' By this judgment I intend to dispose of the present appeal filed by Khushi Maseeh against the impugned judgment, dated 28-9-1995 passed by learned Magistrate 1st Class, Jhang by which the appellant was convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order) and sentenced him to suffer three years' R.I. With benefit of section 382-B, Cr.P.C.
2. Brief facts of the case radiated by and emerged out of the record are that on 12-3-1994 at about 12-00 noon, S.-I. Zia Aslam alongwith ten other police personnel's were present at Tonga Stand near Talib Committee, Jhang Saddar in connection with the checking of intoxicants when he received information that Khushi Maseeh accused is dealing in illicit liquor. He made Muhammad Amin as fake purchaser to purchase liquor from said Khushi Maseeh and gave him Rs,1,000 for purchase of foreign wine. It is alleged that when Khushi came out with two bottles of wine he was apprehended by the police party along with the same currency note of Rs,1,000. The police entered into the appellant's house and on his own potation recovered six bottles of foreign-made wine.
3. After usual investigation the accused was sent up for trial before the learned Magistrate, formal charge was framed against him to which he pleaded not guilty, prosecution evidence was summoned and the learned Magistrate, after conclusion of the trial convicted and'sentenced him as embodied in para. 1 of this judgment. Hence the present appeal.
4. Prosecution examined:
(i) P.W. Qalb Ali (A.S.-I.) who had incorporated contents of a Murasila, sent by S.-I. Zia Aslam, into an F.I.R. No,100/94.
(ii) P.W. Nasir Abbas (Constable) who is witness of recovery. He admitted in cross-examination that currency note of Rs,1,000 was not given to Constable Muhammad Amin in his presence. He also stated that other recovery witness was one Muhammad Iqbal.
(iii) P.W. Muhammad Iqbal (H.C.) appears to be second witness of recovery. He admitted in cross- examination that he did not know whether the accused, being a non-Muslim, had a permit to possess that wine. He also admitted that, while searching the house, public witnesses were not secured to witness the search.
(iv) P.W. Zia Aslam (S.-I.) is the complainant and the Investigating Officer of this case. He admitted that Muhammad Amin, who had been made fake purchaser, was not made witness. He claimed that he had entered the house of appellant when desired by the appellant himself.
' Besides not making Muhammad Amin, the fake purchaser, a witness, the most surprising aspect of his admissions in cross-examination are that--
(a) the alleged currency note was not produced in the Court during the proceeding, and
(b) he was not aware whether the said note was handed over to anybody or not.
5. The appellant denied the allegations of prosecution in his statement recorded under section 342, Cr.P.C. He neither preferred to get him examined under section 340(2), Cr.P.C. Nor produced any defence witness. However, the learned trial Judge convicted the appellant by observing that:--
(i) permit issued to the accused does not allow him to run the business of illicit liquor; and
(ii) although the appellant had taken a plea that he was involved in this case due to personal grudge and enmity but, in proof of this contention, he has produced nothing to show that he has been falsely implicated in this case.
6. Admittedly,
(i) The fake purchaser was not even named in the charge-sheet;
(ii) The currency note of Rs,1,000 was not produced in proof of sale and purchase of wine.
' It was, therefore, contended by the learned counsel for the appellant that charge under Article 3 of the Prohibition Order has not been proved. The learned counsel also assailed the impugned judgment with reference to violation of section 103, Cr.P.C. And under Article 22 of the Prohibition Order.
' Controverting these contentions, the learned counsel for the State stated that it was not necessary for the prosecution to produce each and every witness to prove its case. He relied upon Humayun and another v. The State NLR 1978 Cr.
