Amanullah, petitioner, stood his trial under Article 3/4 of the Prohibition (Enforcement of Hadd)
Ordinance, 1979, in the Court of Hafiz Muhammad Abdul Hayee, Sub-Divisional Magistrate, DJ. Khan.
The learned trial Magistrate convicted the petitioner and sentenced him to rigorous imprisonment for four months and to pay a fine of Rs.300, or in default to undergo further simple imprisonment for fifteen days, vide his judgment and order, dated 9-4-1988. Aggrieved therefrom, he tiled an appeal which came to be decided by Mr. Muhammad Salim Khan Mian Khel, Sessions Judge, D.I. Khan, who vide his order, dated 21-6-1988, while maintaining his conviction, reduced his sentence of four months to two months' R.I. And to pay a fine of Rs.3W, or in default to undergo fifteen days further simple imprisonment. Hence this petition in revision.
2. The case of the prosecution, briefly stated, is that on 25-12-1986, at 16-30 hours, report Exh.P.A.
Was lodged by Imam Muhammad, I.H.C. Then attached to Police Station City, D.I. Khan, alleging therein that in the course of routine Gusht when he alongwith the police party reached near Liaqat Park, a person, on seeing them, started running away. He was given a chase and after overpowering him, a polythelene bottle containing liquor was recovered from his trouser's fold. On inquiry, he disclosed his name as Amanullah, son of Haji Awal Khan, caste Marwat, resident of Mohallah Jogiawala, D.I. Khan City. Two milli-litres of alcohol was separated from the bottle and sealed into a parcel, vide memo. Exh.P.C., which was duly witnessed by Mustafa and Muhammad Jehangir. Foot Constables. It was further alleged in the report that Amanullah aforesaid was reported to have been selling liquor. The accused was arrested and the report was sent to the police station, where a case was registered vide F.I.R. Exh.PA./1 against the petitioner under Articles 3/4 of the Prohibition (Enforcement of Hadd) Ordinance, 1979.
4. At the trial, the prosecution examined Mustafa F.C. And Imam Muhammad, I.H.C. Mustafa P.W.
Testified that he was marginal witness to the recovery memo. Exh.P.C. Whereunder the Investigating Officer had recovered a bottle of polythelene containing alcohol from his trouser's fold; that two milli-litres of alcohol was separated and sealed into a parcel which was sent for chemical analysis. Imam Muhammad P.W. I.H.C. Re-affirmed the prosecution case as contained in the report, Exh.PA./1 and the preparation of the recovery memo. Exh.P.C. And the site plan Exh.P.B.
5. Learned counsel for the petitioner has assailed the order of conviction and sentence passed by the learned trial Magistrate and that of the learned Sessions Judge on three-fold grounds. His contention, firstly, is that the case of prosecution bristled with grave doubts because there being 3/4 persons present at the spot, none of them was associated with the recovery and instead only the police witnesses had testified to the recovery memo. In support of this proposition, the cases of Ghulam Haider Shah v. State PLD 1988 FSC 38 and Mumtaz v. State 1987 P Cr. L J 200 (FSC) were referred. His second contention is that sample of alcohol was despatched to the Chemical Examiner after an inordinate delay which casts grave doubts on the integrity of the prosecution case and, lastly, that the report of the Chemical Examiner cannot be relied upon for conviction, because he has not furnished in his report the opinion and the grounds on which his opinion is based. In support of his last contention, the learned counsel placed reliance on (1) Sultan v. State 1987 SCMR 1177, (2) Mt. Gajrann v. Emperor AIR 1933 All. 394 and (3) Khalid Sultan v. State 1985 P Cr. L J 241.
6. As against this, Mr. Hamesh Gul Khan. Advocate, appearing on behalf of the State, has supported the order of conviction on the ground that the statements of police officials are worthy of credit and, therefore, the conviction and sentence recorded against the petitioner based on the testimony of such police officials is not vitiated.
7. The second contention raised on behalf of the petitioner that recovery of the bottle of alcohol had not been witnessed by the persons from the public is ex facie, act tenable. Mr. Hamesh Gul Khan, Advocate, representing the State has rebutted the said contention of the petitioner's counsel and referred to Shah Nawaz v. State PLD 1986 FSC 243 and Muhammad Shah v. State PLD 1984 SC 278 to argue that a bare reading of section 103, Cr.P.C. Would make it clear that it refers to search of places and not of persons. The latest view which confirms the earlier one in the precedents cited on the proposition by the learned counsel for the petitioner has been expressed by the Shariat Appellate Bench of the Supreme Court in Malik Aman v. State 1986 SCMR 17, wherein their Lordships have been pleased to observe that in searches other than those made in the dwelling houses, section 103 ibid would not be attracted. This contention of the learned counsel for the petitioner is, thus, not tenable. As indicated earlier, the provisions of section 103, Cr.P.C. Are not applicable to personal searches. No enmity whatsoever had been suggested to the recovery witness Mustafa constable and nothing has been brought on the record which may discredit both the police officials. The mere fact that the prosecution witnesses happened to be the police officials is not enough to discredit their testimony.
