ROBIN Versus THE STATE S. Murtaza Ali Zaidi , M. Rafi Siddiqui

This is an appeal against the order of conviction passed on 16-5-1987 by Syed Tasaddaq Hussain Bokhari, Magistrate 1st Class, Multan whereby the appellants (1) Robin, and (2) Hadayat both sons of Jalal, Christian, resident of Chak No. 13/MR District Multan have been found guilty of the offence punishable under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and each sentenced to three years' R.I. with fine of Rs.2,000 or in default to further undergo S.I. for six months. They have also been awarded 20 lashes. The allegations against the appellants are that they were found running a distillery for the manufacture of illicit liquor and on 10-9-1986 the implements of distillery, and a bottle containing 50 ounces country liquor found from a Haveli allegedly owned by the appellants.

2. On 10-9-1986 at 2-10 p.m. (day time) a report was lodged by Tariq Hussain S.I. in the Police Station Makhdoom Rashid, Multan alleging that on spy information the raiding party including the police official and the Lambardar of the village (Chak No. 13/MR) and one Bashir Ahmad raided the house situate at Chak No. 13/MR and recovered the implements which are used for the manufacture of illicit liquor and two bottles one of them containing country liquor. The liquor and implements were taken into possession. Ten ounces was separated from the liquor seized and a separate parcel for the chemical analysis was prepared. The recovery memo. prepared in this behalf was got attested by Mr. B. M. John the Lambardar of the Chak No. 13/MR and Bashir Ahmed (P.W.3). It is alleged that the appellants made good their escape and one Mst. Surraya wife of Robin appellant was found in the house. The report was formally recorded by Mehr Ali Shah H.C. (P.W.1) and the sample parcel was taken by Abdul Aziz F.C. (P.W.4) to the Chemical Examiner on 40-10-1986 and after the completion of investigation the appellants and Mst. Surraya were challaned.

3. At the trial the prosecution examined five witnesses. They are P.W.1 (Mehr Ali Shah who testified only that he had formally recorded the F.I.R.) P.W.2 (B.M. John) and P.W.3 (Bashir Ahmad the recovery witnesses did not support the prosecution case and showed their ignorance about the occurrence.) P.W.4 (Abdul Aziz H . C . deposed that a sealed parcel was handed over to him by Muharrir Thana and was taken to the office of the Chemical Examiner) P.W.5 (Tariq Hussain re-affirmed the prosecution case as contained in the report Ex. P . A . and the preparation of the Inventory Ex . P . B . and the site plan Ex.P.C.). The trial Court gave the benefit of doubt to Mst. Surraya and acquitted her but found the appellant guilty under Article 3 of the said order and sentenced the appellants as mentioned above.

4. The learned counsel for the appellants has assailed the order of conviction on various grounds and has taken me to the record. The trial Court has based the conviction on the statement of P.W.5 (Tariq Hussain) but a careful examination of the statement of this witness leads me to the conclusion that it is not safe to base the conviction on that statement. It could not be established beyond doubt that the house wherefrom the alleged implements were recovered in fact belonged to the appellants as the Lambardar of the village (P.W.2 B.M. John) did not support the case. This witness and the other recovery witness P.W.3 Bashir Ahmad disowned the recovery. It is admitted by the Investigating Officer (P.W.5) that during investigation no proof about the ownership of the place was collected and the place wherefrom the implements were recovered was a place without any door. The appellants were not apprehended on the spot. It is interesting that when this witness was being examined in Court, the alleged recovered articles were not shown to him and exhibited. P.W.4 (Abdul Aziz) who stated that he had taken the parcel to the Chemical Examiner and the same was given to him by Muharrir but the Muharrir (P.W.1) did not corroborate him. It is found from the report of the Chemical Examiner Ex.P.D. that the parcel was received from the Superintendent of Police, Multan on 30-10-1986. Where the parcel was kept during this long period from 10-9-1986 is not explained. Even the star witness (P.W.5) does not say that the sample parcel remained with him in tact.

5. For the above reasons, it is not possible to uphold the order of conviction. The appeal is accordingly accepted and conviction and sentences passed against the appellants are set aside and the appellants are exonerated of the charge. They are on bail. Their bail bonds stand discharged.

M.Y.H./380/F.Sh. Appeal allowed.