This order would dispose of the present revision petition as also revision petition No. 851 of 1979 filed on behalf of Allah Ditta. The petitioner Tai Muhammad and the aforementioned Allah Ditta were both tried under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) by Mr. Muhammad Jamil Akhtar Javed, Magistrate Section 30, Sahiwal, and were convicted and sentenced to two years' R. I. And ten stripes each vide order dated 21-5-1979. They challenged the above order by filing separate appeals in Court of Sessions but their appeals were dismissed by the Additional Sessions Judge, Sahiwal, vide his order dated 20-10-1979. They have now filed separate revision petitions challenging the order of conviction passed against them by the Courts below.
2. The petitioners were apprehended by Muhammad Anwar H. C. No. 843 of P. S. Chichawatni on 18- 4-1979 at 1-00 p. m. When they were found in state of drunkenness in front of the shop of Taj Muhammad petitioner. Muhammad Anwar H. C. Was on a patrol duty and was present in Chowk Dhranga of Chichawatni when he was attracted by the noise of the petitioners. After apprehending the petitioners in the presence of Fazal Ali, Mahboob Ali, Ghulam Qadir arid Muhammad Isa, he referred them to the Medical Officer of Rural Health Centre, Chak 45/12-L for medical examination as the Medical Officer, Civil Hospital Chichawatni was not available. Dr. Fazal Miran, Medical Officer posted at the Rural Health Centre Chak No. 45/12-L, after medically examining the petitioners found that they were under the influence of intoxicating liquor as he had noticed positive symptoms of consumption of liquor by them. After the completion of the investigation, the petitioners were challaned and sent up for trial.
3. The prosecution examined Dr. Fazal Miran P. W. 1, Fazal Ali P. W. 2 and Muhammad Anwar P. W. 3 in support of its case. The 'petitioners pleaded that they had been implicated falsely in the case at the instance of one Raza Hussain Shah as Taj Muhammad petitioner had refused to vacate his shop occupied by him. The petitioners also produced two witnesses in defence to show that the police had taken away the petitioners as the owner of the shop occupied by Taj Din petitioner had quarrelled with him a few days before the police had come to the shop and had asked him to deliver its possession to him. The learned trial Magistrate after considering the prosecution evidence and the plea taken up by the petitioners came to the conclusion that the charge brought out against the petitioners was proved beyond reasonable doubt. He accordingly convicted them.
The learned Additional Sessions Judge also agreed with the trial Magistrate and found that the conviction of the petitioners was in order.
4. The learned counsel for the petitioners has contended that the provisions of Article 12 of the Order were violated by the police as the petitioners were arrested by Muhammad Anwar P. W. 3 without first requiring them to accompany him .To the authorized Medical Officer for medical examination. The prosecution and the trial of the petitioners was, therefore, illegal. It has been further contended that the petitioners were not examined by an authorized Medical-Officer and as such their conviction on the testimony of Dr. Fazal Miran Choudhri, who was not an authorized Medical Officer, was illegal. The petitioners have also questioned the opinion of the aforementioned Medical Officer which he had given merely on the basis of some symptoms noticed by him. These symptoms could not have been present at the time for the petitioner's medical examination because they had allegedly taken only a small quantity of liqour which must have been digested by the time they were medically examined. The Medical Officer had not taken the stomach wash or blood or urine of the petitioners for examination which would have proved beyond doubt as to whether the petitioners had taken intoxicating liquor or not. Lastly it was pointed out that the prosecution's failure to examine any independent witness in support of its case (as according to the petitioners Fazal Ali P. W. 2 was not an independent witness) showed that the prosecution case was not based on facts.
