrest were made but he was not traceable and warrants of arrest under section 204 and. Proceedings under section 87/88, Cr.P.C. Were initiated against him.
5. Ultimately, after the completion of the usual investigation and arrest of Jalal-ud-Din, all the six accused, namely, Jalal-ud-Din arid the five appellants were put on trial before the learned Magistrate 1st Class, who, after framing of the necessary charge--sheet, recording of the evidence which was produced by the prosecution in support of their case, recording of the statements of the accused under section 342, Cr.P.C., vide his judgment dated 26-1-1991, found all the appellants guilty of the charge under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced them to three years' R.I. Each, fine of Rs.15,000 each or in default further six months' S.I.
6. And acquitted JaW-ud-Din their co-accused and confscated Truck No. MR-2415 and motor-car No.VR-444. The appeal filed by the appellant before the Federal Shariat Court having failed and their sentences enhanced, as stated in the introductory part of the judgment, they have filed the instant appeals through leave of the Court.
7. We have heard Mr. K.M.A. Samdani, Advocate, for the appellants Rab Nawaz, Sajjad Ahmad and Mir Ajab; Malik Rab Nawaz Noon, Advocate for the appellants Jan Muhammad and Wali Muhammad; Mr. Anwar H. Mir, Advocate for the respondent/State; and have perused the record of the case with their valuable assistance.
8. The learned counsel for Rab Nawaz and another vehemently argued that there were two versions before the lower forums, the one advanced by the ,prosecution based on their conjecture that the car VR-444 which was being driven by his clients was acting as a pilot car and the other by his clients Rab Nawaz, Excise Inspector etc., that he on receipt of information from an informer that huge quantity of Charas is being transported to Karachi having been concealed in the tobacco load of the truck, obtained the car of his brother and started in pursuit of the truck along with the two constables and were ultimately able to intercept the truck after it had crossed the outer barrier of Kohat at the Kohat-Bannu Road and that after searching the same and finding contraband Charas therein, on the advice of Wazir Butt, A.S.I. That it is not advisable to take the truck through Dara Adam Khel, T.T., they adoptedadipur-Nizampur-Jehangir Road for taking the truck back to Swabi where the occurrence had initiated. According to him, the two versions had to be placed in juxtaposition and the Courts were required to see which one was more plausible/probable. He stressed that the theory advanced by the prosecution has not been established at all, whereas the circumstances of the case supported the version of his clients besides the admission of the -- accused; namely, Wali Muhammad and Jan Muhammad at the outset before the police at the time of their arrest that they had been intercepted by Rab Nawab Inspector and were being taken to Swabi by him via the said route. He has placed on record an Index plan of Kohat Irrigation Division, Kohat duly certified by the Canal Collector to strengthen his contention that Rab Nawaz Inspector and is-subordinates could be of no help to assist their co-accused Wali Muhammad and Jan Muhammad by piloting their truck as neither they had any acquittance with the police posted in Kohat Division nor the Excise officials could be under their control. Additionally, that the road at which the police had waylaid them could neither be used for the transportation of the contraband Charas to Karachi or Punjab, more so when their journey had started from Swabi and was bound for Karachi via Peshawar-Kohat-Bannu.
9. The learned counsel for Jan Muhammad and Wali Muhammad simply stated that the learned Federal Shariat Court could not legally enhance the sentence beyond the powers of the trial Court.
10. He submitted that the learned trial .Judge who was a Magistrate 1st Class had awarded the maximum punishment of imprisonment which, under the law, he could impose and that the learned appellate Court could not legally enhance the same under section 439, Cr.P.C. And as such, the enhancement in the sentence by the appellate Court is patently illegal and without jurisdiction. He also submitted that his clients were simply carriers and that, in view of the judgment -of this Court in case Sherzada v. The State 1993 SCM R 149 they deseryed leniency in the sentence. The learned State Counsel, on. The other hand defended the conviction and sentences passed by the trial Court as well as by the appellate/revisional Court.
11. We have anxiously considered the arguments advanced by the learned counsel on either side and have considered the evidence on record. It is well- established principle of criminal jurisprudence that the prosecution has to establish its case beyond any shadow of reasonable doubt and that they cannot derive any benefit from the weakness of defence. All the appellants were charge- sheeted for having been found transporting contraband Chaias weighing 3,250 kilograms punishable under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 without discrimination as to who are the principal offenders and who abetted the same to make them; liable under Article 26 of the Prohibition Order. This is apparently a technical omission but since Rab Nawaz, Excise Inspector and Mir Ajab and Sajjad Ahmad, Excise Constables were not found physically in possession of the contraband Charas and were implicated in the offence ion the apprehension that they might be aiding/abetting the principal accused Jan Muhammad and WaO Muhammad who were admittedly in possession of huge quantity of contra and Charas transporting the same in truck No.2415-MR, it would have been proper to have specifically mentioned the role attributed to each set of accused ' the charge--sheet so that they could tender a proper defence. However, ',Rana Nawaz and others (hereinafter to be referred to as Excise officials/appellants were aware of the charge levelled against them by the police and were not, prejudiced in their defence. Consequently, this material omission in the charge-sheet does not affect the merit of the case and is ignored.
