' MUHAMMAD YUNUS SURAKHVI, J.--This appeal is directed against an order passed by the Shariat Court of Azad Jammu and Kashmir on 20-6-1?97, whereby the appeal filed by the appellant was dismissed and the judgment of District Criminal Court dated 30-11-1995 maintaining the conviction recorded by Tehsil Criminal Court dated 30-11-1994 was upheld.
2. The facts of the prosecution's case as disclosed in the F.I.R. Briefly stated are that on 9-3-1994.
Raja Muhammad Tariq S.H.O. Islamgarh Police Station was on patrol duty along with Bashir Ahmed, Shah Nawaz, Liaqat Ali and Muhammad Ashraf Constables. In Kakra Town wherein an information was furnished to him by an informant at 7-30 p.m. That appellant-convict was carrying 23 bottles of Indian whisky of the value of Rs,23,000 to Potha-Cross in a gunny-bag. On this information he along with the aforesaid Constable surrounded Patho Cross. At 8-15 p.m. When Shakeel Ahmed, carrying the said bag on his shoulder reached Potha-Cross, his search was conducted by the police party. On search 23 bottles of whisky were recovered from him in presence of police Constables which were taken into possession vide recovery memo. Exh . PA.
3. On the report lodged by Muhammad Tariq, a case under section 3/4 of the Offence of Prohibition (Enforcement of Hadd) Act, (hereinafter to be referred as Hadd Act), was registered against the convict-appellant and one Zafar Iqbal. Two bottles of whisky, out of 23, were sent to Lahore for Chemical Examination. The -Assistant Chemical Examiner reported back that both the above bottles contained whisky with Alcoholic contents 41% v/v in each. In the report it was pointed out that both the bottles could cause intoxication Zafar Iqbal, the co-accused was also involved in the case on the information furnished by the accused-appellant that he had brought the bottles of whisky for him. Both the accused, after the conclusion of investigation, were sent to face their trial before the Tehsil Criminal Court Mirpur on 2-4-1994. Zafar Iqbal was acquitted by the trial Court, however, the accused-appellant was, convicted to undergo rigorous imprisonment of two years under section 3 of Hadd Act, with a fine of Rs,5,000 and 10 lashes and under section 4 of the said Act one year's rigorous imprisonment with a fine of Rs,1,000 by the trial Court. Both the sentences were ordered to run concurrently.
4. The appellant feeling aggrieved with the sentence recorded against him preferred an appeal before the District Criminal Court Mirpur but the same was dismissed on 30-11-1995. The 2nd appeal taken to the Shariat Court was also dismissed on 20-6-1997, vide the order impugned in this appeal.
5. Mr. Liaqat Ali Khan, the learned counsel for the convict-appellant submitted with vehemence that the appellant was involved in a false and fictitious case. Under section 3 of the Hadd Act the appellant was convicted only on the ground that since 23 bottles of whisky were recovered from him so the recovery of such a big quantity of whisky was indicative of the fact that the convict- appellant was engaged in carrying on the selling business of whisky but there was no evidence on the record that the appellant was connected with the selling business of whisky. It was also submitted by the learned counsel that the appellant was convicted on the basis of mere conjectures and surmises. The mere fact that 23 bottles of whisky were recovered from him was not a legal proof for convicting the appellant under section 3 of the Hadd Act, especially so when 21 bottles of whisky were not sent for the examination by the Chemical Examiner. The learned counsel submitted that this piece of evidence was not sufficient to connect the convict-appellant with the commission of the offence. As regards section 4 of the Hadd Act, the learned counsel for the appellant submitted that only 2 bottles were sent to the Chemical Examiner for his Report and his report was positive but all the same this incriminating piece of evidence was not put to the appellant while recording his statement under section 342, Cr.P.C. And no explanation was sought from the accused-appellant. The learned counsel emphasised that section 342, being mandatory in nature, its requirements must be fulfilled otherwise a conviction cannot be recorded. The learned counsel in support of his submissions cited Abdul Majid v. State 1996 PCr.LJ 309 and Saifullah v. The State 1995 M LD 946 and on the strength of these authorities pressed into service the submission that the convict-appellant may be acquitted as the prosecution failed to prove its case against the appellant beyond any reasonable shadow of doubt. The learned counsel for the appellant submitted that the alleged recovery in the instant case was effected in presence of police personnel and no independent witness of the locality was cited as a recovery witness. According to the learned counsel though the police officials are competent witnesses but their evidence is to be scrutinized with due care and caution and the same cannot be relied upon without any independent corroboration.
