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Exhibit
No.08
IN THE COURT OF IST CIVIL JUDGE & JM, TANDO
ALLAHYAR
(Before: Miss. KOSAR GABOL) Judge,
Criminal Case No. 180 of 2023

THE STATE

VERSUS
AAKASH S/O NARAIN B/C KACHI KOLHI,
R/O Rindabad colony Tando Allahyar--------------(Accused is present in
court on bail)

F.I.R No.333/2023.
U/A. 3 / 4 PEHO.
P.S: A-Section Tando Allahyar.

Learned ADPP for the State :

Mr. IMTIAZ ALI MAHAR
Learned Counsel for the accused : Mr. NIHAL KHAN
LASHARI

J U D G M E N T
(09-01-2024)

The above-named accused person was sent to face the trial of

Crime No.333/2023, U/A: 3/4 of PEHO of Police Station A-Section Tando Allahyar.
2. Nut shell facts giving rise to the case of prosecution are that on
25.09.2023 ASI Rehmatullah Pirzado was posted as ASI at CIA centre Tando
Allahyar and performing duties as duty officer, on same day complainant along
with his staff each namely PC Naveed Raza, PC Rehan-ud-Din, PC Daniyal and
DPC Sikandar Ali in the government vehicle No.SPD-857 carrying investigation
kit departed from CIA Center Tando Allahyar vide Roznamcha entry No.13 at
about 1800 hours for patrolling in the jurisdiction in order to curb the drug
dealers. During the patrolling complainant party visited different areas and when
they reached near to Fiza marriage hall situated at Hyderabad road they got spy
information via telephone call that one person namely Aakash is preparing and
selling desi wine beside his house situated at Rindabad colony near grid station
Tando Allahyar. Then complainant party proceeded towards pointed place and
reached there where they saw one person was available and he was preparing
desi liquor and few jerry canes were lying beside him. When accused saw police
party he tried to escape away but complainant party apprehended him at 1900
hours while using tactful efforts. On inquiry regarding name and parentage of
accused he disclosed his name as Aakash son of Narain b/c Kachi Kolhi. After
that complainant party checked the jerry canes available at place of incident in
which smell of wine was coming. From place of incident complainant party
recovered 10 yellow color jerry canes each having 30 liters of unprepared liquor,
one blue color cut jerry cane having 30 liters of unprepared liquor, one red color
jerry cane filled with 30 liters of unprepared liquor, one yellow color bucket
having 20 liters of unprepared liquor, one iron drum filled with 100 liters of
unprepared liquor, (total unprepared liquor 480 liters), one jerry cane filled with
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05 liters of prepared liquor. On further inquiry accused disclosed that he sales
desi wine after preparation in order to earn livelihood. Since accused made
offence punishable under article 3-4 PEHO therefore police booked accused for
said offence and formally arrested him. From the body search of accused
nothing was recovered. After that complainant secured 100 ml for chemical
analysis in one bottle of 100 ml and sealed the same. Due to un-availability of
private persons complainant associated PC Rehan Din and PC Naveed Raza to
act as mashirs in this case and prepared memo of arrest and recovery and
obtained their signatures on it. Thereafter complainant along with staff and case
property went to PS A-Section Tando Allahyar and narrated facts to ASI Ahmed
Khan Lashari who on dictation of complainant lodged FIR against accused person
bearing crime No. 333/2023 on behalf of the State.
03. After usual investigation, the final police report under section 173-A
Cr.P.C submitted before the competent Court of law, showing the accused
person on court bail.
04. The copies of necessary case papers were supplied to the accused
person as required u/s 241-A, Cr.P.C, vide a receipt obtained from him and kept
on record at Ext.01.
05. The formal charge was framed against accused person u/s 242,
Cr.P.C at Ext.02. The content of charge was read over to accused person to
which he denied, vide his plea was recorded at Ext:02/A.
06. The prosecution in order to prove its case examined PW-01
ASI/Complainant Ali Rehmatullah Pirzado at Ext.03. He produced departure entry
from CIA centre at Ext. 03/A, memo of recovery at Ext.03/B, original FIR at Ext.
03/C. Pw-02 mashir/witness PC Rehan din was examined at Ext. 04. He produced
memo of place of incident at Ext. 04/A. PW-03 IO/ASI Ahmed Khan Lashari was
examined at Ext. 05. He produced entry for lodgment of FIR at Ext. 05/A, police
mall khana entry at Ext. 05/B, joint Roznamcha departure and arrival entry for
visit of place of incident at Ext. 05/C, joint entry for sending secured samples at
Ext. 05/D, receiving/letter from laboratory at Ext. 05/E, letter for sending
samples at Ext. 05/F and original chemical examiner report at Ext. 05/G.
Thereafter, prosecution side was closed by learned ADPP on behalf of the State
vide statement at Ext.06.
07. The statement of the accused person was recorded at Ext.07. In
which he denied the charges alleged false implication by the Police, claimed to
be innocent and prayed for justice. The accused person neither examined
himself on oath nor he lead any evidence in his defense.
08. I have heard learned defence counsel, learned ADPP for state and
perused the entire material available on record.
09. The points of determination before me now on as under:-

