2020 P Cr. L J 1255
[Balochistan (Sibi Bench)]
Before Abdul Hameed Baloch, J
ALI AHMED---Petitioner
Versus
The STATE--- Respondent
Criminal Revision Petition No. (s) 35 of 2019, decided on 6th November, 2019.
(a) Prohibition (Enforcement of Hadd) Order (4 of 1979) ---
----Arts. 3 & 4 ---Owning or possessing intoxicants ---Appreciation of evidence ---Benefit of
doubt ---Safe custody ---Non-production of sample -bearer ---Contradictory statements of
witnesses---Effect ---Accused was alleged to have been found in possession of twenty liters
of alcohol ---Alcohol was received at the Forensic Laboratory with a delay of seven days and
no explanation was available as to where the contraband was kept and in whose custody---
Statement of the sample -bearer was not recor ded---Complainant had stated that he had
prepared the sample parcels while the recovery witness had stated that investigating officer had prepared the sample parcels ---Revision petition was accepted and the accused was
acquitted of the charge, in circumsta nces.
Razia Sultana v. State 2019 SCMR 1300 and Minhaj Khan v. The State 2019 SCMR
326 rel.
(b) Administration of Justice ---
---Where the law provides for doing a thing in a particular manner it has to be done in that manner, otherwise not done at all.
Ali Hassan Khoso for Petitioner.
Abdul Mateen, Deputy Prosecutor General for the State.
Date of hearing: 25th October, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J .---This criminal revision petition has been directed
against the judgment dated 31st August, 2019 passed by Judicial Magistrate, Usta Muhammad (trial Court), whereby the petitioner was convicted under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (Order 1979) and sentenced to suffer two years rigorous
imprisonment with fine of Rs. 5000/ - and in default thereof to further suffer two months
simple imprisonment and judgment dated 3rd October, 2019 (impugned judgment) passed by
Additional Sessions Judge, Usta Muhammad, (appellate court), whereby the sentence
awarded to the petitioner was reduced to one year and fine to the tune of Rs. 3000/ - and in
default thereof to undergo one month simple imprisonment.
2. Precise facts of the case were that on 1 3th May 2019 FIR No.65 of 2019, was
registered under Articles 3, 4, Prohibition (Enforcement of Hadd) Order, 1979, with Police Station City Usta Muhammad, on the report of Karam Hussain ASI, on the allegation of recovery of twenty liters alcohol from the j erry-cans carried by him on motorcycle.
3. After submission of challan, trial commenced. The trial court framed charge, to which
the petitioner and co -accused denied; whereafter, the prosecution produced three witnesses in
order to substantiate the charge. After close of prosecution evidence the petitioner and co-
accused were examined under section 342, Cr.P.C., wherein they denied the allegation. They neither recorded their statement on oath as mandated by section 340(2), Cr.P.C., nor produced evidence in defence.
4. After conclusion of trial the learned trial court convicted and sentenced the petitioner
in the terms as mentioned in para -1, whereas co -accused Hussain Bakhsh was acquitted of
the charge. Being aggrieved the petitioner filed appeal before Addi tional Sessions Judge,
Usta Muhammad, who was pleased to reduce the sentence as mentioned in para- 1 above vide
impugned judgment, hence this revision petition.
