' Qaim son of Daulat Khan, Ramzan son of Karim Bakhsh and Manzoor alias Manna son of Sardar appellants were tried under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to one and a half years' R.I. Each with whipping numbering 15 stripes each by the learned Additional Sessions Judge, Vehari Camp at Mailsi vide judgment, dated 8-6-1983. The appellants have filed this appeal challenging their conviction and sentence.
2. Briefly the facts of the case are that on 14-1-1982 at about 5 p.m. Munawar Ahmad, A.S.I. While present at the canal bridge near Shergarh received an information that the appellants were taking liquor. He alongwith Allah Ditta, Pathana and Shaft P.Ws. Apart from the police constables raided the appellants at Chah Shukarwala, Mauza Shaman and found them drunk. They were medically examined at Civil Hospital, Mailsi and were found to have taken liquor. A case was registered against them vide F.I.R. Exh.P.A./1 on the complaint drawn by the A.S.1. And after completing the investigation, the appellants were challaned to face the trial.
3. The prosecution examined five witnesses to prove its case and tendered in evidence the positive reports of the Chemical Examiner Exhs.P.D., P.F. And P.H. Of the stomach wash taken by Dr. MA. Rauf Bhatti at the time of medical examination of the appellants on 14-1-1982 for detection of alcohol.
4. The appellants denied the allegation and pleaded false implication at the instance of Akram Khan who had evil design for their women-folk. They produced Abdul Malik D.W.1 and Muhammad Shafi D.W.2 in their defence.
5. Learned counsel for the appellants contends that the appellants were taken into custody from a deserted brick-kiln which being not a public place, the police was not supposed to raid the place without warrants. He, however, submitted that the appellants are not previous convicts and further were not involved in any case after the registration of this case. They faced sufficient agony of trial, therefore, a lenient view needs to be taken in the circumstances of the case.
6. The appellants were arrested from a brick-kiln having free approach with no restriction. It is not a house or place of the nature for which search warrants were required. Brick-kiln is a place for manufacturing the bricks with sale and purchase, therefore, it falls within the definition of public place. The objection of the learned counsel regarding the authority of the Police Officer to raid the appellants on receiving information about the commission of a cognizable offence is unfounded.
The appellants were found under the influence of intoxication when medically examined. The Chemical Examiner's report with regard to the contents of the stomach taken by the doctor at the time of medical examination is positive. The medical evidence and the Chemical Examiner's report sufficiently corroborate the P.Ws. Who were not known earlier to the appellants and no malice could be alleged against them. The statement of D.Ws. Is not helpful to the appellants for the reasons that they after three days came to know about the occurrence. There is nothing wrong with the findings arrived at by the trial Court and the conviction of the appellants is not liable to be interfered with. The appeal accordingly fails.
7. Considering the fact that the appellants are first offenders and are not previous convicts, they committed the offence at a deserted place without disturbing the public peace or causing harm to anybody or damage to any property or created any trouble in the area, thus with a view to provide them a chance to reform themselves, they are directed to be released on probation under Probation of Offenders Ordinance, 1960, for the period of one year on the following conditions:-- "The appellants shall enter into a bond in the sum of Rs,10,000 with one surety each in the like amount with an undertaking not to commit any offence and shall abstain from intoxication, keep peace, be of good behaviour and appear before the Court and receive the sentence if called upon during the period."
8. The bonds shall be submitted to the satisfaction of Assistant Commissioner, Vchari, within one month and the release of the appellants shall be subject to their submission of bonds under intimation to this Court. The appellants shall not change their present residence and shall appear before the Probation Officer once in a month who shall keep watch on them and submit quarterly report to the learned Sessions Judge, Vehari. In case the bonds are not submitted within one month or after submission of bonds the appellants shall violate the terms of the bonds, the concession of their release on probation shall be liable to be recalled and bonds shall stand forfeited. The appellants are on bail, they are directed to appear before the Assistant Commissioner, Vehari for the purpose of execution of bonds within the stipulated period failing which they shall be arrested to serve out their remaining period of sentence. Their sentence shall be treated equal to the period of their bonds and at the expiry of sentence, the bonds submitted by I them shall stand discharged. The sentence of whipping awarded to them is, however, set aside.
This appeal is disposed of in the above terms.