8. Learned counsel for the petitioner has not been able to show that any delay had occurred in despatching the sample of liquor for chemical analysis and, -in any case, such a delay had not in any way adversely affected the petitioner in his defence. This objection of the learned counsel is also overruled.
9. There is, however, every force in the last contention of the learned counsel for the petitioner that mere tender of the report by the Chemical Examiner is not enough to base conviction thereon. In the first precedent case of Sultan v. State cited at the bar, their Lordships of the Supreme Court were leased to provide rationale behind section 510, Cr.P.C., as it stands amended, and observed as under:-- 'The requirements under the section are i.e. (i) original report shall be put in evidence, (ii) report must be formally tendered, (iii) report must be under the hand of the expert, (v) if the report alone is to be considered sufficient, it should contain all the information which the Officer himself should have been able to furnish if he had been examined as a witness; when the report is meagre and cryptic and incomplete, it is open to the Court to summon and examine the expert; it would be better if in such reports reasons for the opinion expressed, are given.
Setting out of the reasons at length will help to clarify his ideas and it will furnish a valuable guide to the parties and the Court in testing the value to be attached to that opinion. It would also be fairer to the person against whom the opinion is to be used that the reasons for that opinion are definitely expressed. No value can be attached to a bad report which does not state any reasons in support of the conclusion stated therein, nor the test applied for arriving at such conclusion."
In Mt. Gajrani's case, cited at bar, a Division Bench of the Allahabad High Court has been pleased to observe that in India (now Indo-Pakistan), the Chemical Examiner merely tenders a report and does not appear and give evidence. Their Lordships, therefore, maintained that it is extremely desirable that his report should be full and complete and take place of evidence which he would given if he was called to Court as a witness. In the case of Khalid Sultan v. State, referred to above, Ghazanfar Ali Gondal, J., upheld an identical objection on the following obs-rvations:-- "I have seen the Chemical Examiner's report. It is a one-line report which states that the above packet contains `Charas'. The conviction of the petitioner solely depends on the report that the sample taken from the substance recovered from the petitioner was `Charas'. Therefore, the fate of the case of the petitioner hinges onthe proof of the circumstances that the report of the Chemical Examiner was sufficient for the conviction of the petitioner. It is, however, not possible to place absolute reliance on the report of the Chemical Examiner, as, it is too meagre and cryptical a report to allow this Court to place absolute faith on the same. Convicting the petitioner merely on the ground that 5 grams of substance out of the quantity recovered from the petitioner was found by the Chemical Examiner to be `Charas' without any reason having been given by the said Chemical Examiner and without his having given the details of the tests applied by him for coming to that conclusion amounts to delegation of the judicial functions of the Criminal Court to the Chemical Examiner. This cannot be permitted. I am supported in this view of mine by a chain of authorities on the point."
10. It would thus be clear from the judicial pronouncements cited at the bar that if the report of the Chemical Examiner under section 510, Cr.P.C. Is to be considered sufficient, it should contain all the opnions which the Officer would have been able to furnish if he had been examined as a witness when the report is meagre and cryptic and incomplete, it is open to the Court to summon and examine the Expert; it would be better if in such reports reasons for the opinion expressed, are given.
11. The case of the prosecution is that out of the polyethylene bottle, a sample of two milli-litres was taken out and sealed into a separate parcel and then sent to the Chemical Examiner. The report of the Chemical Examiner, Exh.P.M., has been perused. The one line report which states that `the suspected liquor contained in the above-mentioned parcel was subjected to chemical treatment/analysis which revealed that it contained alcohol' is not sufficient to sustain conviction, because the weight to be attached to the report of a Chemical Analyser depends to a considerable extent for the reasons that he comes to a conclusion which he had arrived at. If the Chemical Analyser's report alone is considered to be sufficient it should contain all the opinions which that Officer himself would be able to furnish if he had been examined as a witness.
12. The one-line report of the Chemical Examiner stating that the suspected liquor when subjected to Chemical analysis revealed that it contained alcohol does not satisfy a judicial conscience, and, as such, it is not proved on record that the liquor was alcohol or that the liquor measuring two milli- litres recovered from the petitioner was, in fact, `intoxicating liquor'.
13. For the above reasons, I accept this revision petition, set aside the conviction and sentence of the petitioner and acquit him. He is on bail and IE having been acquitted, his bail bonds stand discharged.
N.H.Q./1310/P