1. ' Applicant Mst. Sheema alias Rehana D/o Shahnawaz has filed this application under section 561- A, Cr.P.C. For seeking quashment of the proceedings of Criminal Case No.251 of 2003 arising out of the .F.I.R. No.32 of 2003 under Articles 3/4, Prohibition of (Enforcement Hadd) Order. 1979 of P.S. Railway Station Cantt. Karachi pending trial in the Court of learned Civil Judge/Judicial Magistrate South Karachi.
2. ' The applicant moved an application before the trial Court under section 249-A. Cr.P.C. Which was dismissed by order dated 18-9-2003. The said order of the trial Court was assailed in Revision No.70 of 2003 which was transferred to the Court of learned 111rd Additional Sessions Judge, Karachi South but the Revision Application was dismissed by maintaining the order passed by the trial Court. Hence this application.
3. ' Mr. Shaikh Jawed Mir, learned counsel for the applicant submits that an F.I.R. Being Crime No.32 of 2003 was lodged on 3-4-2003 by respondent, Manzoor Ali Jamali was present at traffic point posted Parcel Office, Karachi Cantt. Railway Station alongwith P.C. Abdul Ghaffar, P.C. Ghulam Haider and P.C. Abdul Majeed for suppression of criminal activities when he stopped the co- accused by off-loading two irons boxes from a taxi in suspicious manner, the police party made enquiry from accused Bin Yamin as to what was in the boxes but the accused started giving evasive replies and stated that the same contain crockery. The said accused was asked to open the boxes, then opened the same from the keys which he was having the search of the boxes was made and there was recovery of twelve bottles of foreign liquor from one of the iron box and another twenty four bottles from the another iron box. The bottles were found to be of Johnny Walker, Black Label, Old Scatch Wisky. One bottle each was separated from both the boxes for chemical analysis and Mashirnama was prepared at the spot. Whereafter, the accused Bin Yamin and property were taken to the police station where the F.I.R. Was lodged.
4. ' As per prosecution, during the investigation co-accused Bin Yamin disclosed that the present applicant on the day of incident had given him the recovered property on the such disclosure the applicant was arrested from her house on the pointation of co-accused Bin Yamin, whereafter the charge-sheet was filed having jurisdiction to face the trial regarding the recovery of foreign liquor.
5. ' Mr. Shaikh Jawed Mir, learned counsel for the applicant has contended that the applicant is absolutely innocent and no incriminating recovery was effected from the possession of the applicant/accused, the trial Court and the Revisional Court have not considered the grounds for acquittal of the applicant/accused, there is no evidence against the applicant/accused excepting the disclosure made by the co-accused Bin Yamin before police during the police custody and such disclosure is inadmissible in evidence by virtue Articles 38 and 39 of Qanun-e-Shahadat Order, 1984. It is further pointed out that the co-accused Bin Yamin has also filed a statement in the trial Court prior to the disposal of the application under section 249-A, Cr.P.C. To the effect that he has not disclosed any fact before police nor the prosecution got confessional statement of co- accused before the area Magistrate.
6. ' Mr. Shaikh Jawed Mir has further argued that the learned 11Ird Additional Sessions Judge, Karachi South has agreed to the proposition that the disclosure of co-accused, this is not sufficient to connect the applicant accused but on the other hand the application filed by the applicant accused was dismissed that there is recovery of 36 bottles on the charge is groundless and there is no probability of conviction of applicant by the trial Court on such disclosure.
7. ' Mr. Shaikh Jawed Mir learned counsel for the applicant has relied upon the case of Arif Nawaz Khan and 3 others v. The State PLD 1991 Federal Shariat Court 53, in the case of the State through Deputy Director Anti-Narcotic Force Karachi v. Syed Abdul Qayyum 2001 SCM R 14(b) in the case of David Dafaur v. The State SBLR 2001 SC 132.
8. ' Mr. Mehmood Alam Rizvi, learned Standing Counsel for the State has conceded for the quashment of the proceedings pending against the petitioner (Mst. Sheema alias Rehana).
9. I have considered the arguments advanced by the learned counsel for the applicant, it is well- settled law that any disclosure of co-accused before police investigation against the other co- accused is not acceptable if there is no other proof against the said co-accused. Admittedly the interrogation statement of the co-accused Bin Yamin was recorded at police station. But it was disclosed during the investigation that accused Sheema alias Rehana had provided the said contraband Alcohal which is inadmissible in evidence the person who confess his guilt before police or before the Court of law becomes FASIQ and ceases to be ADIL and thus his evidence is not acceptable against co-accused. Admittedly there is no other evidence against the present applicant/accused (Sheema alias Rehana) except the disclosure of co-accused Bin Yamin.
