MUHAMMAD SIDDIQ, J.--Shabbir Ahmad accused was found guilty under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) by the Magistrate Ist Class Rawalpindi vide impugned judgment dated 13-6-1984 and sentenced to undergo R.I. For 2 years and whipping numbering 10 stripes. On appeal the learned Additional Sessions Judge, Rawalpindi upheld the conviction of the convict but reduced the sentence of imprisonment from two years' R.I. To one year R.I. But the sentence .Of whipping numbering 10 stripes was maintained. He was also given the benefit of the provisions of section 382-B, Cr.P.C. The convict has filed the present criminal revision petition by invoking the revisional jurisdiction of this Court.
2. In support of its case the prosecution produced 7 witnesses. A.S.I. Raja Framarz Mumtaz (P.W.1) on receipt of report of the Chemical Examiner on 16-9-1982 had recorded the F.I.R. Exh. P.A. On that day against Shabbir Ahmad accused under Article 11 of the Order. In cross-examination the witness has admitted that he could not state as to when the report of the Chemical Examiner was received in the police station. He was given the report by S.H.O. Mumtaz but the witness did not know when the report was received by the said S.H.O. And he did not ask him when the said. Report was received by the S. H. O. He has further stated that he had taken the F.I.R. From the Roznamcha where it was entered on 14-5-1983.
3. Moharrir Fazal Karim (P.W.2) has stated that on 14-5-1982.He was working as Moharrir A.S.I. In Police Station Murree Road, Rawalpindi when he was entrusted by A.S.I. Ghulam Rabbani one sealed envelope and 2 sealed phials concerning this case and he kept the same in safe-custody in police Malkhana. On 22-5-1982 he handed over these parcels to constable Mushtaq Ahmad (P.W.6) who delivered the same intact in the office of the Chemical Examiner, Lahore. He was confronted with his police statement Exh. D.A: where certain things were not mentioned which he had deposed before the trial Court.
4. Constable Muhammad Hussain (P.W.3) claims to be an eye-witness. He has deposed that on 14- 5-1982 he alongwith A.S.I. Ghulam Rabbani P.W. And others was on patrol duty at about 9-00 p.m. In Bhabra Bazar, Rawalpindi Shabbir Ahmad accused was found making noise. A.S.I. Ghulam Rabbani P.W. Checked the accused and through constable Ghulam Jaffar sent him to the Civil Hospital for 'medical examination. After medical examination said constable Ghulam Jaffar P.W. Handed over to this police, officer two sealed phials and one sealed envelope. The A.S.I. Let of the accused but brought the said phials and envelope to the police station. The statement of this witness under section 161, Cr. P. C. Was recorded by the Investigating Officer after 4 months. In cross-examination this witness has deposed that he did not remember whether the two sealed phials were taken into possession by the Investigating Officer or not. He denied the defence suggestion that he was not present on the spot and being police official was deposing falsely.
5. A.S.I. Raja Ghulam Rabbani (P.W.4) is the Investigating Officer in this case. He has stated that on 14-5-1982 he alongwith F.Cs. Muhammad Hussain and Ghulam Jaffar was on patrol duty in Bhabra Bazar Rawalpindi. A person whose name was subsequently revealed as Shabbir Ahmad came there making noise under the influence of liquor. He was captured by the police and on examination it was found that smell of liquor was coming from his mouth. The Investigating Officer has prepared Naksha Makhmuri Exh. P. B. And sent the accused to the Civil Hospital for medic&1 examination under the guard of F.Cs Ghulam Jaffar and Muhammad Hussain. The doctor alongwith the medical report also sent 2 sealed phials and one sealed envelope to this police officer which he took into possession vide recovery memo. Exh. P. C. The accused was produced before the Prohibition Officer who verified that the accused had taken liquor. The accused was allowed to go and memo. Exh. P. D was prepared. He entered the report in the Roznamcha (Exh.
