' This judgment will dispose of Criminal Appeal No,52/L of 2003 and Criminal Appeal No,57/I of 2003.
In fact two accused persons namely Ghulam Shabir and Waheed Khan were tried together by Chaudhry Muhammad Yousaf Aujla, Senior Civil Judge/Magistrate Section 30, Mianwali. Vide his judgment, dated 28-1-2003 he convicted both the appellants under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to undergo four years' R.I. Each and fine of Rs.20,000 each, 'in default to suffer six months' S.I. And under Article 4 of the Order to suffer two years' R.I. Each, fine of Rs.10,000 each in default to suffer further three months' S.I. The benefit of section 382-B, Cr.P.C. Was extended.
2. Ghulam Shabir alone filed Criminal Appeal No,52/L of 2003 which was received by the office on 25-2-2003. First appeal was pending when both the convicts Ghulam Shabbir and Waheed Khan filed a joint Criminal Appeal No,57/I of 2003, which was received by the office on 31-3-2003. Both the appeals arise out of the common judgment, dated 28-1-2003, therefore, they have been taken up together.
3. The prosecution case in brief as set up by Malik Allah Yar, Inspector, as first informant is as under:-- "On 4-4-2002 at about 10-00 a.m. On receipt of secret information, Malik Allah Yar, Inspector Incharge Anti-Narcotics Staff, Mianwali constituted a raiding party comprising of himself and Shaheen Shah, S.-I. Azizullah Khan, A.S.-I. Madad Khan, A.S.-I., Muhammad Anwar Khan H.C.
Sanaullah, Rafiullah, Muhammad Akram, Khan Muhammad, Muhammad Iqbal, Manzoor Hussain, Hidayatullah, Muhammad Arshad, Javed Khan, Muhammad Asghar, Constables, Anti-Narcotics Staff and Mir Khan, S.-I. Fakhar Zaman H.C. Habibullah constable employees of Police Station City Mianwali. They held a picket at Edgah Chowk when a secret informer informed that Waheed Khan and Ghulam Shabbir, appellants who jointly deal in liquor and supply wines and spirits in Mianwali, were coming towards Mianwali. They had a huge quantity of liquor with them, which was being transported in a rickshaw. Accordingly they saw a rickshaw coming on road and aheading towards MianWali, which was intercepted and it was found that rickshaw was driven by Ghulam Shabir appellant while Waheed Khan appellant was sitting on passenger seat. Cardboard cartons were lying by his side. They had been tied together with a string. Both the occupants i,e, Ghulam Shabbir and Waheed Khan, appellants tried to run away on seeing the police party. Waheed Khan succeeded to escape. However, Ghulam Shabbir was apprehended at the spot. The rickshaw was searched and 8 cardboard cartons which had been tied together were recovered. Each carton contained 50 bottles of liquor. The bottles contained label of PHP Company. After securing the bottles, 8 samples of six ounces each were obtained from the bottles. The specimen were sealed whereas remaining bottles were also kept in the cardboard cartons and were sealed. According to first informer, the accused persons admitted that they had brought the liquor for onward sale."
' Case F.I.R. No,129 was registered with Police Station City, Mianwali on 4-4-2002 at 11-25 a.m. As noted above, Ghulam Shabbir had been apprehended on the spot whereas Waheed Khan was arrested on 21-6-2002. During investigation, both the appellants were found guilty and sent up to face trial in the Court of Magistrate Section 30, Mianwali. The learned Magistrate after recording evidence and collecting relevant material convicted both the appellants and sentenced them as detailed above. The appellants have assailed their .Conviction and sentences through present appeals.
4. It was argued by the learned counsel for the appellants that the prosecution has not discharged its onus. Therefore, the learned trial Judge has erred in convicting them.
5. The prosecution evidence comprises of six witnesses. Out of them P.W.1 is a formal witness of receiving sealed parcels of liquor and thereafter dispatching them onward to the Chemical Examiner. The parcels remained intact during his custody.
6. P.W.2 is Malik Allah Yar, Inspector. He narrated the prosecution version as stated above. He gave the details as to how the rickshaw was intercepted and the appellants were found in possession of illicit liquor. He secured liquor and also secured the specimen to ascertain whether the same was contraband liquor or not. He prepared the complaint Exh.P.B. And sent the same to the police station for recording formal F.I.R. Exh.P.A./1.
