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Criminal Revision No. 145/BWP of 1984, decided on 17th November, 1984.

Prohibition (Enforcement of Hadd) Order (4 of 1979)--

---Art. 3--Legality of conviction--No charge of import/export/transport/ manufacture process of intoxicant bottles sale etc.--Case property not produced in Court or shown to witnesses--Held, it could not be said that allegedly recovered bottles contained contraband items--Prosecution failed to prove its case beyond reasonable doubt, accused was therefore, acquitted by giving benefit of doubt.--[Recovery].

Haji Riaz-ud-Din Ahmad for Petitioner.

Rana Pervaiz Ahmad for the State.

Date of hearing: 17th November, 1984.

The facts giving rise to this revision are that Abdul Rehman alias Abbi petitioner was. tried by Magistrate Section 30, Bahawalnagar who vide his order, dated 5-7-1982 convicted him under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to 2 years' R.I. and a fine of Rs.50 and 5 stripes, in default of payment of fine to undergo R.I. for one month. His appeal failed on 21-10-1984, hence this revision.

2. The charge against the petitioner was that when on the night between 12/13-7-1980, he was arrested by desert border rangers near border of Pakistan and India, he was found in possession of 8 bottles of Indian whisky. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined 5 witnesses. Sabir Hussair: P.W.1, Wazir Ali P.W.2, Akbar Ali P.W.4 and Aman Ullah Inspector P.W.5 stated that when the petitioner was apprehended near the border, he was carrying 8 bottles of Indian whisky, Dilshad Ali S.I. investigated the case.

4. When examined under section 342, Cr. P. C., the petitioner denied the incriminating circumstances. In defence he produced 2 witnesses.

5. Learned counsel for the petitioner contends that the petitioner has been convicted without legal justification and that the judgments of the learned Courts below are illegal and perverse. Conversely, the learned counsel for the State supported the judgment of the trial Court.

6. I have considered the arguments addressed by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that although there was no charge of import/export/transport/manufactures or process of intoxicant, bottles of intoxicant, sale, etc. yet the trial Court has convicted petitioner under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979. Further, the case property i.e. 8 bottles of Indian whisky were not A produced in the Court at the time of examination of the witnesses and were not shown to them and as such, it cannot be said that the bottles allegedly recovered from the petitioner were in Indian whisky. For all these reasons I am of the view that the prosecution has failed to prove its case beyond reasonable doubts.

7. For what has been stated above giving him the benefit of doubt, the petitioner is acquitted of the charge.

S. A. Revision accepted.

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