P.A). The sealed phials and sealed envelope were handed over to Moharrir for safe-custody. On receipt of report of the Chemical Examiner, Exh. P.A. Was registered. On completion of the investigation, he challaned the accused. In cross-examination this police officer has admitted that the Prohibition Officer had issued no certificate after the examination of the accused. According to him he had received report of the Chemical Examiner, Lahore on 16-9-1982 and on the basis of that report he had registered the present case. He had written Roznamcha with his own hand. The witness could not tell that the said parcels were sent to Lahore by the Moharrir. On seeing the case diary the witness stated that the said parcels were sent to Lahore on 22-5-1982. He had not asked the reasons for the delay in sending the parcels. He has admitted that on the day of occurrence he had not recorded the statement of any witness at the spot. He had only prepared memo. Of possession and plan of the place of occurrence. He had prepared only memos. And the subject- matter, etc. And those were entered subsequently. He had not even mentioned the number of Medico-legal report. According to him smell of liquor was coming from the mouth of the accused and, therefore, he inferred that the accused was under the influence of liquor. When he handed over the parcels to Moharrir, this officer had not written anything on the said parcels. Even the name of the accused and the number of the report were not indicated He admitted that the place of occurrence was a populated area. He denied the suggestion that Banaras and Rab Nawaz were his friends and he did not know whether the said 2 persons had any quarrel with a person named Shabbir Ahmad. He denied the suggestion that said 2 persons Banaras and Rab Nawaz had come to him to lodge the report. It is further denied by him that he had called Shabbir Ahmad from his house and was subjected to beating and as a result of which he received some injuries. It is further denied by him that he had given some medicine to the accused. He denied the suggestion that the accused received 5/6 injuries from the witness and due to that injuries the accused was sent to the hospital for treatment. It is further denied by him that it was due to the mixture given by him to the accused. The accused could not know what it was and on the basis of saying the doctor certified that the accused had taken liquor. He has also denied the suggestion that to save his own skin he forcibly made accused to take liquor and then to win his sympathy the accused was let of.
6. Constable Jaffar Hussain (P. W.5) was posted in Police Station Murree Road, Rawalpindi at the relevant time. On 14-5-1982 he alongwith A.S.I. Ghulam Rabbani and other police officials was on patrol duty in Bhabra Bazar, Rawalpindi. At about 8-30 p. m. a person came who had injuries on his person. He was staggering and fallen down on the ground. A.S.I. Ghulam Rabbani P.W. Captured him and on checking found that bad smell of liquor was coming from his mouth. Subsequently his name was revealed as Shabbir Ahmad. The A.S. I. Ghulam Rabbani P.W. Prepared Nakhsha Makhmuri on the spot and sent the accused to the hospital for medical examination. The doctor after examination gave 2 sealed phials and one sealed envelope to this witness which he delivered to the Investigating Officer and the same were taken into possession vide recovery memo. Exh. P.C.
In cross-examination it is stated by him that on the same day his statement under section 161, Cr.P.C. Was recorded at the spot (Exh.D.E). The date of this statement is 16-9-1982, then said that he did not remember the date. He was confronted with his police statement where certain things were not mentioned which he had deposed before the trial Court. He further admitted that on the northern side was the Clinic of Dr. Rehmat which was open at the relevant time. Similarly there were a number of shops near the spot out of which some were open but nobody from the public came otherwise to attest the memos.
7. Constable Mushtaq Ahmad (P.W.6) was also a member of the patrolling party. A.S.I. Fazal Karim P.W. Gave him two phials and one sealed envelope for delivering the same in the office of the chemical examiner, Lahore. According to him he delivered the said parcels intact in the said office on 23-5-1982 intact. He was confronted with his police statement Exh. D.C. Where it was not mentioned which he had deposed before the trial Court.
8. Dr. Muhammad Akhtar Khan (P.W.7) on 14-5-1982 at 10-15 p.m. Medically examined Shabbir Ahmad accused who was brought by constable Jaffar Hussain and made the following observations:- "He is conscious but lathatine. Speech is stuttering. Gait is normal. Eyes are congested and pupils are dilated and their reaction to light reflex is sluggish. Pulse is rapid and 129. B.P. Is 130/90 m.m.
High strong smell of alcohol is coming from his mouth. In my opinion he is under the effect of alcohol poisoning. However his samples of blood and urine are taken and sent to the Chemical Examiner for detection of alcohol.
INJURIES (1)Contused swelling on the bridge of nose is bleeding and from the nose c/o pain in the nose.
(2)Contused swelling on the right side of forehead.
(3)Contused swelling on the left side of head perietal region.
(4)An absaded contusion on the palmer aspect of right little finger.
(5)C/o pain right side of chest."
9. Shabbir Ahmed accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations. He statement he had not taken any liquor at the relevant time. When asked why this case was made against him, the accused stated as under:- The accused produced 4 witnesses in his defence.
