This criminal appeal has been filed against the judgment dated 19-11-1985 made by Additional Sessions Judge-II, Rahimyar Khan whereby the appellant was convicted and sentenced under section 11 of the Prohibition (Enforcement of Hadd) Order, 1979 to undergo one year R.I. With ten stripes.
2. Briefly, the prosecution case is that P.W.3 Muhammad Sharif on 21-1-1984 at Mohallah Rahimabad at 3-45 p.m. Drafted complaint Exh.PA that he was on patrol duty in the area of Bagho Bahar Road alongwith few police officials when he received an information from Muhammad Anwar Beg P.W.
Not. Produced) and Abdul Ghafoor P.W.5 that the appellant while under intoxication was raising noise and was also abusing the passersby. P.W.3 raided and arrested the appellant and after drafting complaint Exh.PA, sent the same to the police station and P.W.1, Ihsan Ahmad, H.C. Had drafted formal F.I.R. Exh.PA/1 on 21-1-1984 at about 4-45 p.m.
3. The appellant was challaned and was sent up for trial before the learned Additional Sessions Judge who had framed charge under section 8 of the Prohibition (Enforcement of Hadd) Order, 1979 against the appellant to which he denied and claimed trial.
4. The prosecution examined five witnesses in all to substantiate its case. P.W.1, Ihsan Ahmad H.C.
Had drafted formal F.I.R. Exh.PA/1. Muhammad Sharif P.W.3, F.C. Was present alongwith P.W.3 on patrol duty and in his presence the information was conveyed by P.W.5, Abdul Ghafoor and Anwar Beg (given-up) that the appellant was sitting on a cot in front of house of Muhammad- Aslam Mughal and was drinking. A raid was conducted and the appellant was found drunkard and was abusing who was apprehended by P.W.3 who had sent the appellant alongwith P. W.2 to the hospital for medical examination. P.W.3, Muhammad Sharif; retired S.I. Is the complainant who warranted the facts mentioned in Exh.PA. He after completion of investigation had handed over the challan to the S.H.O. Who completed the same and sent up for trial.
5. P.W.4, Dr. Shanfsul-Zaman Somoro, on 21-1-1984 at 4-30 p.m. Medically examined the appellant and had found that the appellant had taken alcohol and final result would be declared on receipt of the report from the Chemical Examiner. (No report of the Chemical Examiner was exhibited).
P.W.5, Abdul Ghafoor, who was alleged to have conveyed information to P.W.3 that he had seen the appellant drinking at a public place had not supported the prosecution version.
6. The appellant when examined under section 342, Cr.P.C. Denied the prosecution case against him. The appellant neither made statement on oath as envisaged under section 340(2), Cr.P.C. Nor produced any evidence in defence.
7. I have heard the learned counsel for the appellant as well as learned counsel for the State and perused the record.
8. The only public witness, namely Abdul Ghafoor P.W.5, produced by the prosecution has not supported the prosecution version who was declares hostile by the Court. It has been brought on record by the prosecution that the appellant was drinking at a public place. Dr. Shams-ul-Zaman, P.W.4 who had medically examined the appellant had opined vide M.L.R. Exh.PC that final result whether the appellant had taken alcohol or not was to be given on the receipt of the report from the Chemical Examiner.
9. It is pertinent to mention here that no report of the Chemical Examiner was either produced or exhibited before the trial Court although P.W.4 has stated that he has formed his opinion on the basis of the report of the Chemical Examiner. It is pity that neither the learned trial Judge nor the prosecutor appearing in the Court had taken pains for the location of the report of the Chemical Examiner and the same is not warrantee under the law. No independent witness from the public was produced by the prosecution to prove that the appellant had drunk. The report of the Chemical Examiner was not exhibited and the report of the Doctor P.W.4 was not conclusive.
10. Pursuant to the above discussion, I have no option but to acquit the appellant. The prosecution had failed to establish its case beyond doubt against the appellant and giving him benefit of doubt. I acquit him of the charge. The appellant is present in Court on bail and his bail bonds are discharged.
H.B.T./S-420/LAcquittal ordered.