This is an appeal directed against the order of Mr Muhammad Saleem. Additional Sessions Judge III, Peshawar dated 15th October, 1981 convicting the appellant under Article I I of the Prohibition (Enforcment of Hudd) Order, 1979, and sentencing him to two month's' R. I.
2. It was argued that the impugned order is against law and facts on the record; that the prosecution has riot been able to establish its case against the appellant beyond reasonable doubt and that in the presence of rule 6 of the Rules framed under the Order, the Police was incompetent to prosecute the appellant independently and that the report had to be trade by the Prohibition Officer.
3. In order to appreciate the arguments addressed at the bar, it will be necessary to set out the relevent facts. Gul Hassan Khan, A. S. I., was on duty in the Casualty Department of the Lady Reading Hospital, Peshawar on 27th December, 1978. It is contended that at 9-00 p. m. He found Muhammad Nawaz, the appellant, near the said Casualty Depart--ment. He was suspected to have consumed alcohol, therefore, he took him to Dr. Muhammad Ayub Khan, for his Expert opinion.
The said Doctor vide his report Exh. PD/I found the appellant to have taken alcohol by mouth. The stomach wash was sent to Chemical Examiner who confirmed the observation of the Doctor vide report Exh. PD/2. On receipt of the report of the Doctor, the Police Officer prepared a murasila Exh.
PD/I and sent it to Police Station, Kabuli for incorporation into the formal F. I. R. Exh. P. A. Case under Article 8 of the afore--mentioned order was therefore, registered. On completion of the formalities, charge-sheet was put in, in the Court of the said Additional Sessions Judge.
4. The accused dented the charge and claimed trial. Therefore, to bring home the charge to the accused, in addition to Gul Hassan Khan, Dr. Muhammad Ayub Khan, Ghulam Sardar Khan Sub- Inspector and Abdul Ali Khan, Inspector, and Additional S. H. O. Police Station Kabuli, were respectively examined.
5. The accused pleaded innocence and produced Dr. Ismail Qamar in his defence Relying can the evidence produced by the prosecution and ignoring that adduced in defence the appellant as stated earlier, was found guilty under Article 11 of the aforementioned Order and sentenced to two months' R. I.
6. Feeling aggrieved he has come up in appeal.
7. It was contended on behalf of the appellant that as the proceeding were conducted in violation of rule 6 of the Rules framed under Article 2 3 of the Order, therefore, the entire proceedings stand vitiated.
8. The argument on consideration will, however, not be available to the appellant on two-fold grounds, namely, that rule 6 has already been deleted as is clear from Letter No. 2162/PN Co/PR/81, dated 14th October, 1981, Government of Pakistan, Narcotics Control Board, and addressed to the Director (Excise and Taxation), N.-W. F. P., Peshawar and secondly, the "Authorised Official" referred to in the Rules, on close scrutiny of the relevant law, will cover official other than the Police Officer.
The case, in the circumstances is to be considered on merits.
9. It is in the statement of Dr. Muhammad Ayub Khan that "I do not remember that whether the present accused was brought to me or he had come before me by himself to the Casualty Department for treatment." It has been further stated that "I do not remember that two persons had come with the present accused. It is correct that there are some medicines which contain percentage of alcohol." In the early part of his cross--examination he has stated that "I have not given the name and parentage and the address of the person who was examined by me."
10. Evidently it is not clear beyond doubt that the report of the Doctor pertains to the appellant and none else. Moreover, it is not only in the statement of Doctor Muhammad Ayub Khan but that of Dr. Ismail Qamar also that there are medicines which contain alcohol; it has been stated by Dr. Ismail Qamar that he had prescribed him (the appellant) sentivine which contains alcohol.
11. In view of the evidence, referred to above, as it is not proved beyond reasonable doubt that the appellant and none else had consume alcohol, therefore, extending him the benefit of doubt his appeal will, be accepted and if not required in connection with any other offence he (the appellant) be released forthwith.