GORNO alias GOVERNOR Versus State
MUHAMMAD SALEEM JESSAR, J .---By this single judgment I propose to dispose of above-said two Cr. Revision Applications as both have arisen out of same common judgments passed by the trial Court and the Appellate Court and common question of law as well facts is involved.
2. Through these Criminal Revision Applications appellants have assailed judgment dated 12.01.2013 handed down by learned Civil Judge/Judicial Magistrate, Sanghar in Cr. Case No.39 of 2012 (Re-State v. Pirbhu Mal and others) being outcome of Crime No.312/2010 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 of P.S. Sanghar, whereby appellants have been convicted for offence punishable under Article 3, Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to undergo imprisonment for two years as Ta'zir and to pay fine of Rs.15,000/- (Rupees Fifteen thousand only) each and in default to suffer S.I. for three months more. However, the accused was extended benefit of section 382-B, Cr.P.C. By the same judgment trial Court acquitted accused Pirbhu Mal son of Kenya Lal and Jago alias Jagdesh son of Ranomal by giving them benefit of doubt. Appellants have also challenged the judgment dated 30.7.2013 handed down by Appellate Court/2nd Additional Sessions Judge, Sanghar in Cr. Appeal No.03 of 2013 whereby he dismissed the appeal and maintained aforesaid judgment of conviction passed by the trial Court.
3. Concisely, the facts of prosecution case are that complainant ASI Manzoor Ahmed Bhatti of I.T. Police Station, Sanghar, lodged FIR on 04.12.2010, alleging therein that on the said date he was posted as ASI at Police Station Sanghar, where he received a spy information through telephone that two persons are coming carrying prepared wine in a "Coure-Car" from Shahdadpur to Sanghar. After getting such spy information he along with HC 662 Ghulam Mustafa, Constable-348 Kashif Ghaffar and Constable-2125 Abdul Ghafoor, left police station vide roznamcha entry No.8 dated 04-12-2010 at 1430 hours in Government vehicle No. SP5854, which was driven by Constable Khalid Hussain, At about 1510 hours when they reached at Shahdadpur-Sanghar, Road near Grid-Station, they saw a "Coure" car bearing Registration No.AGP 084, white coloured, coming infront of them from Shahdadpur side. They got stopped the same on a side of road. They saw that two persons were sitting in the said car on front seats, while on rear seats cartons of wine were available. Thereafter, police got alighted both the persons and enquired from them about their names, parentages, documents of the Car and regarding wine. Out of them, one person disclosed his name as Ramesh Kumar son of Lachmandas, by caste Lohano, resident of Shahdadpur. On his personal search one U-Phone Card was recovered and other person, who was driving the car, disclosed his name as Governor son of Khamo, resident of Station Road Shahdadpur and on his personal search one Nokia Cell Phone of China was recovered. On back side of the seats 16 cartons of wine were found, out of which eight cartons were containing 192 pints, three cartons of Dry-Gin, five cartons were containing eight "Q.D.L" Company 72 pints and "Four aces" wine 120 pints. On further inquiry, accused disclosed that they have got the same from one Pirbho Mal Hindu, resident of Shahdadpur and would deliver the same to Jagdesh alias Jagoo Lohano resident of Sanghar, for selling purpose. The driver of the car further disclosed that he did not possess documents of the car. Afterwards, complainant got one-by-one pint out of Q.D.L, Dry-Gin and Four aces sealed separately for chemical analysis, while another wine was separately sealed and thereafter due to non-availability of public mashir such mashirnama of arrest and recovery was prepared in presence of HC Ghulam Mustafa and Constable Kashif Ghaffar. Thereafter, the arrested accused and recovered property were brought to the police station, where complainant got registered FIR on the same date at 1630 hours. After usual investigation, challan was submitted before the Court of learned Civil Judge and Judicial Magistrate. Sanghar and subsequently record and proceedings of the case were sent to the trial Court by way of transfer on the orders of Honourable Sessions Judge, Sanghar, for disposal in accordance with law.
4. On 04-2-2011 a formal charge was framed against the accused vide Ex:2 to which they have pleaded not guilty and claimed trial vide their Pleas Ex:2-A to Ex:2-D respectively.
5. In order to prove its case, prosecution examined as many as five witnesses. P.W No.1 ASI Manzoor Ahmed was examined at Ex:3, who produced FIR as Exh:3-A, memo of arrest and recovery as Ex:3-B, departure entry No.8 as Ex:3-C. P.W.2 PC Abdul Ghafoor was examined at Ex:4, while P.W.3 S.I.P. Muhammad Ramzan Rajar at Ex:5, who produced chemical report as Ex:5-A and police letter as Ex:5-B. P.W. 4 ASI Pir Bux Mashoori, Duty Officer, was examined whereas P.W. 5 HC: Ghulam Mustafa Rajput was examined at Ex:13. Thereafter, learned P.I. appearing for the State closed prosecution side vide his Statement Ex:14.