10. Although the trial Court has framed the charge against the applicant/accused and other co- accused for levelling the specific allegation that accused Sheema alias Rehana had supplied that the said bottles of liquor of co-accused Bin Yamin but there is no prosecution evidence for such allegation. Admittedly the F.I.R. Was registered under Articles 3 and 4, Prohibition of Enforcement of Hadd Order, 1979. The Article 3 is in respect of prohibition and penalties whoever imports, exports, transports, manufactures or possesses any intoxicant whereas the Article 4 described as under:-- ."
(a) imports, exports, transports, manufacturers 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 strips, and shall also be liable to fine.
11. "[(2) Whoever;
(i) imports, exports, transports, manufacture, 'or traffics in, opium or coca leaf or opium or coca derivatives; or
(ii) finances the import, export, transport, manufacture, trafficking of, opium or coca leaf or coca derivatives shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty strips, and shall also be liable to fine] "Art.4. Owning or possessing intoxicant. Whoever owns, possess or keeps in his custody any intoxicant shall be punished with imprisonment o either description for a term which may extend to two years, or with whipping not exceeding thirty strips, and shall also be liable to fine: ' Provided that nothing contained in this Article shall apply to a non-Muslim Foreigner or to non- Muslim citizen of Pakistan who keeps in his custody at or about the time of ceremony prescribed by his religion a reasonable quantity of intoxicating for the purpose of using it as a part of such ceremony: ' Provided further that, if the intoxicant in respect of which the offence is committed is heroin, cocaine (---) opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of raw opium or coca leaf, the offender shall be punishable with imprisonment for life or with imprisonment which is not less than 2 years and with whipping not exceeding thirty strips and shall also. Be liable to fine.
12. Admittedly the recovery of ceased material has been effected from the co-accused Bin Yamin and the evidence of the said accused cannot be termed to be an evidence of prosecution witness. It is observed in the case of Arif Nawaz Khan and 3 others v. The State PLD 1991 Federal Shariat Court 53.
13. The observation is reproduced as under:-- "that the confessional statement of accused person against the co-accused is not acceptable if there is no other proof against co- accused---Such confessional statement however, may be considered as (Qareenah), as circumstantial piece of evidenc against the co-accused and can be treated as basis for Ta'zir in the present case the co-accused had made any confessional statement before the Magistrate or before the trial Court, the co-accused confessed his crime becomes a Fasiq and ceases to be Adil therefore, his evidence cannot be accepted. It is true that a confessional statement made by an accused may be used against other co-accused as circumstantial evidence, which means that it can be taken into consideration as corroborative piece of evidence, if there is a direct independent evidence connecting the co-accused with the commission of the offence. In the trial Court the co-accused Bin Yamin filed an application by a statement that no disc closure was made by him against the present applicant/ accused for supplying of ceased material."
14. ' In the reported case there was a confessional statement involving. The co-accused. The case of Arif Nawaz Khan was challenged his conviction and the sentences before the Federal Shariat Court which was set aside and the appeal was allowed. The confessional statement was not believed as there was a delay in recording the confessional statement and the same was remained unexplained.
15. Mr. Mehmood Alam Rizvi, learned Standing Counsel has very fairly conceded that there is no prosecution evidence against the applicant/accused but disclosures as made by the co-accused Bin Yamin during the interrogation stage regarding the involvement of the applicant/accused has no value in the eye of law.
16. ' By virtue of Articles 38 and 39 of Qanun-e-Shahadat Order, 1984 the disclosure made by the co- accused Bin Yamin before the police during the police custody is inadmissible in evidence and same cannot be relied upon. In case the prosecution is allowed to lead the evidence, then there is no witness on behalf of the prosecution to bring the evidence against the applicant/accused.
17. There is no probability of the conviction and charge appears to be groundless. The continuance of proceedings against the applicant/ accused Sheema alias Rehana amounts to abuse of the process of law.
18. ' In view of the foregoing reasons the proceedings pending against the applicant/accused (Mst.
19. Sheema alias Rehana) before the learned XVth Civil Judge and Judicial Magistrate South are quashed. The trial Court is directed to proceed with the case of co-accused Bin Yamin in accordance with law.
20. ' The above are the reasons by my short order dated 2-4-2004.