' Appellants have assailed an order delivered by the Court of Additional Sessions Judge-I, Quetta on 28-8-1997 whereby they have been convicted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, hereafter to be referred as the said order, and have been sentenced to R.I. For 3 years each and 5 stripes each. Benefit of section 382-B, Cr.P.C. Has been extended to them.
2. As per allegation of the prosecution, on 1-4-1997 a raid was conducted in Rooms Nos.11 and 12 of Ibrahim Hotel, Munsafi Road, Quetta by the police on the basis of an information and both the appellants were caught alongwith the material and machinery for manufacturing wine. Five bottles each of 1/2 litre of local wine and one bottle consisting of 1/4 litre of local wine were also recovered and all this recovery was made from Room No,11 whereas from Room No,12, 16 empty bottles of 1/2 litre and 4 empty bottles of the capacity of 1/4 litre were also recovered and in this context a recovery memo. Was prepared which is Exh.P.3/A. Resultantly Muhammad Ilyas (P.W.4), Inspector of Police and S.H.O. Police Station. City Quetta became the complainant and lodged F.I.R. On the same date at 4-50 p.m. The appellants were immediately arrested, challaned and charged under Article 3/4 of the said Order and this charge was read over to them in English and Urdu which language they understood fully well to which appellant Aaqil son of Muhammad pleaded not guilty but also stated that he was making wine for his own use as he usually consumed for himself. Such a type of reply was also given by appellant Namir Hussain.
3. Prosecution examined 5 witnesses. Ghulam Abbas (P.W.1), Manager of Ibrahim Hotel, Quetta has deposed that the appellants had taken on rent Rooms Nos.11 and 12 of the said hotel for one month.
On 1-4-1997 he himself informed the police that the appellants used to drink liquor in his hotel.
Police reached at his hotel at 2-00 a.m. At the night and he was not present in the hotel. Police arrested the appellants and took them away. During cross he has admitted that in his presence the appellants had never used liquor for their personal consumption. Syed Abdul Jabbar (P.W.2), the Chemical Expert of F.S.L.,Quetta has deposed that he received three sealed parcel for chemical analysis on 3-4-1997 from S.H.O. Police Station City. In parcel No,1 there were 6 bottles, in No,2 there was a Hammam and parcel No,3 there was a pressure cooker. On chemical analysis he found that in all these articles there existed liquid alcohol. He has proved his report of chemical analysis as Exh.P.2/A. Raheel Akbar Shah (P.W.3)," A.S.-I. Has proved that on 1-4-1997 he was posted at Police Station City, Quetta. On the said date during the night at about 3-55 a.m., he was present along with other personnel of police including Muhammad Ilyas the S.H.O. And complainant of the case.
They received an information about the distillation of liquor and then they raided first of all Room No,11 of Ibrahim Hotel. In this room they found one Persian pressure cooker in which raw material for the preparation of liquor was there. They found six small bottles filled with local liquor and from the same room they found one Hammam in which also raw material for the distillation of the wine was present. Then they went to Room No,12 from where they found 16 empty bottles of 1/2 litre and 4 empty bottles of 1/4 litre. Recovery memo. Was prepared and it was signed by him which is Exh.P.3/A. The recovery memo. Was also signed by Nadeem S.-I. And Muhammad Ilyas, S.H.O. Which signature have been identified by him. He has produced all the material mentioned above as Articles Nos.P.1 to P.34 which were taken into custody by the police under various exhibits.
Muhammad Ilyas (P.W.4), S.-I./S.H.O., complainant and Investigating Officer, has proved that on the basis of secret information on 1-4-1997 he raided Ibrahim Hotel where he found the appellants manufacturing local liquor. For this raid he had arranged warrants from the Judicial Magistrate and he had raided the place of occurrence under the surveillances of the D.S.P. He has proved the entire recovered material. Malik Arshad (P.W.5), Investigating Officer of this case has proved the various steps taken by him during investigation and has also proved memo. Of recovery Exh.P.3/A.
He has also proved the site plan prepared by him as Exh.P.5. During cross he has admitted that both the appellants are Mohajirs from Iraq and are residing in Quetta.
' During their statements under section 342, Cr.P.C. Both the appellants have replied to question No,2 that it is correct that the material and machinery were found which was used for making wine but that they were making wine for them. They have declined to be examined on oath and they have led no defence.
