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Criminal Appeal No. 119/1 of 1986, decided on 19th June,1986.

‑‑Arts. 3 & 4‑‑Contradiction existing about time consumed in recovery proceedings‑‑ Prosecution witnesses inspiring no confidence and basing conviction on their evidence was unsafe‑‑Conviction and sentence set aside.

Malik Muhammad Rafiq Khan for Appellants.

Muhammad Aslam Uns for the State.

Date of hearing: 12th June, 1986.

.‑‑The two appellants were convicted by Mr. Muhammad Naeem Siddiqui, Magistrate Ist Class, Mandi Bahauddin, under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, vide his order, dated the 20th April, 1985 and sentenced as follows:‑----

Under Article 3. . .Three years' R.I. each with whipping numbering 10 stripes each.

Under Article 4 . ...Two years' R.I. each with a fine of Rs.1,000 each. In default of payment of fine they were to suffer two months' R.I. further.

They have assailed the order of conviction and sentences through the present appeal.

2. The occurrence took place on the 20th of March, 1985 at 1‑00 p.m., at King Road, Mandi Bahauddin, near the Degree College, Mamraz Khan, S.H.O./Inspector, P.W.2, who was patrolling the King Road saw a Car No. RIF 9394 coming from Sohawa‑Sargodha Road. The car signalled to turn to Phalia. However, as soon as car reached the Chowk where the Police Jeep was standing, the driver turned instead towards Mandi Bahauddin and drove fast. Suspecting the situation, the police party chased the car and took over near General Bus Stand Degree College. Sarfraz Ahmad appellant was sitting on the front seat. A gallon‑can of blue colour with liquor was lying between his feet near the seat, which was taken into possession. Another smaller plastic can of white colour with liquor was lying between the driver and the other seat. The police took that also into possession. Samples for chemical analysis were taken from them and sealed. The case was, thereafter registered against the two appellants under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979, on the report of Mamrez Khan. The samples were also sent for chemical analysis and it was found, vide report Exh.P.F. that they contained liquor.

3. The prosecution produced 6 witnesses in support of its case. Sabir Hussain Shah, Moharrir Head Constable, P.W.1 deposed that he received two parcels on the 20th of March, 1985 and sent the same to the Chemical Examiner, on the 10th of March, 1985, through Muhammad Aslam, Foot Constable No. 639, Muhammad Aslam appeared as P.W.3 to support P.W.1 and stated that he took the parcels on the 30th of March, 1985 from P.W.1 and delivered them to the Chemical Examiner. Muhammad Nawaz, A.S.I. P.W.4 had only recorded the formal F.I.R. Exh.P.D.l1 on the complaint of Mamrez Khan, P.W.2.

4. Mamrez Khan, P.W.2 deposed that he was present at King Road at about 1‑00 p.m. on the eventful night when he saw Car No. RIF 9394 coming from Sohawa‑Sargodha Road. The car signalled for turning to Phalia. However, on seeing the police car it turned instead towards Mandi Bahauddin. Suspecting, the police party followed and stopped the car near the General Bus Stand Degree College. They found Asmatullah and Sarfraz appellants sitting therein. A gallon‑can of liquor was lying within the feet of Sarfraz while a white colour can was lying near the seat of Asmatullah appellant. The police took both the cans into possession and took samples for the purpose of chemical analysis. They also recovered the two cans and prepared the relevant documents before the registration of the case. The P.W.2 also produced the report Exh.P.F. of the Chemical Examiner. He was supported by Muhammad Aslam Foot Constable No. 357, P.W.5 and Mushtaq Ahmad, Foot Constable 393 as P.W.6.

5. The appellants in their statements under section 342, Cr.P.C. denied the prosecution version. Sarfraz appellant stated that as their car collided with the police car the police involved them in the false case. Asmatullah on the other hand, stated that he was driving the car and as passed near the car of the police, the police involved them in the false case of possession of liquor. The two appellants produced two witnesses in defence. Muhammad Khan D.W.1, stated that he as well as Saadat Ahmad, D.W.2 were going in the car alongwith the appellants and that as the appellants did not stop on being asked by the police. The police party chased and stopped them, took them to the police station and involved them in the case though liquor was neither present in the car nor was it in their possession. Saadat Ahmad, D.W. 2 stated that he had come to Mandi Bahauddin with Ch. Muhammad Khan. On the return journey, he took lift in the car with Asmatullah and came to the King Road. There they met the police who asked them to stop but they did not obey their order. They followed them and stopped them, on which some altercation took place. The two appellants were then involved in the false case.

6. It is contended by the learned counsel that the prosecution evidence contains such glaring and material contradictions that the same cannot be relied upon to justify the conviction. He has referred to the statement of Mamrez Khan, P.W.2, who stated that he alone had come out of the jeep and while standing along the jeep completed all the formalities under the street light of a lamp‑post. According to him no shop or hotel was open. Muhammad Aslam, P.W.5, on the other hand, stated that all of them except the driver came out of the jeep They then got chairs from the hotel and completed all the formalities opposite the College gate under the torch light. Mushtaq Ahmad, Constable, P.W.6 on the other hand stated that the recovery proceedings were completed while sitting at the spot in the light of the lamp‑post.

7. The learned counsel also referred to the statement of Mamrez Khan, who stated that the patrol was started at 11‑00 p.m. Muhammad Aslam Constable, P.W.5, however, said that they came at patrolling at 9‑00 p.m. According to Mushtaq Ahmad, P.W.6, it was 10‑00 o'clock when they sat in the jeep for the purpose of patrolling. Mamrez Khan deposed that the recovery proceedings took hour while Mushtaq Ahmad stated that it consumed two hours. Undoubtedly, the above-given contradictions are quite conspicuous and material. The witnesses if they really had seen the occurrence would not have differed on the source of light on the place of recording the proceedings. The prosecution evidence thus does not inspire confidence and it is not safe to maintain conviction on that basis. We, therefore, allow this appeal, set aside the conviction and sentences and acquit the appellants of the charges against them. They are on bail, hence their bail bonds shall be discharged.

H.A.K. /294/F Appeal allowed.

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