5. The learned counsel for the State has supported the petitioners conviction and has submitted that the petitioners were arrested by Muhammad Anwar P. W. 3 only after they had refused- to accompany him for medical examination, as stated by him in his cross-examination. He is also supported by Fazal Ali P. W. 2 who has stated that police had hand-cuffed the petitioners only when they had refused to go to the hospital for medical examination. According to the learned counsel for the State the petitioners' conviction cannot be challenged even if it is found that they were arrested in violation of the provisions of clause (1) of Article 12 of the Order because an offence under Article 11, if committed at a public place is a cognizable offence as provided in Article 16 of the Order. Muhammad Anwar H. C. Was legally competent to arrest the petitioners even without having asked them to accompany him for medical examination. The petitioners' arrest was, therefore, not illegal and in any case it did not affect their trial and conviction for the offence committed by them: Clause (2) of Article 12 of the Order which provides punishment for contravening the provisions of clause (1) which requires a police officer to ask the person whom he suspects to have taken an intoxicant for medical examination before detaining or arresting such person, has been designed to provide a safeguard. Against arrest by the police merely on suspicion. Non-compliance with he provisions of clause (1) of Article 12 by Muhammad Anwar P. W.
3 as alleged by the petitioners may at the most render him liable to prosecution under clause (2) of the said Article at the instance of the petitioners but on account of this, proceedings against the petitioners for having committed an offence under Article 11 are not vitiated. As regards the testimony of Dr. Fazal Ali P. W. 1, the learned counsel for the State has contended that the learned trial Magistrate has rightly accepted it because the view expressed by him that the petitioners were under the influence of intoxicating alcohol was based on positive symptoms noticed by him at the time of examination of the petitioners. It was not necessary for him to have carried out any further test by obtaining their stomach-wash or blood or urine. His opinion also cannot be challenged by the petitioners on the ground that he was not an authorized Medical Officer because he was a Government employee. The learned counsel for the State has further stated that the prosecution was not bound to examine all the persons as witnesses whose names have been mentioned in the calendar of witnesses. There is nothing on the record to show that Fazal Ali P. W. 2 is an interested witness and as such his testimony cannot be discarded on that account. Lastly the learned counsel for the State has stated that the plea taken up by the petitioners in their defence was not convincing and that the Courts below had rightly rejected it in view of discrepant statements made by the defence witnesses.
6. I have carefully considered the arguments of the parties' counsel and have gone through the record. The petitioners' conviction under Article 11 of the Order is mainly based on the medical evidence because the petitioners had not taken intoxicating liquor within the view of any person.
They were no doubt found in a state of drunkenness when they were apprehended by Muhammad Anwar P. W. 3 in the presence of Fazal Ali P. W. 2 but whether they had actually taken intoxicating liquor and were under its influence was to be established by the result of their medical examination. Thus the petitioner' contention that the prosecution's failure to examine the other persons in whose presence they were allegedly apprehended raises any presumption against the prosecution has no force as the deposition of these witnesses would not have advanced the prosecution case any further because the petitioners had not taken intoxicating liquor in their presence. There is also no force in the petitioner's contention that Fazal Ali P. W. 2 is an interested witness, as there is nothing on the record to show that he was inimical towards to petitioners that he was a professional witness who has been appearing in Court in the pastas a prosecution witness.
7. The medical evidence which, ac noticed above, is the most material evidence from the prosecution point of view, has been challenged by the petitioners on a number of grounds. In the first instance it is contended that Dr. Fazal Miran P. W. 1 was not an authorized Medical Officer within the meanings of Article 2(b) of the Order and as such he was not competent to examine the petitioners. There is, however, no force in this contention because Dr. Fazal Miran being incharge of Primary Health Centre Chak No. 45/12-L was in the employment of Provincial Government and as such was an authorized Medical Officer by virtue of rule 2(b) of the Punjab Prohibition (Enforcement of Hadd) Rules, 1979. According to this A Rule an authorized Medical Officer means any person registered as a medical practitioner under the law for the time being in force and in the employment of Federal or Provincial Government or public Authority or any other corporation set up by the Government. The second objection raised by the petitioners with regard to medical evidence is that Dr. Fazal Miran P. W. 1 had given his opinion that the petitioners were under the influence of intoxicating liquor merely on the basis of certain symptoms