469. I think that the said case does not support the contention of the learned Advocate on account of several reasons. The said case relates to a bail application and contention of the learned Advocate in that case was that certain witnesses, not mentioned in the F.I.R., had appeared before the police more than six months after the occurrence. On this contention the Honourable Judge of the Lahore High Court granted bail to the accused. In so far as the present case is concerned, the main charge against the appellant is of selling wine but, admittedly, neither fake purchaser was produced nor the currency note which was allegedly used for purchase of the said wine. For the purpose of proving the charge of selling intoxicant punishable under Article 3(c) of the Prohibition Order the prosecution is bound to produce the purchaser, the currency used for purchase and the purchased intoxicants. If any of the three factors is missing then selling would not be proved. In the present case important link in the chain was Constable Muhammad Amin who was made the fake purchaser by giving him a currency note of Rs,1,000 to purchase the wine. Even if it is believed that wine was recovered, the allegation of selling the wine is not proved because the linked evidence with reference to purchaser and currency was either lost or intentionally destroyed by the prosecution. I have no hesitation to hold that prosecution is duty-bound to produce each and every linked piece of evidence which is necessary to effectively implicate any accused with the commission of an offence beyond any reasonable doubt. On the strength of this proposition the appeal can be allowed on this score alone.
7. The appellant, in such circumstances, could be charged under Article 4 of the Prohibition Order but the first proviso to Article 4 of the Prohibition Order also saves his skin on account of his being a non-Muslim and for keeping only few bottles of wine for the purchase of using it as a part of same ceremony. Due to this reason the case of Nosher Rustom Sidhwa v. The Federation of Pakistan PLD 1981 FSC 245 referred by the learned counsel for the State does not appear to be used against the present appellant. Although I am of the view that an accused can be convicted under Article 4 of the said Order at appellate stage too if he was acquitted by the trial Court in that Article yet, in the present appeal, the facts of the case do not push me to open the door of that Article on account of his religious faith and the stand taken by him regarding a marriage ceremony.
8. The learned counsel for the State also referred to 1994 SCMR 1543 Muhammad Khan v. The State wherein it was observed by the Honorable Supreme Court that:-- "Police officials are as good witnesses as any person from the public provided no animosity is alleged and proved against them and the planting of the articles in the particular circumstances of the case is not possible ... Where, therefore, the possibility of planting the huge quantity of narcotics inside the home by the police was not possible nor could the police, or anybody else had the knowledge of its concealment, non-production of disinterested witnesses in such recovery would not adversely affect the recovery itself."
' This view was based upon several reported cases reported as Khudai Rahim v. The State 1991 SCMR 461, Safdar Abbas v. The State PLD 1987 SC 467 and Taslim Khan v. The State PLD 1990 SC 1088.
' I need not to refer all judgments with contrary view except the cases reported as Muhammad Shafi v. The State PLD 1987 FSC 16, Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607 ami Muhammad Bashir alias Babu v. The State PLD 1988 Lah.
574. As circumstances of every criminal cases are usually different in different cases, therefore, these contrary views can be harmonized on the basis of those circumstances. But the most important point in the cases of intoxicants with reference to the Prohibition Order is its Article 22 which reads as under:-- Issue of search warrants.--- (1) If any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reasons to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still, utensil, implement or apparatus in respect of which the alleged offence has been committed.
(2) Any person who has been entrusted with the execution of such a warrant may detain and search and, if he thinks proper, but subject to the provisions of clause (1) of Article 12, arrest any person found in the place searched, if he has reason to believe such person to be guilty of an offence under Article 3, Article 4, Article 8 or Article 11."
' The scheme of criminology in the Prohibition Order, after perusal of Articles 3, 4, 8 and 11 of the said Order, appears to have put an offence under Article 3 of the said Order as cognizable offence while the offences under Articles 4, 8 and 11 as non-cognizable offences. The object of introducing Article 22 of the said Order seems nothing but to protect the sanctity of inhabitants of a house and their privacy in accordance to the teaching of the Holy Qur'an which speaks that:- "0 you who believe! Do not enter houses other than your own houses until you have asked permission and saluted their inmates this is better for you that you may be mindful. (Al-Nur 24 : 27).
' But if you do not find any one therein, then do not enter them until permission is given to you; and if it is said to you: Go back, then go back; this is purer for you; and Allah is cognizant of what you do.
(Al Nur 24 : 28)."