10. Saghir Ahmad (D.W.1) has stated that, he knew the accused since long as he was his Mohallahdar. About 2 years earlier he had a quarrel with the accused on some money matter in which the witness had received some injuries. First the accused went to the police station against this witness and then this witness also reached there where he found his friend A.S.I. Ghulam Rabbani. He asked the said police officer that on the basis of his friendship he should arrest the accused. Thereafter he asked the accused to sit there and asked the witness to go. After 8/10 hours the accused came. The witness had no knowledge about the present occurrence and he did not know how the accused was arrested in the present case. Sheikh Muhammad Yousaf (D.W.2) claims to be the Chairman Union Committee A.A. Since 1964. He was also Chairman of Islahi Committee.
He knew the accused since his childhood and according to him he had not taken any intoxicant and had heard no such complaint against him. According to this witness about 2 years earlier he came to know that there was some dispute with Raja Saghir and they had gone to the police station where some settlement was brought between the parties. The accused returned after 8110 hours. Raja Muhammad Aslam (D.W.3) is Vice-Chairman of Islahi Committee and has stated that he knew the accused since 20/22 years. He had never seen the accused in intoxicated condition.
About 2 years earlier the accused had some quarried with Raja Saghir and both had received injuries and had gone to police station to lodge the report. The accused returned from the police station after 8/10 hours. Abdul Majeed Contractor (D .W .4) also claims to have known the accused since his childhood and never heard any complaint that he had taken any liquor nor he was ever seen by the witness in intoxicated condition. According to this witness the accused was of good moral character.
11. The trial Magistrate vide impugned judgment convicted and sentenced Shabbir Ahmad accused as mentioned above. On appeal his conviction was maintained but sentence was reduced by the Additional Sessions Judge, Rawalpindi as mentioned above.
12. Hence the Revision Petition
13. We have heard at length the counsel for the parties who have also taken us through the entire material available on the record.
14. It is vehemently contended by the learned defence counsel that inordinate delay in the registration of the case has not been satisfactorily explained by the prosecution. The occurrence in this case is alleged to have taken place on 14-5-1982 and the sealed parcels were received in the office of the Chemical Examiner, Lahore on 23-5-1982 and the date of his report is 24-5-1982. The case was registered at the police station on 16-9-1982. It is admitted by the learned State counsel that the case could be registered against the accused on 14-5-1982 immediately on the receipt of the report from the Doctor. If however, the Investigating Officer took abundant caution to await the report of the Chemical Examiner also, even that report must have been received on 24-5-1982 or immediately thereafter within a day or so. There is no explanation for this delay of several months in lodging the case against the accused. The office of the Chemical Examiner seems to be quiet prompt. It received the sealed parcels on 23-5-1982 and gave the report on the next date on 24-5- 1982. It is not known when the said report was actually received by the police from the Office of the Chemical Examiner. The onus was heavily upon the prosecution to explain this delay by producing some positive and direct evidence but it miserably failed to do so. No evidence whatever has been produced by the prosecution to explain this long delay of several months. If, for any reason, thee report of the Chemical Examiner was received late, the prosecution, should have explained the same. Now in the absence of any explanation direct or circumstantial, it is difficult to condone such inordinate delay in criminal cases of this type. The revision petition is liable to be accepted on this short ground alone.
15. The defence counsel has also pointed out some delay in despatching the sealed phials and an envelope to the office of the Chemical Examiner Lahore. According to constable Mushtaq Ahmad (P.W.6) he took the said sealed parcels on 22-5-1982 and he delivered the same in the office of the Chemical Examiner on 23-5-1982. The prosecution has offered no explanation for the delay from 14-5-1982 to 22-5-1982.
16. Another legal contention raised on behalf of the accused is that there is no certificate of the trial Court regarding the recording of the statement of the accused. According to him this is serious illegality which is not curable under section 537, Cr.P.C. In support of his contention he has cited 1985 P Cr. L J 469. The learned State counsel is not in a position to cite any authority to the contrary or otherwise to rebut this argument.
17. Another argument advanced by the defence counsel is that the accused produced '4 witnesses in defence but none was cross-examined by the prosecution. According to the defence counsel the court below should have drawn the presumption against the prosecution in Chas behalf. Again the defence counsel has cited the following authorities in support of his contention:- 1969 SCMR 189 and 1974 P Cr. L J 537
19. After taking into consideration the relevant facts and circumstances of the case, we have reached the conclusion that the prosecution has not established the guilt of the accused satisfactorily. The case of the prosecution is full of doubt which goes to the root of the case.
Accordingly we accept this revision petition and set aside the conviction and sentences of Shabbir Ahmad petitioner and acquit him of the charge. He shall be released forthwith if not required in any other case.