notified by him. These symptoms could not have been present at the time of the petitioners' medical examination as the quantity of liqour allegedly taken by them was small as stated by Dr. Fazal Miran. Examination of the stomach-wash, urine or blood of the petitioners would have positively established as to whether the petitioners were under the influence of the intoxicating liqour or not. Dr. Fazal Miran was cross-examined at length by the defence counsel before the trial Magistrate. He bad explained as to why he had not considered it necessary to take the stomach-wash or blood or urine of the petitioners as according to him the symptoms noticed by him after examining the petitioners were sufficient to indicate that they were under the influence of intoxicating liquor. He had stated that examination of the stomach-wash or blood or urine for determining whether any person is under the influence of any intoxicant is undertaken in a belated case. In fresh cases, such examination is not considered necessary. According to him the petitioners' case fell within the category of fresh cases. He had found that there was smell of liquor in their breath. Their staggering gait, slurred speech, blurred vision and rude behaviour were sufficient to indicate that they were under the influence of intoxicating liquor. Although Dr. Fazal Miran had stated that the petitioners had consumed a small quantity of liquor and as such there was a possibility that it might have been digested when they were medically examined but it does not necessarily mean that the symptoms noticed by Dr. Fazal Miran could not have been present because it is not only the quantity of alcohol which is taken by a person that produces the aforementioned symptoms but the weight and the general physique of the person, the kind of alcohol and manner in which it is taken i.e. Whether it is taken slowly at intervals or all at one gulp and various other factors which are all relevant for the purpose. Dr. Fazal Miran is supported by rule 5 of the Punjab Prohibition (Enforcement of Hadd) Rules, 1979 which provides that the Medical Officer can presume the taking or influence of the intoxicant from symptoms such as hang over effects, nausea, headache, gastritis, thirst generalized residual malaise, physical or mental incompetence or over drowsiness, euphoria, dyehoria or other after-effects of taking an intoxicant and in such a case the examination of blood or stomach-wash may be dispensed with. The next objection raised by the petitioners with regard to the medical evidence is that 1they were taken to Dr. Fazal Miran for medical examination in Chak No. 45/12-L which was at a distance of 7 miles from Chichawatni, as the police knew that he would readily support their case because otherwise the petitioners could have been taken to Sahiwal which being connected by a metalled road with Chichawatni, was easily accessible as compared to Chak No. 45/12-L even if the explanation given by the police that no male Medical Officer was available at Chichawatni is accepted. This objection is also without any substance because the petitioners have drawn an inference against Dr. Fazal Miran which is not supported by any material on the record. The mere fact that the petitioners were not taken to Sahiwal for medical examination would not l-ad to the conclusion that they were got medically examined by a biased Medical Officer because there is nothing on the record to show that Dr. Fazal Miran was inimical towards the petitioners or that he had assured the prosecution to depose in its favour. A reference to rule 5 of the Punjab Prohibition (Enforcement of Hadd) Rules, 1979 shows that for the medical examination of a person under Article 12 of the Order he has to be taken to the nearest authorized Medical Officer who can be easily accessible according to the circumstances of the case. The police in the present case had found that Dr. Fazal Miran was easily accessible as he was available in Chak 45/12-L which was at a distance of only 7 miles from Chichawatni. The medical examination of the petitioners by Dr. Fazal Miran P. W. 2 is therefore, not open to any objection.
8. I am inclined to agree with the learned counsel for the State that non-compliance with the provisions of clause (1), Article of 12 of the Order by the police in the present case would not affect the trial of the petitioner because the provisions of clause (1) of Article 12 are intended to provide a 8 safeguard against the arrest of any person by the police merely on suspicion and in the event of violation of that safeguard by a police officer, the remedy is available to the aggrieved person by making a complaint against him under clause (2) of Article 12.
9. It is not necessary to refer to the plea taken up by the petitioners in their defence because the prosecution has succeeded in proving its case beyond reasonable doubt against them. The Courts below have rightly rejected the plea taken up by the petitioners in defence in view of the discrepant statements made by their witnesses.
10. For the foregoing reasons, I see no ground to interfere with the order of conviction passed by the trial Magistrate as confirmed by the learned Additional Session Judge against the petitioners. As they were found in a state of drunkenness in public, the sentence of imprisonment and whipping awarded to them does not appear to be excessive. The revision petitions filed by the petitioners are accordingly dismissed.