5. Heard the learned counsel for the petitioner and Deputy Prosecutor General and also
perused t he available record. It is the case of the prosecution that during course of routine
checking the police recovered twenty liters alcohol from the possession of the petitioner. The prosecution has examined three witnesses in order to substantiate its case. PW-1 and PW -2
are ocular witnesses, while PW- 3 is Investigating Officer. On registration of FIR the
investigation was entrusted to PW -3, who proceeded to the place of arrest of accused, where
the recovered material and other relevant documents were handed over to him. He recorded
statements of witnesses, dispatched the sample to Forensic Science Laboratory for analysis. The contraband (alcohol) received at FSL on 22nd May, 2019, with the delay of seven days and there was no explanation that where the contraband was kept and in whose custody. It is bounden duty of the prosecution to prove safe custody and transmission of referred material through confidence inspiring evidence. Mere verbal assertion cannot be enough. It is an admitted principle that where the law provides for doing a thing in a particular manner it
should be done on that manner, otherwise not done at all. The prosecution did not record the statement of police official through whom the contraband sample was dispatched to FSL to prove safe transm ission of the contraband from the custody of the Police Station to the
Chemical Analyst, which act on the part of the prosecution creates serious doubts in the whole prosecution's case. For rendering this view, I am fortified from the dictum laid down by the Hon'ble Supreme Court of Pakistan on the case of Razia Sultana v. State 2019 SCMR
1300, wherein it has been held as under:
"2. At the very outset, we have noticed that the sample of the narcotics drugs was dispatched to the Government Analyst for chemi cal examination on 27.2.2006
through one Imtiaz Hussain, an officer of ANF but the said officer was not produced
to prove safe transmission of the drug from the Police to the chemical examiner. The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability
making it unsafe to support conviction."
6. Perusal of record tra nspires that the statements of prosecution witnesses are
contradictory to each other despite the fact that the witnesses alleged that all of them were
present at the spot. PW -1 stated that the place of occurrence was a thoroughfare. The
Investigating Offic er came at the spot at 10:45 a.m. The witness further stated that he
prepared sealed parcels Nos. 1 and 2 of Jeri can. The recovery memo was prepared by him, while PW -2, recovery witness, stated in a manner:
7. The reply of referred to witness in cross -examination belies the statement of
complainant (PW- 1). The Investigating Officer stated that he reached at the spot at 11.30
a.m. It further contradicts the version of PW -1. Such discrepancies and contradictions are
material when the witnesses (PW- 1 and PW -2) proceeded together and remained there till
arrival of the Investigating Officer. Reliance is placed on case law titled Minhaj Khan v. The State 2019 SCMR 326, in which it was held:
".......PW1 stated that the place of occurrence, that is the place where the petitioner
was apprehended and arrested, "was at a distance of about 2/3 kilometers towards west from police post" but PW -2 stated that, "the place of occurrence is at a distance
of 1 kilometer from the police post". The discrepancy in the distance becomes material when both these witnesses were shown to be performing duties in the area. PW-1 and PW -2 stated that in addition to them there was Constable Jehanzeb Khan
and Constable Shoaib Afzal in the said car, but neither remembered who was s itting
in the front seat next to the driving seat whilst remembering other minute details such as noting, that the petitioner was holding the blue shopping bag in his right hand. PW -
1 did not know the owner of the car and PW -2 stated that he, "had the private car
from someone on the basis of curtsy" [sic.] but did not disclose the name of the owner of the vehicle. The petitioner had throughout maintained that he was roped into a false case because he and his wife ran 'Muhammad Ali Public School' and an infl uential of
the area who ran another school, 'Al -Meenar Public School', wanted to have the
petitioner's school closed down as the petitioner and his wife's school competed with them. Both these witnesses professed complete ignorance about the schools, which is
surprising considering they were serving in the area. Another significant contradiction was that whilst PW -1 in his cross -examination stated that upon seeing the policemen
the, "accused had not run. I and Shoaib Constable had over powered the accused".......
In view of above discussion the criminal revision petition filed by the petitioner is
accepted. The impugned judgments dated 31st August, 2019 and 3rd October, 2019 passed
by learned Judicial Magistrate, Usta Muhammad and Additional Sessions Judge, Usta
Muhammad respectively are set aside. Consequently the petitioner Ali Ahmed son of Wali
Dad, is acquitted of the charge under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979, pursuant to FIR No. 65 of 2019, Police Station City Usta Muhammad . He be released
at once if not required in any other case.
SA/158/Bal. Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.