12. Admittedly the Excise officials/appellants were traveling in car No.VR-444 when they were signalled by the police party headed by Muhammad Ashraf, S.H.O. And on their paying no heed to the signal, they were chased and recovery of arms effected from them but nothing in the nature. Of intoxicant was recovered from their person or the car. It is the case of the prosecution that the truck in which the contraband Charas was being transported followed it which was also stopped and on its search recovery of Charas effected. The factum that the car was leading the truck is not denied rather admitted by the Excise officials/appellants but not for the purpose of piloting but taking it to Swabi wherefrom it had been loaded with tobacco and the intoxicant, for proceeding against its transporter according to law after apprehending the same on the Kohat-Bannu Road. In this view of the matter direct evidence could not possibly be produced in support of the respective contentions of the parties and the Court had to rely on the circumstantial evidence to determine as to which version was more probable and reliable. Needless to emphasise, that in a situation like the one in hand if the accused are able to convince the Court about the probability, of their assertion being true and standing to reason, the benefit of doubt is to be extended to them. This principle was firstly recognised in the case of Safdar Ali v. Crown PLD 1953 Federal Court 93 and followed subsequently by this Court from time to time and also in the case of Nadeeni-ul-Haq Khan v. The State 1985 SCMR 510). The relevant dictum is being reproduced for convenience sake:-- "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, .The Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as matter of grace, but as of right, because the `prosecution has not proved its case beyond reasonable doubt."
13. In the instant case the F.I.R. Was recorded at 12-45 hours by Muhammad Ashraf, . S.H.O. At Police Station, Gumbat, distant 10-11 kilometres from the spot where the recovery was effected allegedly at 3-30 a.m. After about tine hours and it is mentioned therein: He has not been able to improve upon this assertion either in his statement in Court or through production of other evidence, direct or circumstantial, to establish the involvement of Excise officials/appellants as abettors to assist the other appellants in the commission of the offence. The suspicion of the police officer, howsoever strong, cannot take the place of proof of abetment of Excise officials, particularly in view of the counterversion advanced by them from, the very inception. The information on which he made a Nakabandi was only to the effect that on that very night a truck was about to transfer Charas towards Punjab via Kohat but its piloting by Rab Nawaz and others was never conveyed to him. The S.H.O. Did not record the information in the daily diary nor is there anything in black and white as to at which time the information was conveyed to him and when he made the Nakabandi. The place of arrest of accused and the recovery of the intoxicant etc., was effected beyond the limits of his police station. The time of occurrence being night time and place of recovery being an uninhabited area, in the normal course, the S.H.O. Had to take the vehicle and the accused to police station for proper search and weighing of the intoxicant more so when he suspected that Rab Nawaz and others were piloting the truck carrying the Charas but instead he allegedly conducted the entire proceedings on the spot which apparently was an arduous task. The delay in the recording of the F.I.R. Has not been satisfactorily explained more so when the police had vehicles at their disposal and the distance could be easily covered in half an hour. The recovery of such a huge quantity of Charas from the truck at night time and weighing the same at the spot which was an uninhabited area does not appear to be plausible, on the contrary, the explanation tendered by all .The accused unanimously that the Excise officials/appellants chased the truck, apprehended it after it had crossed the outer barrier of Kohat-Bannu Road, searched it, effected recovery through memos. And were carrying it to Swabi via the route in question, stand to reason and that is why the S.H.O. Did not feel any difficulty in concluding that the case lend support to the defence theory that there was some perfusion by the police to the Excise officials to join them in the credit of arresting the smugglers and on the refusal of Rab . Nawaz appellant they were also implicated in the offence. Consequently, the defence theory appears more plausible and the probability of its being true cannot be excluded.
14. There is force in the arguments of the learned counsel for the appellants that he has not been able to find any sense in the piloting of the truck by Rab Nawaz, and others/Excise officials. The journey of Truck No.2415-MR loaded with tobacco admittedly originated from Swabi and was bound for Karachi via Peshawar-Kohat-Bannu. The contraband Charas was concealed in the bundles of tobacco and any agency entrusted with the task of checking smugglers could intercept it and ask the inmates of the truck for the search of the truck.. There are several agencies entrusted with the task and Rab Nawaz appellant, an. Inspector of Excise Department, posted in Swabi could hardly prevail upon these agencies not to check it and if checked and found loaded with contraband to allow them go scot-free. He could possibly have some influence within the district of his posting but he could be of no help to the smugglers in the districts of Peshawar-Kohat-Bannu and onwards. As such, the allegations that he was piloting the same and have been assisting the smugglers in the transportation of intoxicant throughout the journey to Karachi is beyond comprehension.