4. I have heard the learned counsel for the appellants and State. The learned counsel for the appellants has first of all contended that the entire evidence does not prove the sale of the intoxicating liquor and, therefore, the defense plea of the manufacturing of liquor as made for personal usage inspires confidence. Since the conviction has been made under Article 3 as well as under Article 4 of the said Order, therefore, it shall be essential to quote the concerned portion of these articles. Article 3: Prohibition of manufacture, etc. Of intoxicants.--- (1) Subject to the provisions of clause (2) whoever;
(a) imports, exports, transports, manufactures or processes any intoxicant; or
(b) bottles any intoxicant; or
(c) sells or serves any intoxicant; or
(d) allows any of the acts aforesaid upon premises owned by him or in his immediate possession; shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping not exceeding thirty stripes and shall also be liable to fine."
' Article 4: Owning or possessing intoxicant. Whoever owns, possesses or keeps in his custody any intoxicant shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, and shall also be liable to fine."
It is clear then that under Article 3 of the said Ordinance, sub-Article (1), clause (a), simple manufacturing or processing of any intoxicant is attracting the conviction. Consequently, then, in the present case of the appellants the evidence as brought on the record proves that manufacturing or possessing of intoxicant falling within the meaning of Article 2(g) of the said order was being continued. Hence, the conviction under Article 3 of the said order is attracted. This way conviction under Article 4 of the said order is attracted because of the fact that some bottles filled with local liquor were found from the possession and custody of the appellants. I disagree with the learned counsel who has relied upon the principle quoted in Para. No,6 of a judgment of this Court cited as 1991 PSC 1016, in view of the fact that in the said case recovery of such material was made which was not manufacturing the intoxicant immediately. In the present case machinery which was recovered and in which machinery raw material for manufacturing of the intoxicant was found and .About this machinery namely Hammam and Pressure Cooker, the report of the chemical analysis is that it contained alcohol. The present case is distinguishable from the cited one in which Para. No,6 is quoted verbatim.
' On the question of recovery of material which could be used for manufacture of alcohol the learned counsel for the appellant contended that the prosecution has not produced any satisfactory evidence to show that this material was being used for any unsavoury object.
Contention has force. Moreover, the presence of any such material in any house would not be conclusive evidence of the fact that the accused at the relevant time or during the relevant period was actively involved in operating a distillery for manufacturing the alcohol. In other words if some pieces of a distillery which could also be utilized for the purposes of preparation of alcohol was found lying in abandoned condition that would not, in my humble opinion, be sufficient evidence to suggest that this material was being used as 'Bhatti' {{URSU TEXT}}or that accused was indulging in manufacture of alcohol at the relevant time. May be years before he may have used this material but that would not justify a conviction for manufacture of alcohol which may have been produced by the accused or some of his friends long time before and which may be lying in the premises as a junk. There is no evidence on the record which could fulfill the requirements of Article 3 of the Order as I read it and in my opinion conviction under Article 3 of the Order cannot be sustained."
5. It has also been contended that the appellants are Arabs and they do not know Urdu or English languages and, therefore, in the absence of translator they have been prejudiced. The learned counsel for State on the other hand has contended that in the plea under the charge both the appellants have signed in English which is indicative that they know English language. Another contention of the counsel for State is that during the entire proceedings, the appellants have never raised such an objection that they are being prejudiced as they do not understand Urdu or English languages. In view of this position I also find that para. No,14 of the memo. Of appeal is an afterthought and is far from truth.
6. Now remains the question as to the quantum of the sentence. The trial Court has not separated quantum of sentence under Article 3 and Article 4 of the said Order whereas the appellants have been convicted under both these articles. Since some bottles of local liquor of smaller size have been found from the possession and custody of the appellants, therefore, the maximum punishment which is attracted under Article 4 is two years and fine. So far as whipping is concerned, it has already been set aside under the Abolition of Whipping Act, 1996. However, the trial Court has only punished the appellants by way of recording its punishment for R.I. For 3 years and has not made a reference to fine which is mandatory under Article 4 of the said Order.
Consequently, I hereby convict the appellants under Article 4 of the said Order for keeping into their possession and custody small bottles of their own manufactured local liquor by the imprisonment of 2 years' R.I. And a fine of Rs,2,000 in default of payment of which the defaulter shall have to undergo S.I. For 2 months. So far the question of manufacturing and processing intoxicating liquor is concerned, it stands proved as discussed above. Both the appellants are convicted under the said article and punished for R.I. For 2 years and this will bring the reduction into the imprisonment of R.I. Of 3 years which has been awarded by the Trial Court by one year. Under this Article also punishment of fine is mandatory and both the appellants are fined to Rs,2,000 each under this Article and in case of default of payment of fine the defaulter shall undergo further S.I. For 2 months.
' Both the punishments under Articles 3 and 4 and punishments for default in payment of fine shall run concurrently and the benefit of section 382-B, Cr.P.C. Is also extended to them.
' With these modifications in the impugned judgment, it is upheld and the appeal is dismissed.