6. In reply Ch. Muhammad Mushtaq, the learned Additional Advocate-General, argued that during the cross-examination no enmity was suggested to the police officials by the convict-appellant which could justify the inference that the police had concocted a false case to involve the appellant. The learned counsel also maintained that there was no rule of law that a police official could not be relied upon as each and every case depends upon its peculiar facts. According to the learned counsel the mere fact that only the police officials were recovery witnesses was no ground for disbelieving their testimony.
7. After hearing the respective contentions of the learned counsels for the parties, it may be pointed out that the trial Court convicted the appellant under section 3 of the Hadd Act mainly on the ground that a big quantity of whisky was recovered from the convict-appellant which itself is a fact to prove that the appellant was bringing the said liquor for the purpose of selling. The aforesaid observation in our considered view is an inference which is based on conjectures and surmises. We have thoroughly gone through the evidence deposed by the prosecution witnesses and have reached the conclusion that there is not an iota of evidence suggestive of the fact that appellant was, in any way, engaged in selling the intoxicant. The recovery of mere big quantity of intoxicant per se is no ground for recording the convection of the appellant under section 3 of the Hadd Act for the purpose of selling the intoxicant particularly so when 21 bottles were not sent to Chemical Examiner for his examination. In absence of the Report of Chemical Examination, at least, it could not be said with regard to 21 bottles as to which type of material they were containing. Whether they were containing intoxicant material or not is a mere suspicion which cannot be a substitute of a proof which is strictly required in a criminal case to be proved against the accused.
8. In this view of the matter the evidence taken into consideration by the trial Court, the first Appellate Court, and the learned Shariat Court was not sufficient for the purpose of recording a conviction of the appellant under section 3 of the Hadd Act for the purpose of selling the intoxicant.
We are of the opinion that it is a case of gross misreading of evidence by the trial Court as well as the first Appellate Court and the Shariat Court. So, that convection of the appellant under section 3 of the Hadd Act recorded by the trial Court, District Criminal Court and the Shariat Court cannot be allowed to sustain and it is hereby set aside. Consequently, the appellant is acquitted of the offence under section 3 of the Hadd Act.
9. So far as the conviction of appellant under section 4 of the Hadd Act is concerned, here again all the Courts committed an illegality by not putting an incriminating piece of evidence to the accused-appellant and seeking his explanation under section 342, Cr.P.C. Which is a binding provision of law. Section 342, Cr.P.C. Reads as under:-- "342. Power to examine the accused.--(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the 'Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence."
The section is based on the principle involved in the maxim audi alteram partem, namely, that no one should be condemned unheard. Where a person is to be charged with any penal liability he should be made aware of all the facts and circumstances existing against him in order to enable him to give explanation in respect of those charges and evidence produced against him.
Departure from such procedure could be fatal to prosecution as a very important step in the trial would, thus, be bypassed making the entire, trial completely vitiated. The accused should be heard, not merely on what is prima facie proved against him but also on every circumstances appearing in evidence against him.
10. In derogation of the aforesaid provision of law, the two bottles of whisky which were allegedly recovered from the accused and sent to Chemical Examiner for his report and his report being positive was admitted into evidence as Exh.PC during the evidence of Raja Muhammad Tariq.
Station House Officer, but the same was not put to the accused under section 342, Cr.P.C. For seeking his explanation on this incriminating piece of evidence. This lapse on the part of trial Court has resulted into an illegality. The normal course for us would have been to set aside the conviction and then to remand the case to the trial Court for putting the incriminating evidence to the appellant under section 342, Cr.P.C. However, there is a peculiar feature of the case that sentence of one year with a fine of Rs,1,000 was awarded to the appellant under section 4 in respect of 23 bottles while we have held that conviction if at all can be recorded only in respect of two bottles which were sent to the Chemical Examiner. In this view of the matter we are of the considered view that ends of justice will be met if we reduce the sentence to the sentence already undergone under the situation. It is ordered accordingly.
' The appeal stands decided in the terms indicated above.