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Criminal Appeal No.165‑I of 1983, decided on 26th September, 1984.

‑‑‑Ss.101, 102 & 103‑‑Burden of proof‑‑Initial onus is on prosecution to prove its case against accused beyond any reasonable doubt‑‑Accused, held, entitled to get benefit in case prosecution failed to discharge that onus although his defence plea not plausible.‑‑[Burden of proof].

‑‑‑S.103‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3‑ Search and seizure‑‑Benefit of, doubt‑‑No witness from locality of raid included in raiding party nor made a witness to attest recovery memo. of incriminating articles allegedly recovered from house of accused‑ Mandatory provisions of S.103, Cr.P.C., held, not complied with‑ Conviction and sentence set aside, in circumstances.‑‑[Recovery].

1983 S C M R 1; P L D 1957 S C (Ind.) 30; P L D 1980 Pesh. 119; P L D 1981 Kar. 601; 1983 P Cr. L J 1628; 1981 P Cr. L J 474 and Cri. A. No.68/1 of 1983 ref.

Malik Rab Nawaz Noon for Appellant.

Muhammad Aslam Una for the State.

Date of hearing: let February, 1984.

This is an appeal under Article 27 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) against the impugned judgment of the Magistrate let Class, Mandi Bahauddin, dated 31‑10‑1983, whereby Muhammad Boota appellant has been convicted and sentenced under Article 3 of the Order to undergo R.I. for three years, and whipping numbering 20 stripes.

2. In support of its case the prosecution has produced four witnesses. Raja Muhammad Nazir (P.W.1) was at the relevant time posted at Police Station Mandi Bahauddin. He alongwith Excise Inspector Muhammad Fazil, S.I. Muhammad Suleman and other constables were present near Nagina Cinema. Excise Inspector Muhammad Fazil received secret information that Muhammad Boota accused in his house situated iii viallge Moung was illegally manufacturing liquor and if his house was raided immediately, he could be caught red‑handed. Accordingly a raiding party was arranged which went to the house of accused in the said village and found the accused manufacturing liquor in one corner of the Kotha of his cattle. The Excise Inspector vide memo. Exh. P.A. took into possession the utensils, implements etc. which were being used for manufacturing liquor. This memo. was attested by this police officer also. In cross‑examination the witness has admitted that no civilian was included in the raiding party. It is further admitted by him that at the time of raid, many persons from the village had gathered at the spot. He denied the defence suggestion that at the instance of the Excise Inspector, a false case was concocted against the accused.

3. Malik Muhammad Fazil, Excise Inspector (P.W.2) is the main witness of the prosecution. Accordingly to him on 29‑1‑1982, at about 7‑00 p.m. he alongwith his own staff and that of the police officials, was present near Nagina Cinema when he received secret information that Boota accused in his house situated in village Moung was manufacturing liquor illegally. The informant further told this witness that if the house of the accused was raided at once he could be caught red‑handed. Accordingly this officer organized the raiding party consisting of his own excise staff and of the police officials and reached the house of the accused at about 8‑00 p.m. The raiding party found the accused actually manufacturing liquor in Kotha of his cattle. The raiding party took into possession one tin (P.1) containing 8 Seers of Lahan, one bottle (P.2) containing about 20 oz. of liquor, one Matka (P.3). These articles were taken into possession vide recovery memo. Exh. P.A. attested by him. This officer prepared the complaint Exh. P.B and handed over the same to S.I. Muhammad Suleman for necessary registration and investigation of the case. He arrested the accused and handed him over to the police officer. In cross‑examination he has admitted that the village Moung is a big village but no one from the village was included in the raiding party although several persons had collected at the soot, at the time of raid. He denied the defence suggestion that the secret information was given to him by one Ghulam Rasool at whose instance he challaned the accused and all the utensils and implements etc. were supplied by the said Ghulam Rasool. Constable Aslam P.W.3 was also a member of the raiding party and he has supported the prosecution version and attested the recovery memo. Exh. P.A. In cross‑examination he denied the defence suggestion that a false case was registered against the accused and in fact no utensils, implements etc. were recovered from him.

4. S.I. Muhammad Suleman P.W.4 is the Investigating Officer in this case. At the relevant time, he was present near Nagina Cinema alongwith the Excise Inspector and other Police Officials. Excise Inspector Muhammad Fazil received secret information that boots accused was illegally manufacturing liquor in his house situated in village Moung. Accordingly, a raiding party was organized which reached the place of occurrence at about 8‑00 p.m. and found the accused actually manufacturing liquor illegally. The said articles were taken into possession vide memo. Exh. P.A. The Excise Inspector out of the recovered liquor separately sealed 6oz. for samples. The Excise Inspector gave the written complaint on which the case was registered against the accused. He prepared the site plan Exh. P. D. The accused was arrested at the spot. On the completion of the investigation this police officer, challaned the accused. In cross‑examination this police officer has admitted that he did not include any civilian from Nagina Cinema or the place falling on the way or from village Moung. He denied the defence suggestion that one Ghulam Rasool son of Muhammad Khan had a dispute with the accused and the said Ghulam Rasool with the connivance of the police got the accused involved in this case.

