1. ' By this application, made under sections 435 and 439, Cr.P.C., the learned counsel for the applicant, has called in question the legality, propriety and correctness of the judgment passed by the two Courts below namely Extra-Joint Civil Judge and F.C.M., Sukkur, and learned Sessions Judge, Sukkur, vide two separate judgments. Dated 17-7-2001 and 8-8-2001, respectively.
2. ' The facts germane to the prosecution story are that on 11-6-1998 at 9-45 p.m. Complainant S.H.O.
3. Ghulam Sarwar of Police Station Abad set the law into motion by filing F.I.R. At Police Station Abad, District Sukkur alleging, inter alia, that on the same day as the complainant alongwith A.S.-I Imtiaz Shafqat, P.C. Muhammad Rafiq, P.C. Khadim Hussain Lakho, P.C. Qurban Ali, who was also driver of the vehicle, left police station vide Roznamcha Entry No,20-1745, dated 11-6-1998, for patrolling within the local limits of his jurisdiction. While patrolling from different places at about 9-00 p.m., they reached near the overhead bridge on Military Road where they observed one person who after de-boarding from rickshaw started moving fast towards A.D.C. Colony. The complainant party stopped .The mobile and directed him to stop. He was immediately encircled, apprehended and interrogated about his antecedents on which he disclosed his name as Akhtiar Hussain son of Shah Nawaz Solangi resident of Wada Mach, District Khairpur. He was arrested as suspect under section 54, Cr.P.C. And bodily searched in presence of Police Mashirs namely A.S.-I. Imtiaz Shaukat and P.C. Muhammad Rafiq. On his personal search, one black plastic coloured bag was secured from his right hand containing three half bottles of wine, the details of which have been given in the F.I.R. Besides, one golden ring, cash of Rs,200 in different denominations and National Identity Cardin the name of applicant were recovered from the pocket of his shirt. For wine he confessed that he used to drink it and sell it. Since the applicant was carrying out wine in contravention of Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, first of all Mashirnama was prepared in presence of abovesaid Mashirs and subsequently F.I.R. On behalf of the State was recorded.
4. ' The investigation followed and in due course the applicant was sent up to stand trial in the Court of Joint Civil Judge and F.C.M., Sukkur.
5. ' I have heard the learned counsel for the applicant and the learned Assistant Advocate-General, Sindh. It has been contended by the learned counsel for the applicant that the case against the applicant was false. He was implicated due to enmity with P.C. Muhammad Rafiq Khoso as a consequence of tribal dispute in between Khosas and Solangies. It has, further, been contended by the learned counsel for the applicant that the arrest of the applicant and his involvement in the case was in contravention of section 103, Cr.P.C. Inasmuch as the applicant was arrested on a main road which was a thickly populated area, yet not independent person was taken from the vicinity of crime to act as Mashir. It has, also, been argued by the learned counsel for the applicant that out of three bottles of wine being allegedly recovered from the applicant, only half bottle was sent to Chemical Examiner and there is no evidence that at the time of recovery the applicant was selling the alleged illicit liquor. It has, further, been explored by the learned counsel that the recovered bottles were manufactured by the same Manufacturing Company nor there is any evidence of having seals to the recovered bottles. The learned counsel also went on to argue that the applicant was arrested on 11-6-1998, the alleged liquor was sent by S.H.O. Of Police Station Abad on 29-6- 1998 as per his Letter No,162, dated 27-6-1998 to the Chemical Analyser which show that the property was kept at the police station for 16 days and was not transmitted properly to the Chemical Examiner and the delay in dispatch in such circumstances was not explained by the prosecution. The learned counsel laid down an emphasis that the report of Chemical Examiner in the circumstances had become unreliable. Moreso, the learned trial Court while recording statement of the applicant under section 342, Cr.P.C. Had not put such question to the applicant. It has, lastly, been contended by the learned counsel for the applicant that the report of the Chemical Examiner without examining him in evidence can be of no avail to the prosecution. On all these scores, the learned counsel has laid an emphasis that the findings recorded by the two Courts below cannot be of any help to the prosecution and stressed the need to acquit the applicant. He has relied upon the cases of Naseer v. The State PLD 1981 Kar. 41; Muhammad Arshad and another v. The State 1986 PCr.LJ 1506, Ishtiaq Ahmed v. The State 1996 PCr.LJ 1811 and Javed Akhtar v. The State PLJ 1997 Cr.C. Lahore 1310 (DB), in support of his contentions.
6. ' The learned Assistant Advocate-General, Sindh, appearing on behalf of the State has opposed the acquittal on the ground that the applicant was arrested during the odd hours of night i,e, 9-45 p.m.
7. And as such there is no violation of rule as laid down under section 103, Cr.P.C. He also argued that it is a case of concurrent findings of two Courts below namely Joint Civil Judge and F.C.M., Sukkur and as such judgments of the two Courts below be maintained.
