2022 Y L R 162
[Federal Shariat Court]
GHULAM QADIR
Versus
The STATE
(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 3---Criminal Procedure Code (V of 1898), Ss. 221 & 225---Recovery of liquor---Appreciation of evidence---Defective charge---Effect---Prosecution case was that four litres desi wine was recovered from the possession of accused---Legislature had provided an elaborate procedure for framing the charge under S.221, Cr.P.C.---Charge should contain all material particulars as to the time, place and specific kind of the alleged offence, the manner in which offence was committed and particulars of the accused to afford him an opportunity to explain the matter with which he was charged---Framing of charge was not a routine matter or formality---Charge framed by the Trial Court, in the case, did not reflect the place of recovery of the contraband intoxicant from the possession of accused---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.
(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 3---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Prosecution case was that four litres desi wine was recovered from the possession of accused---Perusal of prosecution evidence transpired that complainant in his examination-in-chief stated about recovery of a plastic jerrycan containing desi wine from the petitioner, without disclosing the quantity of contraband liquor---Complainant had further stated that one Pawa in glass bottle from jerrycan was separated as sample for Chemical Examiner but again he did not mention the quantity separated from total recovered intoxicant---Report of Chemical Examiner reflected that the sample of recovered narcotic was received by the Office of Chemical Examiner by hand of Police Constable---Said Police Constable had not been examined by the prosecution---Nothing was available on record to show that where the contraband intoxicant was lying for 23 days, which was in clear violation of R.6 of Sindh Prohibition Rules, 1979---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.
(c) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 3---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Effect---Prosecution case was that four litres desi wine was recovered from the possession of accused---Cumulative assessment of prosecution evidence transpired that Police Constable/witness stated that five litres wine in jerrycan was recovered from the accused, however, ASI/witness stated in examination-in-chief that the jerrycan was containing one litre of desi wine and one sealed quarter of wine---In reply to cross question he had stated that SHO informed him the colour of jerrycan---Said witness further stated that he handed over all case property to the SHO of concerned police station---Complainant/SHO of police station being star witness of the prosecution without disclosing quantity of recovered contraband intoxicant admitted in cross-examination that he did not remember that in the mashirnama the jerrycan was of green colour---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.
(d) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 3---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Report of Chemical Examiner---Scope---Prosecution case was that four litres desi wine was recovered from the possession of accused--- Chemical Examiner's Report reflected that the parcel contained one white nip glass bottle covered with black tin lid, labelled as "superior whisky", fully filled with colour fluid with smell of alcohol---One hundred ml fluid from the said bottle was consumed in analysis---Chemical Examiner had also not mentioned the quantity containing in the sample of contraband intoxicant received by him---Chemical Examiner had also not mentioned about return of remaining case property to the Investigating Agency---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.
(e) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 3---Criminal Procedure Code (V of 1898), S.342---Recovery of liquor---Appreciation of evidence---Benefit of doubt--- Examination of accused---Scope---Prosecution case was that four litres desi wine was recovered from the possession of accused---Record showed that in his statement recorded under S.342, Cr.P.C., by pleading his innocence, the accused stated that complainant SHO was inimical to his relative ASI and foisted Desi Sharab upon him---Accused had not been confronted to the Chemical Examiner's Report, therefore, the chemical report was out of consideration---Appeal against conviction was allowed, in circumstances.
(f) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 3---Criminal Procedure Code (V of 1898), S.103---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Non-association of private witness---Effect---Prosecution case was that four litres desi wine was recovered from the possession of accused---Accused was arrested from a thickly populated area and it was a case of prior information but police did not associate any independent witness of the locality to witness recovery proceeding---Both the marginal witnesses of memo of recovery and arrest were Police Officials and sub-ordinate of the complainant---Prosecution witnesses had contradicted each other on material points but the same were not considered by the Trial Court---Conviction and sentence recorded by the Trial Court, confirmed by the Appellate Court was unjust, improper and result of mis-reading/non-reading of evidence---Appeal against conviction was allowed, in circumstances.
(g) Criminal trial---
----Benefit of doubt---Principle---If any single or slightest doubt is created, benefit of the same would go to the accused not as a concession but as a matter of right and it would be sufficient to disbelieve the prosecution story, regardless of the fact whether the accused has taken any defence plea or not.
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