' Umar Hayat petitioner was tried under section 6 of the Punjab Prohibition 'Act', 1978, by Ch. Abdul Hag, Magistrate First Class, Lahore, who, by his judgment, dated 20th June 1981, convicted him on the said charge and sentenced him to six months' R. I. His appeal before the Sessions Court having failed, he has come up in revision to this Court to question the correctness and propriety of the orders of the Courts below.
2. The prosecution version as detailed in the F. I. R. Is that on 20th December, 1978 a police party consisting of Fazal Muhammad Inspector, Maqsud Hussain, Nazir Ahmad, Zahur Din Sub-Inspectors, Muhammad Awais A.-S I. And Muhammad Munir F. C. Were present at McLeod Road, Lahore. Abdul Rashid P. W. Was also with them. They received secret information that Umar Hayat petitioner was selling liquor to his customers at his hotel known as Benz Hotel, McLeod Road, Lahore. They, conducted a raid on the said hotel and recovered six bottles of liquor wrapped in a cloth from the gallery over the eastern room of the hotel.
3. The petitioner pleaded not guilty to the charge and stated that he had a money dispute with the proprietor of Benz Hotel who got him falsely implicated in this case. He produced two witnesses in his defence who stated that the petitioner had no connection whatsoever with Benz Hotel and that he had a money dispute with the proprietor of that hotel.
4. The learned counsel for the petitioner contended that none of the Courts below applied its mind to the facts and the law and there is no evidence on the record to show that the petitioner was found in possession of illicit liquor, therefore, his conviction and sentence is unsustainable.
5. The perusal of the record shows that the petitioner was charged and convicted under section 6 'Prohibition Act', 1978. No 'Act', of this name and description is in existence. There is, however, an Ordinance of the same description. Subsection (1) of section 6 of this Ordinance provides :- "No officer shall detain or arrest any person on suspicion that he has consumed intoxicating liquor in violation of section 4 and is under the influence thereof, unless he has given to such person notice to accompany him to a medical practitioner for examination whether he is in fact under such influence nor unless such person either refuses to so accompany him or, having been examined by the medical. Practitioner, is certified by him to be under such influence."
' Subsection (2) of this section provides punishment for contravention of subsection (1). It is evident that none of the courts below applied its mind to the facts and the law applicable to the case. The petitioner was tried for keeping intoxicating liquor without licence and section 6 of the Ordinance was not at all applicable to his case. The relevant section dealing with possession, etc. Of intoxicating liquor is section 3 of the aforesaid Ordinance. In the circumstances, the conviction o the petitioner under section 6 of the Punjab Prohibition Ordinance, 1978, is not sustainable.
6. Now, I proceed to consider the contention that there is no evidence on the record to prove that the petitioner was found in possession of illicit liquor. According to the F. I. R., the case of the prosecution was that the petitioner was proprietor of Benz Hotel and the liquor was recovered from a gallery over the eastern room of that hotel. Abdul Rashid (P. W. 1), the only witness from the public, stated that the liquor was recovered from Sherdil Hotel from underneath the chair of the petitioner at 8 a. m. According to him, Sherdil Hotel was in a single-storeyed building. In cross- examination he admitted that he had previously appeared as a prosecution witness in twenty or twenty-five cases. Maqsud Hussain, Sub-Inspector, on the other hand, stated that the raid was conducted at 6 p. m. On the upper storey of Benz Hotel. Nazir Ahmad, S.-1, stated that the liquor was recovered from the gallery of Benz Hotel while Fazal Muhammad, Inspector, came up with the version that it was recovered from the room of the hotel. The evidence of Abdur Rashid P. W. And that of police officers thus suffers from material dicrepancies as to the time and place of recovery.
' I have also noted that it was not put to the petitioner that he was the owner of Benz Hotel and intoxicating liquor was recovered from there ; therefore, the statements of the police officers, referred to above cannot be used against him. In his statement under section 342, Cr. P. C.' the petitioner denied that any illicit liquor was recovered from underneath his chair in Sherdil Hotel. The only witness from the public, namely, Abdur Rashid who stated that the liquor was recovered from Sherdil Hotel, seems to be a stock-witness of the Police as he previously appeared as a P. W. In twenty or twenty-five cases. Moreover, his statement as to the time and place of recovery is at variance with that of the police officers. Maqsud Ahmad, S. .I., admitted that no person from the place of recovery was joined in the raiding party. I am, therefore, of the view that the prosecution has not been able to prove that the petitioner was found in possession of intoxicating liquor.
7. For the foregoing reasons, I allow this petition, set aside the conviction and sentence of the petitioner and acquit him of the charge. He is on bail. He shall be discharged from his bail bond..