' KHAWAJA MUHAMMAD SAEED, J.--- This appeal is directed against the judgment of the Shariat Court, dated 28-5-2002.
2. Facts giving rise to the present appeal, briefly stated, are that Tehsil Qazi Muhammad Ghous on 3-6-1993 informed the police that the appellant and another person are quarrelling with the passengers of Suzuki No,RIL-5735, therefore, necessary action be taken against them A.S.-I. Shoukat Hayat reached on.The spot and found the appellant and one Rashid Raheem quarrelling with the passengers of Suzuki. He found them in an intoxicated position as alcoholic smell, according to him, was emitting from their breath. He took them in custody and produced them before the doctor who confirmed that the accused are drunk and further that alcoholic smell was emitting from their breath. A.S.-I. Shoukat Hayat, registered a case under section of the Prohibition of Hudood Ordinance against both the accused persons and submitted a challan in the Court of law on 8-3- 1993. The co-accused Rashid Raheem absconded however, the appellant faced the trial who at the end of the trial was awarded three years rigorous imprisonment with 10 stripes by Tehsil Court of Criminal Jurisdiction vide its order, dated 22-1-2002. He availed the right of appeal before the District Court of Criminal Jurisdiction, Pallandri. His appeal was partly allowed by the said Court and sentence of imprisonment was reduced from three years to six months and he was also excused from 10 stripes. He filed a revision petition before the Shariat Court which was dismissed vide judgment under challenge.
3. Khawaja Farooq Ahmed, the learned counsel for the appellant, hi support of the appeal argued that except the police witnesses only one independent witness, with whom it was alleged that he was quarrelling when A.S.-I. Shoukat Hayat on the telephonic message of Qazi Ghous took him in custody, has not owned the case of the prosecution. No other independent witness was produced, therefore, the conclusion which in the circumstances can be gathered is that these witnesses were not supporting the case of the prosecution, as such, were not produced in the Court. He further argued that the doctor in his Court statement has stated that the reasons recorded by him in support of his certificate that accused appellant was drunk, can also be the result of some medicine taken as a treatment of some other disease. According to him, only this ground is not sufficient to record conviction against the appellant that he has failed to prove any enmity with Qazi Ghous or police which is not a valid ground.
4. On the other hand, Raja Ibrar Hussain, the learned Advocate-General, defended the judgment of the Shariat Court. However, he admitted that the sentence has been reduced from three years to six months without recording any reason. He requested that appropriate sentence be passed against the accused-appellant.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. It is a settled proposition of law that presumption of innocence remains available to the accused person till the time a judicial verdict is recorded against him connecting him with any offence. In the present case we have noticed that the basic case set up by the prosecution was that the accused-appellant alongwith co-accused was quarrelling with the passengers of Suzuki No,RIL-5735. Out. Of the passengers one Muhammad Hanif was produced who has not owned the version of the prosecution, as such, he was declared hostile and was even cross-examined but no favorable statement could be obtained from him. Even other important witnesses, including the person who informed the Qazi about the quarrel with the passengers by the appellant and his co-accused and the driver, Conductor or other passengers though cited as witnesses, were not produced before the Court. We agree that it is not mandatory for the prosecution to produce all the witnesses cited by it in the calendar of witnesses. However, if a material witness is withheld then the presumption can be taken against the prosecution that such witness if produced would have not supported the case of the prosecution. In this case despite repeated notices, service was not effected upon the independent witnesses. Even the summons were not returned to the Court, therefore, the Court was constrained to close the evidence of the prosecution to the extent of such witnesses. We, therefore, can assume that these witnesses like Muhammad Hanif P.W. Would have not supported the prosecution case. The doctor has said that some of the symptoms noticed by him could be on account of some other disease or medicines carrying some quantity of alcohol. Even though he has supported his certificate but on account of the aforementioned admission we think that it is a case where benefit of doubt should have been extended to the appellant which was extended to him by the District Court of Criminal Jurisdiction as it reduced the sentence of three years to six months.
' We, in view of above reasoning, allow this appeal and set aside the orders of the Shariat Court and the District Criminal Court by extending the benefit of doubt to the accused appellant and acquit him from the charge.