POINTS

Point No.01 Whether on 25.09.2023 at 1900 hours, from Rindabad colony

near grid station Tando Allahyar, the police party of CIA centre in
supervision of ASI Rehmatullah Pirzado along with mashirs PC
Rehan Din and PC Naveed Raza, apprehended accused named
above and police recovered 10 yellow color jerry canes each having
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 30 liters of unprepared liquor, one cut jerry cane having 30 liters of
unprepared liquor, one red color jerry cane filled with 30 liters of
unprepared liquor, one yellow color bucket having 20 liters of
unprepared liquor, one iron drum filled with 100 liters of
unprepared liquor, (total unprepared liquor 480 liters), one white
color jerry cane filled with 05 liters of prepared liquor from his
possession, as alleged by the prosecution?

Point No. 2 What offence, if any, has been committed by the present

accused?

10. My findings on the above points, with the reasons are as under:

FINDINGS
Point No:1………………………..Doubtful.
Point No:2 …………………….… Accused persons are acquitted u/s
245 (i) Cr.P.C.

I N V E S T I G A T I O N AND R E C O V E R Y
Point No.1
11. During the course of trial, so many material contradictions and lacunas
transpired in the case of prosecution. The complainant of the case did not
associate any private person to act as mushir of arrest and recovery. Admittedly,
the recovery was made in presence of police officials. There is no evidence on
record to believe that the complainant had made efforts to associate private
mushirs with recovery proceedings especially when the place of recovery was
public place. It has been held in the case reported as (1977 P. Cr. L. J at page
No. 671) that false implication cannot be ruled out when not a single
independent public witness cited. It has been held by our own Honourable High
Court in the case reported in (P. L. J 1990 Cr. C (Karachi) at page No.
103) that Court to be always vigilant to know as to why witness has trudged all
the way from his place to the place of search and why police could not have a
search witness from the locality. Hence, complainant willfully ignores the
Section. 103 Cr.P.C. So also the settled principal of law and same cannot be free
from doubt.

OCULAR EVIDENCE
12. PW-1 Complainant ASI Rehmatullah Pirzado during his cross examination
admitted that he has not mentioned the color of 05 liters jerry cane filled with
prepared liquor in examination in chief . Complainant as well as PW-02 in their
cross examination contradicted their version regarding the color of marker/pen
used on endorsement of case property viz 05 liter jerry cane filled with prepared
liquor. Complainant in his cross examination stated that he wrote endorsement
on recovered jerry canes with blue color pointer, while PW-02 in his cross
examination admitted that 05 liters jerry cane produced in the court is having
endorsement written with different color markers. On suggestion of learned
counsel for accused complainant stated that he put 03 seals on 05 liters jerry
cane filled with prepared liquor, on the other hand in second line he admitted
that said jerry cane produced in the court is having 02 seals. Furthermore,
complainant during his cross examination accepted that he has not recovered
any other material or article used in preparation of desi wine. Complainant in his