15. According to D.W. Muhammad Irshad, Octroi Superintendent, Kohat, Truck No.MR-2415 containing 60 bundles of tobacco entered the Municipal limits from Peshawar side and was to proceed to Bannu which was issued Transit Pass No.161 dated 9-3-1987 which he delivered at the outer octroi post after crossing the Municipal limits. This witness is an important official of the Municipal Committee, Kohat and his evidence supported by documents `establishes beyond doubt that the truck in question came from Peshawar side, entered the Municipal limits and crossed it on the outer octroi post. Muhammad Ashraf, S.H.O., on his own showing, did not apprehend this truck while it was on Bannu Road but intercepted it at Shadipur Road which bifurcates from Kohat-Rawalpindi Road, and leads to Nizampur where obviously it had no business except to be taken to Swabi via Nizampur--Jehangira. This circumstance also corroborates the defence version and negates the prosecution case.
16. The learned trial Court as well as the appellate Court have found Rab Nawaz and others Excise officials/appellants guilty mainly on the ground that they had not been able to establish the theory advanced by them in defence and did not refer to the prosecution evidence .Regarding their abetment of the offence. As stated earlier, the initial burden was on the prosecution to prove their case beyond reasonable doubt and the accused were not required to establish their innocence. It is conceded by the prosecution that the principal their arrest, in their statement under section 161, Cr.P.C., made a clean breast of their arrest by the Excise officials/appellants and their being taken to Swabi via the route in question. That means that the defence theory was advanced from the very outset and all the accused/appellants have consistently stuck to it till the end. We are, therefore, convinced that the defence put forth by Rab Nawaz, Mir Ajab Khan and Sajjad Ahmad, Excise officials/appellants is more probable than the allegations of piloting made by the prosecution and their involvement in the case is not free from doubt.
17. Consequently, Criminal Appeal No.30(S) of 1992 filed by Rab Nawaz, Mir Ajab Khan and Criminal AppeZNo.31(S) of 1992 filed by Sajjad Ahmad are accepted and their convictions and sentences are set aside and they are acquitted of the charge.
18. As regards Criminal Appeal No.32(S) of 1992 filed by Jan Muhammad and Wali Muhammad appellants, they admitted the recovery of the contraband Charas from Truck No.2415-MR being driven by them but they express their ignorance about it and claim to be simply carrier. Their learned counsel relying on the authority of this Court in case Sherzada v. The State 1993 SCM R 149 submitted that being carrier substantial reduction in their sentence is called for. Additionally, he submitted that the learned Federal Shariat Court legally erred in enhancing the sentence in the exercise of their revisional powers under section 439, Cr.P.C. Inasmuch as, under subsection (3) of section 439, Cr.P.C. It was not legally empowered to inflict a greater punishment for the offence than that which might have been inflicted for such offence by a Magistrate of Ist Class. Explaining the position, he referred to the judgment of the trial Court and stressed that the learned trial Court was simply Magistrate Ist Class, not empowered under section 30, Cr.P.C. And in the exercise of his powers under section 32, Cr.P.C. Could only impose imprisonment not exceeding three years, fine not exceeding Rs.15,000 ar.4 whipping. According to him, since the maximum punishment had already been awarded by the trial Court, no question of its enhancement under section 439, Cr.P.C.
19. Arose and that the appellate Court in view of the dictum of this Court ought to have substantially reduced the sentence. In support of his contention that the appellants Jan Muhammad and Wali Muhammad were carrier, he referred to the record of the case and pointed out that one Jalal-ud- Din was jointly tried along with the appellants being the owner of the contraband Charas and even according to the prosecutions the status of the appellants Jan Muhammad and Wali Muhammad was that of carrier. The learned counsel for the State could not refer to any document on the file to show that the learned trial Court was invested with enhanced powers under section 30, Cr.P.C. As Magistrate 1st Class the trial Court had already exhausted its power so far as the imprisonment and fine concerned and the Federal Shariat Court legally erred; in enhancing the same. However, under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, imposition of whipping no., exceeding thirty stripes being mandatory, the Federal Shariat Court was perfectly justified in awarding the sentence of thirty stripes and the same is l F maintained.
20. Consequently, Appeal No.32(S) of 1992 filed by Jan Muhammad and Wali Muhammad is partly allowed. Their conviction is maintained but sentence G reduced to three years' R.I. With fine of Rs.15,000 or in default six months' S.1. Plus thirty stripes each.
21. N.H.Q./R-238/S