5. Boota accused in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations and stated that he was involved in this case due to enmity. He produced two witnesses in his defence. Ghulam Rasool D.W.1 has stated that he is the Lambardar of village Moung. He claims to have seen the house of the accused. He has given the description, location and number of the rooms of the house of the accused. According to this witness the police never raided the house of accused nor recovered any illegal liquor from him. He has further stated that Ghulam Rasool son of Mahand had a dispute with the accused and the house of the said Ghulam Rasool was raided by the police and liquor was recovered from him but he bribed the police and got Boota accused falsely involved in this case, In cross‑examination the witness has admitted that Boota accused owned 25 bighas of land and during the investigation, he had appeared befors the Investigating Officer and stated that the accused was falsely involved in the case, but he did not appear before any higher officer nor he submitted any application in this behalf. Ali Ahmad D.W.2 is the Councilor of the area. He has stated that he has seen the house of Boots accused and gave its location and of the houses situated around it. According to this witness Boota accused did not manufacture any liquor He had given his land on lease to one Ghulam Rasool who had a dispute with the accused in this behalf. The police had raided the house of said Ghulam Rasool but the said Ghulam Rasoot got Boota accused involved in this case falsely. In cross‑examination this witness has admitted that the said Ghulam Rasool is richer than the accused and had lived abroad. The witness did not know whether any relative of said Ghulam Rasool was employed in the Excise or Police Department.

6. The trial Court convicted and sentenced the accused as mentioned above.

7. I have heard the counsel for the parties and have also perused the entire material available on the record.

8. The fate of this case mainly depends upon believing or disbelieving the recovery of illicit liquor and the utensils etc. from the spot. The main contention raised by the learned defence counsel in this behalf is that the mandatory provisions of section 103, Cr.P.C. have not been complied with as no witness from the locality was either included in the raiding party or was made a witness to attest the recovery memo. It is further pointed out by the defence counsel that from near Nagina Cinema and the other localities through which the raiding party passed, many persons were available but none was associated with this case. It is further pointed out that Moung is a big village and admittedly many persons had gathered at the spot at" the time of raid but none of such persons from that village or locality was a witness to attest the recovery memo. Excise Inspector Muhammad Fazil P.W. has admitted in his statement that the village Moung is a big village and several persons has collected on the spot but none was included in the raiding party. Similarly, Raja Muhammad Nazir P.W.1 has admitted that at the time of raid many persons from the village had gathered at the spot. It is in this factual background that it is argued by the defence that the prosecution should have complied with the provisions of the section 103, Cr.P.C. and its non‑compliance has created serious element of doubts about the genuineness o: the recovery memo. Exh. P.A. The learned defence counsel has cited the following authorities in support of his contention:‑

1983 S C M R 1; P I. D 1957 S C (Ind.) 30; P L D 1980 Pesh. 113; P L D 1981 Kar. 601; 1983 P Cr. L J 1628; 1981 P Cr. L J 47: and Cr. A. No.68/l of 1983, decided by Mr. Justice B.G.N. Kazi.

It is further argued that if recovery of alleged illicit liquor Exh. P.A. becomes doubtful as indicated above, the report of Ch9mical Examiner Exh. P.E. would automatically lose its significance and cannot be made the basis of conviction of the accused.

9. In reply the arguments of the learned State Counsel is Uat the defence has not been able to point out any enmity or motive on the part of the Excise Inspector or Investigating Officer to falsely implicate the accused in this case. According to him the defence is relying upon technical pleas which should be ignored. I am not inclined to agree with him. The defence counsel has cited several authorities referred to above including the Supreme Court decision which is constitutionally binding upon this Court. The learned State Counsel has not been able to rebut this contention of the defence or to cite any authority to the contrary.

10. It is not disputed that initially onus is on the prosecution to prove its case against the accused beyond any reasonable doubt. If the prosecution fails to discharge that onus, the accused is entitled to get benefit of the same, although, his defence plea may not be plausible.

11. After hearing the counsel for the parties I am of the view that the prosecution has not been able to establish the guilt of the accused beyond reasonable doubt. The element of doubt exists in the prosecution case. It is well‑settled principle of the Islamic Jurisprudence that the benefit of doubt must be given to the accused. Accordingly, while giving benefit of doubt to the accused, I accept this appeal, set aside the conviction and sentences of Boota appellant and acquit him of the charge. He is already on bail and his bail bond shall stand discharged.

S.G.D Appeal accepted

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