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cross examination stated that they recovered one white color drum from place of
incident having 100 liters of unprepared liquor, while in second line he admitted
that one black color drum is produced in the court instead of white color drum.
PW-01 and PW-02 both admitted during their cross examination they did not seal
whole recovered property at place of incident. PW-3 ASI/I.O accepted during his
cross evidence deposed that he send samples of katcha wine to chemical
examiner after the delay of 06 days of incident. He also accepted that there is
no any criminal record of accused person. The statement of PW-1
ASI/Complainant and Mushir/eye witness PW-2 contain material contradictions
with each other, which create reasonable doubt either ASI/Complainant and
Mushir/eye witness PW-2 have no knowledge about the incident or they mixed
up with the accused person outside of the Court. Furthermore, there is possibility
of false implication of accused in this case on instigation of other official raise
the rating of crime numbers to show their efficiency.
13. Not only this, but there are so many other material contradictions in the
prosecution case but it is not necessary to mention each and every contradiction
because it is well settled principle of law that even a single doubt is created in
prosecution’s story its benefit is to be extended to accused as a matter of right
not matter of grace. The prosecution is bound to prove its case beyond the
shadow of doubt. The case in hand is also not free from doubt. While making this
view, I forfeited by the case of Hassan & 3 others Versus The State duly
reported in(2020 P Cr. L J Note Page No. 14 [Sindh (Hyderabad
Bench]where in the Honourable High Court of Sindh, Circuit Court, Hyderabad
held as under:-

“(b) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance
created reasonable doubt in prudent mind about the guilt
of the accused, then accused would be entitled to its
benefit not as a matter of grace and concession but as a
'matter of right', hence single doubt was sufficient to
acquit the accused”.

CONCLUSION
14. The conclusion of the above discussion is that Prosecution
miserably failed to prove that accused person has committed any offence for
which he could be charged. Thus, the point no:1 is “DOUBTFUL” because no
sufficient and confidence inspiring evidence came on the record during the
course of trial in order to hold that the accused person has committed the
offence punishable Under Article 3, 4 Prohibition of Enforcement of Hadd
Ordinance (1979)or under any other penal law for the time being in force.
Prosecution’s case is replete of infirmities; those render the whole story doubtful
thus it cannot be relied upon to convict the accused person. It is well established
that in a criminal trial the burden is always upon the prosecution to prove its
case. As it has been held time and again by the superior Courts that in order to
extend benefit of doubt a single circumstance creating a reasonable doubt would

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be sufficient to grant premium, not as a matter of grace and concession, but as a
matter of right. The reference respectfully can be made case of Ali Haider V. The
State reported in (2014 P Cr. L J at Page No. 783) whereas in this case the
Honourable High Court of Sindh observed as follow:

“----Appreciation of evidence--- Benefit of

doubt--- While trying a criminal case, it was the
duty of the court to appraise evidence strictly
according to legal requirements of law without
being influenced away emotionally for any other
extraneous reason, which fell outside the pale
of legal jurisdiction of appraisement of
evidence---Prosecution was duty bound to prove
the case against accused beyond doubt; and in
that process not only, if there was any room for
doubt, benefit thereof had to go to accused, but
if any legal provision, which was to be relied
upon in the appraisement of evidence; and was
open to two clarifications, one beneficial to
accused, had to be adopted---To bring home
guilt of accused, legal evidence was required to
be of incriminating nature to connect accused
with the commission of crime beyond any
shadow of reasonable doubt”.
Point No.2.
15. In view of facts, circumstances and discussion supra, the prosecution failed
to prove its case against the accused person beyond the shadow of doubt.
Therefore, the accused person namely AAKASH S/O NARAIN B/C KACHI
KOLHI, is hereby acquitted under section 245(1) Cr.P.C. Accused person is
present in the court on bail, his bail bond stands cancelled and surety is
discharged.

Announced in open court.

Given under my hand and seal of this Court.
This 9th day of January, 2024.

______________
(KOSAR GABOL)
Ist. Civil Judge & Judicial
Magistrate
TANDO ALLAHYAR
CASE PROPERTY ORDER U/S 517, CR.P.C.

The case property viz, 10 yellow color jerry canes each having 30
liters of unprepared liquor, one cut jerry cane having 30 liters of unprepared
liquor, one red color jerry cane filled with 30 liters of unprepared liquor, one
yellow color bucket having 20 liters of unprepared liquor, one iron drum filled
with 100 liters of unprepared liquor, (total unprepared liquor 480 liters), one
white color jerry cane filled with 05 liters of prepared liquor, allegedly recovered
Page 5 of 6
from accused person and from place of incident, shall be destroyed as per law
subject to expiry of appeal period.

______________
(KOSAR GABOL)
Ist. Civil Judge & Judicial
Magistrate
TANDO ALLAHYAR

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