8. ' I have given my anxious consideration to the arguments of both the learned counsel appearing on behalf of the respective parties and have also perused the record. I have also gone through the judgment of the two Courts below.
9. ' It seems to be well-settled proposition of law that in criminal case the burden of proving the case rests on the prosecution which is duty bound to prove its case against the accused beyond all reasonable doubt. This duty, it may be mentioned, does not change or vary even in a case in which no defence plea is taken by the accused. The defence plea is always to be considered in juxtaposition with the prosecution case and, in the final analysis if defence plea is proved or accepted then the prosecution case would stand discredited and shattered. However, if the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case, then in that eventuality it would be enough. It may be noted that in case it is not established at all no benefit would accrue to the prosecution on that account. It is duty of prosecution to prove its case beyond doubt could not be diminished even if the defence plea is not proved or is found to be palpably false. Reliance is placed on case titled as Ashiq Hussain v. State 1993 SCM R 417.
10. ' Similarly, it was held in the case titled as Hakim Ali and others v. The State 1971 SCM R .432 that in criminal trials the onus always lies on the prosecution to prove its case and prosecution has to succeed upon strength of its own case and not on the weakness of the defence.
11. ' Coming to the nature of evidence, it has come on record that on the fateful day, the applicant while going was apprehended and on his personal search three half bottles of liquor alongwith other minor articles were recovered from his possession in presence of police Mashirs. It has also come on record that the place of recovery was a main metalled road where the traffic was plying for 24 hours and moreso it has also come on record that the alleged liquor was recovered from the applicant from a place which was a thickly populated area and in the circumstances it was the bounden duty of Investigating Officer to have made efforts for securing independent persons from the vicinity of crime to act as Mashir but he has not done so. Investigating Officer could have called some independent persons and persuaded them to act as Mashir and any failure of his efforts, he could have mentioned such fact in the police diaries that despite of all the efforts he failed to make arrangement of associating independent persons as Mashir but fie has not done so. In the circumstances, I am bound to hold that the Investigating Officer has not made honest efforts to procure the attendance of independent Mashirs as contemplated under section 103, Cr.P.C.
12. ' The next point relates to the recovery of the intoxicating liquor from the possession of the applicant. It has come in evidence that during the arrest and recovery of the applicant three bottles of liquor were recovered from the possession of the applicant but out of which only half bottle was sent to Chemical Examiner for analysis whose report as Exh.P.5-C is to the effect that the same was positive. The prosecution neither alleged that the recovered bottles were manufactured by some Manufacturing Company nor that the same had seals. It was bounden duty of the raiding party to have obtained samples from each bottle to prove that all those bottles contained liquor.
13. Besides, there is no evidence that the liquor being taken by the applicant was being sold to anyone. There is also no evidence to substantiate that the applicant was present there for the purpose of selling. The reference is made to a case of Muhammad Arshad and another v. The State 1986 PCr.LJ 1506.
14. ' Coming to the next point which relates to the delay in dispatching the alleged liquor to the Chemical Examiner for examination and test. It has come in evidence that the applicant was arrested on 11-6-1998, the alleged liquor was sent by S.H.O. Of Police Station Abad, District Sukkur on 19-6-1998 as per his Letter No,162, dated 27-6-1998 which shows that the same was dispatched with the delay of 16 days and there is no explanation for such delay. The reference could be made to the case of Jawed Akhtar (supra), wherein the property was kept at the police station for about seven days and thereafter the same was transmitted to the Chemical Examiner. It was held by the learned Judge in Chamber that the delay in dispatch of the stuff was not explained with the result the report of the Chemical Examiner was treated as unreliable. Moreso, the above circumstance of dispatch of the alleged liquor to Chemical Examiner was not put to the accused in the statement of accused recorded under section 342, Cr.P.C. And as such the same cannot be used as piece of evidence against the applicant. The reference is made to the case of Munawar Hussain alias Asghar Ali v. The State 1991 SCM R 1601.
15. ' The defence of the applicant is that his involvement in false case of this nature was due- to enmity and malice inasmuch as the Investigating Officer was motivated by P.W. Muhammad Rafiq Khoso with whom he had tribal dispute. The applicant is Solangi and P.W. Muhammad Rafiq is Khoso, by caste. Both being involved in a tribal dispute the applicant has been falsely implicated in this background. It has been admitted by P.W. Ghulam Sarwar in his cross-examination that there is an existing dispute between the two tribes namely Khosas and Solangi, and therefore, the false implication of the applicant in the IE circumstances cannot be ignored.
16. ' In the circumstances, discussed above, the revision application is accepted and the judgments of the two Courts below are set aside. The F applicant is set at liberty if not required in any other case.
17. He is on bail, his bail bond stands discharged.