SHER MUHAMMAD and anothers vs THE STATE
This matter concerns an application for the quashment of criminal proceedings initiated against a couple for alleged offences under the Prohibition (Enforcement of Hadd) Order, 1979. The applicants were arrested following a raid on their residence based on false information regarding illicit sexual activity, which was later disproven as the woman was the applicant's wife. The prosecution subsequently alleged the possession and consumption of liquor. However, medical examinations and chemical analysis reports conclusively established that neither applicant had consumed alcohol, and the substance seized was not Ethyl Alcohol. The core legal question was whether criminal proceedings should continue when the prosecution's evidence is entirely negated by expert reports, rendering the possibility of conviction non-existent. The Court held that in the absence of any incriminating evidence and with the prosecution's case collapsing due to negative chemical and medical reports, the continuation of the trial would be an abuse of the process of law. Consequently, the Court quashed the proceedings, emphasizing that law enforcement must exercise restraint and verify information before infringing upon the liberty and honor of citizens.
- Can criminal proceedings be quashed under Section 249-A of the Code of Criminal Procedure 1898 when the prosecution's evidence is negated by chemical analysis reports?
- Is it an abuse of process to continue a trial where there is no possibility of conviction?
- Does the lack of incriminating evidence, such as negative chemical reports for alcohol, justify the quashment of proceedings under the Prohibition (Enforcement of Hadd) Order 1979?
- Article 4, Prohibition (Enforcement of Hadd) Order, 1979
- Section 249-A, Code of Criminal Procedure 1898
1. ' The facts leading to this order are that on 27-11-2001 Law Enforcing Agency performing at Badin associted one Magistrate with them and called police of Police Station Badin including S.H.O.
2. Muhammad Afzal Bhatti on the basis of an information that one lady was available with Sher Khan in his bungalow for the purpose of Zina. The entire force together with Magistrate entered into the bungalow of Sher Khan Rustamani and took him into custody alongwith his wife Nawabzadi alias Rubi. It was alleged that both of them were drunk and also one bottle containing some quantity of liquor was available in front of them. Arrest and recovery were made under Mashirnama' prepared in presence of Magistrate (Judicial Magistrate, Badin). One pint of alleged liquor was sealed separately in a small bottle and the big bottle was also sealed at the spot. The couple together with the articles was brought at Police Station Badin, where case was registered by S.H.O.
3. Muhammad Afzal Bhatti.
4. ' Couple was referred to Medical Officer, Badin for examination and report not only in respect of taking liquor but also regarding the act of intercourse too. The doctor reported that none of the two persons was found to have taken liquor. The swabs of the couple together with their blood and urine taken by the hospital authorities were sent for chemical examination. Also the sample of liquid alleged to be liquor was dispatched for the chemical examination. After examining all the items/articles chemically the Chemical Examiner sent the result as under:-- ' Human semen is not detected in above cited articles Nos. One, two, three, four six, seven and eleven.
5. ' Ethyl Alcohol is not detected in above cited articles Nos. Five nine, ten, twelve and thirteen respectively.
6. ' Ethyl Alcohol is not detected in above cited article No, fourteen.
7. ' Before arrival of the reports of Chemical Examiner Sher, Khan and Nawabzadi were challaned for offence under Article 4, Prohibition (Enforcement of Hadd) Order, 1979 on 4-12-2001.
8. ' After arrival of the report, an application for acquittal of the accused/applicants under section 249-A, Cr.P.C. Was filed. After its dismissal on 4-4-2002 by the trial Court the present application for quashment of the proceedings has been filed.
9. 'Applicant's learned Advocate argued that in fact the Law Enforcing Agency permitted themselves to be used by some irresponsible and mischievous elements on the basis of misguiding and misleading information. They joined the police and Magistrate with them and trespassed into the house of applicants and arrested them without any justification and then manufactured a false story of liquor etc. For only face saving purpose. Coming on merits the learned Advocate argued that the only charge for sending the couple to the Court for trial is the alleged use and possession of liquor but after the reports of doctor and Chemical Examiner that allegation too falls to the ground and, as such, there is no possibility of conviction of the applicants/accused in this case.
10. ' Mr. Siddiqui, the learned counsel appearing for the State concedes to these arguments.
11. ' It is true that bungalow of Sher Khan the applicant was raided on the basis of an information that one lady was available there for commission of Zina but after raid and investigation it was proved that a lady available with Sher Khan in bungalow was his own wife. Nawabzadi. After that the only allegation, according to prosecution case was that the couple was drunk and also they had 'liquor in their possession. In the 'result Of medical examination none of them was found to have taken the liquor. Also the stuff which the prosecution claimed to be alcohol was found not to be Ethyl Alcohol.
12. Taking of swa bs of the lady who happened to be wife of Sher Khan was absolutely unnecessary as she could never be charged for Zina with her own husband.
13. ' In presence of the two negative reports the possibility of conviction of the couple in present case can safely be excluded. Thus there is no possibility of the conviction of the applicants in the case pending before the learned Judicial Magistrate, Badin. The proceedings challenged through present application are, therefore, liable to be quashed.
14. ' Although his name and designation are not disclosed but I must express deep concern over the performance of an officer of the law enforcing agency having played a leading role in the episode.
15. He arranged the entry in the house without verifying the genuineness of so-called information about presence of one stranger lady with Sher Khan in his bungalow. The matter did not end with the entry into the house but the couple was arrested and taken to police station on a charge of taking and possessing liquor. The events like present one surely damage the image of the Agencies which are expected to conduct themselves decently and with full sense of responsibility.
16. Required restraint is essentially to be taken care of while dealing with the matters relating to the honour and liberty of citizens.
17. ' In consequence of above the proceedings against the applicants pending before the Civil Judge and F.C.M., Badin in the result of case registered as Crime No,193 of 2001 at Police Station Badin are quashed.