7. P.W.3 Madded Khan was accompanying Malik Allah' Yar, P.W.2. He made an identical statement and as such supported and endorsed the statement made by him in presence of the members of the raiding party. He proved the recovery of illicit liquor and its possession. P.W.4 Ghulam Abbas is a formal witness who delivered the sealed parcels intact in the office of the Chemical Examiner, Rawalpindi.
8. P.W.5 Sahib Khan, Sub-Inspector, partly investigated the case. He arrested Waheed Khan on 21- 6-2002. As noted above, Ghulam Shabbir had been arrested on the spot on 4-4-2002. P.W.6 is Mehar Khan, Sub-Inspector. According to him, on receipt of secret information, a raiding party was constituted under the supervision of Malik Allah Yar, Inspector, Incharge, Anti-Narcotics staff and furnished the details as already given by this witness. After examining the witnesses, the prosecution closed its case.
9. The accused/appellants were examined under section 342, Criminal Procedure Code. They denied the allegations and also recovery and pleaded their implication on account of enmity because an abduction case had been got registered against the police at the instance of Waheed Khan, appellant. Ghulam Shabbir, however, stated that he was merely a rickshaw driver and was not concerned with the transporting of illicit liquor. He too pleaded that he had been falsely implicated due to enmity with the police. None of the appellants appeared as his own witness as envisaged under section 340(2), Criminal Procedure Code. However, one witness namely. Ameer Abdullah Khan was examined as D.W.1. He was the owner of rickshaw and stated that appellant Ghulam Shabbir was his driver and he used to pay Rs.100 daily to the witness as rent. According to him, Ghulam Shabbir had a good moral character.
10. As observed supra, the appellants were sent up to face trial under Articles 3 and 4 of the Order.
The learned counsel initially argued that the prosecution has not been able to prove guilt by producing any independent witness from public. All the prosecution witnesses are police officials or employees of Anti-Narcotics Department. The argument does not contain any force because in case of raid which is conducted on receipt of secret information, it is not practically possible for the raiding party to associate private persons in the raid. Had it been done, the possibility of leaking out the information to the offenders cannot be ruled out. Otherwise also the people from general public avoid to stand witnesses especially in cases of recovery of narcotics etc. No one would like to invite trouble and enmity with the narcotic dealers. It has been laid down time and again that a Police Officer/Government official is as good a witness as anyone else unless it is proved that he had a motive or malice to falsely implicate an innocent person. In the present case, about 15 officials from police and Anti-Narcotics Force were associated as members of the raiding party. It would not be possible to believe that all these 15 officials with different ranks and positions would have joined hands merely to falsely implicate the appellants. Apart from the oral statements made by the police officials, their deposition is supported by the factum of recovery of huge quantity of liquor from the possession of the appellants. Such a huge quantity cannot be falsely planted. The quantity of the recovered illicit liquor comprising 400 bottles lends a credible support to the prosecution version. The recovered bottles had been found to contain illicit liquor as per report of the Chemical Examiner. The prosecution, therefore, has successfully proved that 400 bottles of illicit liquor had been recovered from the possession of the appellants.
11. Although there is no direct evidence that the liquor was meant to be sold yet the huge quantity of liquor by itself suggests beyond doubt that the same was not meant for personal consumption but was being transported for onward sale and supply.Admittedly the liquor was being transported in a vehicle, therefore, ingredients of Article 3 of the order C are squarely fulfilled. The appellant's conviction under Article 3 of the Order is, therefore, unexceptionable and thus, upheld.
12. The contention raised by the learned counsel that it is against the scheme of the Order that conviction should be recorded both under Articles 3 and 4 simultaneously. Obviously if some narcotics is kept for sale then the element of possession by the holder is necessarily present. The contention that it would be not only inappropriate rather illegal to record conviction both under Articles 3 and 4 of the Order. The learned counsel in support of his contention has also placed reliance on the judgments reported in 1992 SCM R 108, 1996 PCr.LJ 1856. The contention has a force and cannot be repelled. As such the appellants' conviction under Article 4 of the Order and the sentence of two years' R.I. Thereunder is set aside.
13. As a sequel to the above discussion, the appellants' conviction under Article 3 of the Order and sentence of four years' R.I. And fine of Rs.20,000 each, or in default to suffer six months' S.I. Each is maintained and upheld. The appellants' conviction and sentence under Article 4 of the Order is set aside.
' Benefit of section 382-B, Criminal Procedure Code shall be extended to the appellants.
14. The appellants are present in Court. They are on bail. They have surrendered and have been taken into custody to serve out the remaining term of their respective sentences.