6. After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused/appellants, as stated above. Against the said judgment the appellants filed Cr. Appeal No. 03/2013 before the Court of Session, latter it was assigned to IInd Additional Sessions Judge, Sanghar. After hearing to the parties, learned Appellate Court has dismissed their appeal and has maintained the judgment of trial Court, which are being impugned before this Court. Hence, instant criminal revision applications have been preferred by the convicted accused.
7. I have heard learned counsel for the parties and perused the material available on the record.
8. The appellants submitted that they have been falsely involved in the present case. They contended that a joint charge was framed by trial Court against them as well as acquitted accused Pirbhumal and Jagdesh alias Jago on 04.02.2011; however, the trial Court while disbelieving the evidence against co-accused Pirbhumal and Jagdesh has acquitted them, whereas on the basis of same set of evidence they have been convicted. According to them, this is against the rule of consistency. They further submitted that there are contradictions in the evidence of prosecution witnesses which create doubts in the prosecution case. According to them, there is unexplained delay in sending the sample of alleged contraband wine to the chemical examiner. They further contended that there is also violation of section 103, Cr.P.C. as no private witness of the locality has been associated to act as mashir of alleged arrest and recovery. They further argued that only one bottle was taken from QDL, dry Gin and Four-Aces for chemical analysis and the same from each bottle was not taken, which puts several dents in the prosecution case. They further contended that neither any customer was witnessed to have purchased the wine, nor any fake custody was sent to purchase the wine and even nor anything was recovered which could suggest that they were intending to prepare the wine. They further contended that impugned judgment(s) passed by Courts below suffer from misreading and non-reading of evidence and that there are illegalities and material irregularities in the impugned judgments. The appellants lastly prayed for allowing instant criminal revision applications, setting aside the impugned judgments and prayed for their acquittal.
9. Conversely, learned A.P.G. appearing for the State opposed the grant of revision applications. According to her, prosecution has succeeded in proving its case against the accused beyond shadow of reasonable doubt as such the accused have rightly been convicted by the trial Court. She further submitted that the evidence of police officials is also as good as the evidence of any other independent witness and their evidence cannot be discarded merely for the reason that they are police officials. According to her, minor contradictions in the evidence of prosecution witnesses are ignorable and the same cannot be made basis for acquittal of the accused. She prayed for dismissal of revision applications and upholding the impugned judgments.
10. It seems that the provisions of section 103, Cr.P.C. have not been complied with by the complainant, inasmuch as he did not associate any private person of the locality to act as mashir of arrest and recovery although private persons were available at or at least near the spot. The complainant in his cross-examination admitted:
"It is correct that so many shops hotels are situated at traffic chok and the road leading towards Shahdadpur and public remain on the road round the clock. We had not asked any person from public to act as witness to the proceedings after leaving police station. It is correct that village Shaheen Abad is situated at Grid Stations. Vol: states is situated at about two acres distance...... It is correct that petrol pump and CNG stations are situated there at Gird Station..... It is correct that Shahdadpur Sanghar is busy road. So many vehicles passed from the place of recovery when we were busy in completing the formalities .....:
11. From above admissions, it is crystal clear that although the police could have easily procured private persons for associating them as mashir of arrest and recovery but admittedly they did not make efforts and even they did not asked any private person to act as mashir. This is clear violation of section 103, Cr.P.C. and thus the recovery itself becomes doubtful. Needless to emphasize that in view of provisions of section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. In the case reported as State v. Bashir and others (supra) honourable Supreme Court held as under:
"As regards above second submission of Mr. M. M. Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."
12. Yet in another case reported as Yameen Kumhar v. The State (PLD 1990 Karachi 275) this Court after discussing various case-laws on this point held as under:
"A perusal of the afore-stated authorities and a catena of judgments of various High Courts which we have not quoted here clearly lay down that section 103, Cr.P.C. is to be applied to recovery, search and arrest made during investigation of a crime. It has been termed as mandatory but not absolute and its non-compliance in certain circumstances will not render search and recovery illegal. However, where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 must be made. It cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well-founded grounds and in exceptional cases. If recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid and reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses. Such witnesses should be of the locality if the circumstances of the case permit. Section 103 embodies rule of prudence and justice. It is intended to eliminate and guard against 'chicanery' and 'concoction', to minimize manipulation and false implication. It is for these reasons that there is a consensus in the Superior Courts that compliance with section 103 should not be bypassed nor that its applicability be restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practiced during investigation in crimes for so long and with such regularity and force that any attempt to restrict it to proceedings under Chapter VII only will unsettle the settled law.
The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a. playground, field or garden from where recovery can be made for which search is conducted. Although in strict sense the provisions of section 103 are restricted to searches under Chapter VII of Cr.P.C. it has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in our criminal jurisprudence and so universally accepted that in all criminal cases two mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability."
13. In view of aforesaid factual and legal position, alleged arrest of the accused and recovery of contraband wine etc. from them becomes doubtful.
