Appeal was admitted for regular hearing on 9-6-1996 and the matter was fixed for consideration of Misc. Application No. 120/L/96 for bail after issuing notice to the State for today.
2. Facts of the prosecution case unfolded by F.I.R. No. 144/90 dated 22-8-1990, which contains the contents of report No. 10 of daily diary of Police Station, Sahuka, District Vehari, can be summarised as under.
A.S.I. Inayat A.I got spy information, when he was in Kachehri Burewala, that one Muhammad Aslam alias Bucha was manufacturing liquor in Chak No.303-EB, P.S. Sahuka, Tehsil Burewala, District Vehari. As per spy information if raid is conducted, the accused as well as the manufactured material can be obtained from the said place. This information was conveyed to A.S.P./S.D.P.O., Burewala who ordered to take immediate steps to raid the said place after obtaining police force from P.S. Fateh Shah. It was further ordered that in case of success F.I.R. Be lodged and investigation be conducted The police party went to the place of incident and included constables Muhammad Ashraf and Latif Ullah belonging to P.S. Sahuka in the said raiding party The Chowkidar/Lumberdar of that village were not available at that time for the purpose of including them in the raiding party to witness the search. As a result of that raid, the petitioner was apprehended alongwith liquor and manufacturing utensils. Sample of the seized material was separated for sending the same to the concerned department after sealing the same, F.I.R. Was lodged under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order or the said Order). After usual investigation, challan was submitted before the learned Judicial Magistrate Section 30, Vehari camped at Burewala. The learned Magistrate after finding him guilty under both the Articles of the Prohibition Order convicted and sentenced the petitioner as under: -- -
(i) Under Article 3 of the Prohibition OrderFive years' R.I., fine of Rs.20,000 with 30 stripes.
(ii) Under Article 4 of the Prohibition OrderTwo years'R. I. and fine of Rs.20,000 (in default six months' S.I. under each Article).
The learned Magistrate also ordered that the sentences shall run consecutively. Even there is no mention of section 382-B, Cr.P.C.
3. As per judgment, four witnesses were examined by the prosecution namely:---
(1) Muhammad Ashraf --- recovery witness.
(2) Maqbool Hussain --- formal witness.
(3) Muhammad Aslam --- formal witness.
(4) Inayat A.I, A.S.I. --- Investigating Officer.
It was stated in the judgment that the prosecution did not produce other witnesses and closed its side on 13-12-1995. Hence it is not clear who was the second recovery witness and why he was dropped. However, the learned counsel for the State discloses that the second witness was Ghulam Dastgir but he was not examined by the prosecution.
4. When Evidence Act, 1872 was repealed and Qanun-e-Shahadat, 1984 was promulgated, the legislation replaced section 134 of the repealed Evidence Act by Article 17 of Qanun-e-Shahadat, 1984.. Both these provisions have peculiar distinctions and it would be advantageous to reproduce the same hereinbelow:--- Section 134 of the repealed Evidence Act: No particular number of witnesses shall in any case be required for the proof of any act. while Article 17 of Qanun-e-Shahadat, 1984 reads as under:--- "17. Competence and number of witnesses. ---(I) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special Law,---
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant. "
Sub-Article (2) of Article 17, particularly its clause (a), is very important and requires consideration of this Court to decide the number of witnesses whether they must be at least two or more.
Apparently if at least two men or one man or two women have to appear in the cases pertaining to financial and future obligations then it appears that their number must not be less than two where liberty of citizens regarding their Constitutional remedies with reference to their detention before or after conviction is involved because the liberty of citizens is more important than financial platters.
On account of this reason, this Court has to consider the consequences of examining only one witness instead of two named in recovery or other memos. At the time of final hearing of this appeal.
5. It is an admitted position that the raiding party basically belonged to a police station in which the place of incident was not situated. Therefore, the second point for consideration would be the consequences of raid by the said police station notwithstanding this claim that two police officials of the Police Station, Chak No.303-EB, were also accompanying the raiding party of Police Station, Sahuka.
6. It is also noticeable that the learned Magistrate convicted the appellant under Articles 3 as well as 4 of the Prohibition Order to suffer different sentences. In a number of cases it has been held that the person cannot be convicted under both the Articles when the matter arises out of one incident. Hence the third point which has also to be considered is as to whether conviction of the present appellant would be sustainable under Article 3 or under Article 4 of the Prohibition Order If his conviction is upheld under Article 4 and not under Article 3 of the said Order then the total sentence awarded by the learned Magistrate is only two years' R.I. With simple imprisonment of six months provided the appellant fails to pay fine of Rs.20,000 and in case his conviction is upheld under Article 3 of the said Order and not under Article 4 of the said Order then conviction cannot be more than 5 years besides fine because sentence of stripes has been suspended by an Act passed by the Government. In either of the cases not only the sentence falls out of the clutches of prohibition contained in section 497, Cr.P.C. But there may also be a possibility of acquittal of the appellant.
7. The collective result of all these points would not justify to keep the present appellant in jail till decision of these important points as embodied in the foregoing paragraphs and it would be in the interest of justice to grant him bail in the light of the circumstances as discussed above.
Resultantly, the appellant is granted bail in the sum of Rs.25,000 and PR bonds in the like amount to the satisfaction of the Assistant Commissioner, Burewala. The office is directed to inform the appellant about the next date of hearing of this appeal so that he should remain present in the Court at the time of final hearing of this appeal. Copy of this order be supplied to the learned Advocate by hand.