' For a strong foundation in the cases of intoxicants the investigating agency has to comply with the provision of Article 22 of the Prohibition Order and it is only after that compliance of the said provision that a construction be made on the said foundation with the help of material certificated by section 103, Cr.P.C. Any construction without any foundation means ultimate destruction of the said construction. Same is the position in the appeal in hand. I The question of compliance of section 103 would arise only after compliance of C Article 22 of the Prohibition Order and admittedly the said provision was totally ignored while entering into the house of appellant for the purpose of search. On the basis of this legal position, too, this appeal is entitled to be allowed. The I proposition drawn in this para. Can be deduced from a chain of cases including the cases reported as Malik Zaka-ud-Din v. The State 1971 PCr.LJ 152, Muhammad Yaqub v. The State 1978 PCr.LJ 812, Muhammad Bashir alias Doba v. The State PLD 1988 Lah. 574, Mukhtar alias Karoo v. The State 1988 PCr.LJ 591, Haji Mahmood Khan Daulat Khan v. Emperor AIR 1942 Sindh 106 etc. Etc. ' The case of Muhammad Khan v. The State 1994 SCMR 1543 referred by one learned Advocate for the State is, therefore, not helpful to him because the said case relates to section 103, Cr.P.C. While the main provision involved in the appeal in hand is Article 22 of the Prohibition Order.
9. Reference was also made here by the learned counsel for the State to a decision reported in Mazhar Mir v. The State 1991 PCr.LJ 454 for the proposition that, evidence on commission of crime be judged and sifted to separate the grains from chaff. Assertion of the learned Advocate is that recovery of wine bottles has been assailed on the point of technicalities. The learned counsel drew my attention to statement of accused recorded under section 342, Cr.P.C. Where main defence taken by the accused was his enmity with the police but he failed to produce any evidence regarding enmity.
I have gone through the statement of the appellant recorded under section 342, Cr.P.C. And I have no hesitation to observe that the said statement was recorded by the learned Magistrate as a formality in the proceeding. The examination under section 342, Cr.P.C. Is not an empty formality. It requires to be carried out to offer an opportunity to an accused to explain his position regarding each and every piece of evidence brought on record by the prosecution if those pieces of prosecution evidence are to be used against the accused for the purpose of conviction. If they are not put before an accused in the shape of questions while recording his statement under section 342, Cr.P.C. Then conviction on the basis of that evidence would be illegal. Same is the position in the appeal in hand. The charge against the appellant was of selling wine but not a single question with reference to selling wine was put to the appellant. Similarly the learned trial Judge, while convicting and sentencing the accused used this forceful sentence that "permit issued to accused does not allow him to run the business of illicit liquor" but he did not put a single question to the accused to that effect. It can, thus, be presumed that either the learned Magistrate is totally unaware about the legal aspect of section 342, Cr.P.C. Nor he treated it only a formality. This legal defect is another fatal blow to the impugned judgment and can be used to allow this appeal.
In so far as the beautiful phrase of "sifting grain from chaff" is concerned, I have generally observed that it is usually used but is misused and misquoted. In my view this phrase can only use to find out realities from among the depositions consisting of contradictions, omissions or additions. This phrase would not be helpful to meet incurable irregularities or illegalities committed by Investigating Officers during investigations or by Courts during proceedings. On the basis of these propositions the circumstances and factual aspects embodied in the present appeal in hand do not provide a chance to this Court to sift grain from chaff on account of certain admitted realities for which the Investigating Officer had no answers. For example:--
(i) Fake purchaser in this case was neither shown witness in the charge-sheet nor was bothered to be produced by the prosecution by moving some application in the Court;
(ii) currency note used for purchase of wine was made to disappear from the record. It must have gone in the pocket of some one but that some one was also kept behind the curtain along with that currency note;
(iii) no question was put to the accused in respect of these facts by the trial Court while recording his statement under section 342, Cr.P.C., etc., besides several other necessary questions as discussed in the above lines.
' On the basis of these painful realities it can be said with certainty that there is only chaff in this case and, therefore, question of sifting grain from that chaff does not arise in it.
10. For the reasons recorded in the foregoing paragraphs, result of this judgment is obvious.
Resultantly conviction and sentence of appellant recorded by the learned Magistrate 1st Class, hang on 28-9-1995 are set aside and he is acquitted of the offence charged with. He shall be set at liberty forthwith if not required in any other cognizable offence.