14. Another worth-importance point in this case is that trial court while disbelieving the evidence of the prosecution witnesses against co-accused Pirbhumal and Jagdesh has acquitted them, whereas on the basis of same set of evidence present appellants have been convicted. This is violative of 'rule of consistency' and such practice/conduct of the trial courts has not been appreciated by the Superior Courts. In this connection it would be advantageous to refer to a judgment of honourable Supreme Court passed in the case of Mohammad Asif v. The State reported in 2017 SCMR 486 wherein it was held as under:
"It is a trite rule of law and justice that once prosecution evidence is disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case."
15. In another case reported as Umar Farooque v. State (2006 SCMR 1605) Honourable Supreme Court held as under:
"On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted."
16. Yet in another case reported as Mohammad Akram v. The State (2012 SCMR 440) the apex Court acquitted the accused in the said case, holding that same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge.
17. It is also significant to point out that there is delay of about six days in sending the allegedly recovered wine to the Chemical Examiner. In fact, the alleged wine was recovered on 4.12.2010 from the accused, whereas it was sent to Chemical Examiner on 10.12.2010 whereas report was sent by Chemical Examiner on 21.12.2010. This is also fatal to the prosecution case and creates doubts in the recovery itself and the Superior Courts have condemned such attitude on the part of investigating agency.
18. In the recent case of Abid Hussain alias Javed v. Thawar Khan, S.I. Police Station City Normal and another reported in 2019 PCr.LJ Note 52, Honourable Federal Shariat Court, while deciding the said case which related to an offence under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, held the delay of ten days in sending the liquor to the Chemical Examiner / Forensic Science Agency as fatal to prosecution case as it created doubt as to where the samples were lying for ten days and were sent for chemical analyses after such delay.
19. In another case reported as Imtiaz Ali v. The State (2018 YLR 1067 Peshawar) accused was acquitted of the charge, while holding that delay of five days in sending the sample for examination to chemical examiner would cast serious doubt about the prosecution case benefit of which would resolve in favour of accused.
20. It is also note-worthy that complainant in his cross-examination admitted as under:
"It is correct that I had not taken sample from each cartoon and each bottle lying in the carton. Vol: states that I only separate three pints of wine company wise...... It is correct that each bottle of wine is not sealed. Vol: states that each carton is sealed..... It is correct that each bottle/pint is not sealed. It is correct that no separate seal was affixed on the carton themselves. Vol: states that each carton was separately wrapped in cloth and the said cloth was sewed there and sealed on the spot with seals of the police station."
21. It may be observed that such practice on the part of the investigating agency has not been appreciated by the Superior Courts. In this connection reference may be made to the case of Ameer Zeb v. State reported in PLD 2012 SC 380, wherein Honourable Supreme Court held that sample taken of a recovered substance must be a representative sample of the entire substance recovered. If no sample is taken from any particular packet/cake/slab or if different samples taken from different packet/cake/slab are not kept separately for their separate analysis by chemical examiner, then the same would not be a representative sample and it would be unsafe to rely on mere word of mouth of prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance. In view of this legal position, it would not be safe to rely upon the report of chemical examiner in the instant case too.
22. It is also now well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by honourable Supreme Court as under:-
"In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
23. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under:
"The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defenc. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case....Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."
24. The accumulative effect of the above-said infirmities and legal flaws in the prosecution case is that the prosecution has not succeeded in discharging its obligation to prove the case beyond shadow of reasonable doubt. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:-
"The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
25. As far as contention of learned A.P.G that police personnel are good witnesses as good witnesses from the public; however, when a person(s) is/are going to be charged for an offence, which involves with punishment of sentence, then it was incumbent upon the police officer to associate an independent person from locality to witness the recovery proceedings. The liberty of a person/citizen is most serious option and one cannot be put behind the bars unless unimpeachable-cum-concrete material is collected, that too, be free from all doubts. Mere recovery of certain quantity of contraband without sound and safe evidence is not sufficient to award conviction against the appellants. The complainant of this case was police officer and PWs are subordinate to him; therefore, they being interested witnesses, their evidence was not free from biasness. Hence, upon the basis of such interested evidence, conviction could not be maintained. Moreover, the police officer has made contradictory statements with regard to shifting of accused and contraband from the place of recovery to police station. In my humble view, the Courts below have committed error while awarding sentences and maintaining the conviction of the appellants.
26. For the foregoing reasons by a short order passed on 29.10.2019, both Criminal Revision Applications were allowed. Consequently, impugned judgment dated 12.01.2013 handed down by learned Civil Judge/Judicial Magistrate, Sanghar in Cr. Case No.39 of 2012 (Re-State v. Pirbhu Mal and others) being outcome of Crime No.312/2010 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order of P.S. Sanghar, so also the judgment dated 30.7.2013 handed down by Appellate Court/2nd Additional Sessions Judge, Sanghar in Criminal Appeal No.03 of 2013, were set aside and both appellants were acquitted of the charges. The accused / appellants were present on bail, therefore, their bail bonds were cancelled and sureties furnished by them were also discharged.
Above are the reasons for the said short order.
JK/G-7/Sindh Revision allowed.