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Criminal Appeal No. 272/1 of 1985, decided on 4th February, 1986

‑‑‑Art. 3‑‑Illicit liquor recovered from possession of accused‑‑No evidence existing to establish that accused persons were selling liquuor‑‑Factum of selling of liquor by accused was mentioned in F.I.R. which was not a substantive evidence‑‑None of witnesses at trial stated that accused had sold liquor to anyone or that they were there for that purpose‑‑Conviction of accused under Art. 3, Order 4 of 1979 set aside as being unwarranted.

‑‑‑Art. 4‑‑Criminal Procedure Code (V of 1898), S. 103‑‑Recovery‑ Excise Inspector receiving information a week earlier that accused were dealing in liquor but in spite of happing prior knowledge two or more respectable inhabitants of locality were not associated for search of house, situated within a densely inhabitated locality‑‑Recovery which was effected in violation of mandatory provisions of S. 103, Cr.P.C. disbelieved.

‑‑‑Art. 4‑‑Recovery‑‑Though thirteen bottles of liquor were recovered from accused but only one bottle was sent to Chemical Examiner for analysis‑‑Prosecution neither alleging that recovered bottles were manufactured by same manufacturing company nor alleging that same had seals‑‑Raiding party, held, was duty bound to obtain sample from each of bottles to prove that these contained liquor.

‑‑‑Art. 4‑‑Criminal Procedure Code (V of 1898), Ss. 103 & 517‑‑Recovery of bottles of liquor disbelieved as mandatory requirements of S. 103, Cr.P.C. were not complied with‑‑Though thirteen bottles of liquor were recovered from accused persons but only one bottle was sent to Chemical Examiner for analysis‑‑Recovered battles never exhibited in Court‑‑Trial Court in violation of provisions of S. 517, Cr.P.C. ordering for destruction of case property before disposal of appeal‑‑Legal as well as factual infirmities rendering case of prosecution doubtful‑‑Accused . acquitted in circumstances.

Malik Rab Nawaz Noon for Appellants.

Khan Mushtaq Ahmad Khan for the State.

Date of hearing: 4th February, 1986.

Muhammad Arshad and Muneer Hussain were proceeded against under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, tried by Magistrate Ist Class, Mandi Bahauddin who at the close of trial by judgment, dated 23‑12‑1985 convicted both under Articles 3 and 4 of the Order ibid and sentenced each under Article 3 to 3 years' R.I., whipping numbering 10 stripes and a fine of Rs.1,000. For an offence under Article 4 each was sentenced to 2 years' R.I. and a fine of Rs.500. In case of non‑payment of fine imposed under both the Articles they were ordered to further undergo three months' R.I. By lodging a joint appeal both the convicts have assailed their convictions and sentences.

2. The case of the prosecution is that on 30‑4‑1982 Malik Muhammad Fazil, Excise Inspector (P.W.3) on a tip from an informer that the accused were selling illicit liquor, raided the house of Muhammad Arshad accused at 10‑15 a.m. where both the accused were found sitting on chairs in the Baithek of the house. Thirteen plastic bottles in a plastic bag containing illicit liquor were lying under the table. One of the bottles .was sent to the Chemical Examiner for analysis whose report Exh. P.E. is to the effect that the bottle contained coloured diluted rectified spirit which could be used as a substitute for liquor. The recovered bottles were at no time exhibited in Court. Bagh Hussain Sub‑Inspector who during the days of occurrence was A.S.I. at Police Station Phalia and Malik Muhammad Fazil. Excise Inspector (P.W.3) furnished direct account of the incident by stating that the intoxicating liquor in thirteen bottles was recovered from the room in which the two accused were sitting.

4. The learned counsel for the appellants vehemently contended that Article 3 was not attracted to the facts of the case. There is not an iota of evidence to indicate that any of the accused was found selling the liquor. This petition was conceded by the learned counsel appearing for the State. There is no evidence worth the name to establish A that the accused were selling the liquor. It is so mentioned in the first information report which is not a substantive evidence. At the trial none of the witnesses stated that the accused had sold liquor to anyone or they were in the Baithek for this purpose. Such being the state of evidence the conviction and sentence of the appellants under Article 31 is totally unwarranted and these are set aside.

5. About the recovery of the intoxicating liquor from the possession of the accused the same is not proved beyond reasonable doubt because the mandatory requirements of section 103, Cr.P.C. ware not complied with. According to Malik Muhammad Fazil, Excise Inspector he received information a week earlier that the accused were dealing in liquor but having prior knowledge two or more respectable inhabitants of the locality were not associated with the search of the house, admittedly situated within a densely inhabited locality. Again it is not the case of the prosecution that the bottles recovered were manufactured by some manufacturing company and had its seals, therefore, it was incumbent upon the raiding officers to obtain the sample from each of the bottles to prove that these contained intoxicating liquor which was not done. The bottles were never exhibited in Court and the trial 'Magistrate in violation of the provisions of section 517, Cr.P.C. ordered the destruction of the case property before the disposal of appeal.

6. The legal as well as factual infirmities observed here before have rendered the case of the prosecution doubtful. Extending its benefit to the appellants we accept the appeal, set aside their convictions and sentences under Article 4 also and acquit them of both the charges. Muhammad Arshad and Muneer Hussain shall be released forthwith if not required in any other case.

H.A.K. Appeal accepted.

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