1990 P Cr (PLP)

4. The learned counsel for the petitioner contends that the prosecution had not produced any independent witnesses to prove the offence, and that, in particular, the report of the chemical examiner was not produced, therefore; contends for acquittal of the accused on the ground of the failure of prosecution to prove its case beyond reasonable doubt. In this respect, strength was sought from Muhammad Rashid v. The State 1985 P Cr. L J 2145. Wherein the conviction was set aside as the report of the chemical examiner was not produced nor any independent witness from the public was produced to establish the offence under Article

11. On the other hand, the learned counsel for the State has argued for the dismissal of the revision petition on the ground that the conviction and sentence was unexceptionable.

5. The learned counsel for the State concedes that the report of the chemical examiner had not been produced but points out that P.W.4, Dr. Ashfaq Hussain was an independent witness, and that the defence has not been able to prove any enmity because of which he may have deposed against the petitioner was produced.

6. After having heard the learned counsel for the petitioner and the State and having perused the record minutely, the following aspects of the case need to be highlighted:-- (a) That as the petitioner is a non-Muslim, being a Hindu of Balmeeki caste, he was charged under Article 11(b) of the Prohibition (Enforcement of Hadd) Order, 1979, which is as follows:-- "being a non-Muslim citizen of Pakistan, is guilty of drinking except as a part of a ceremony prescribed by his religion; or" (b) That `drinking' has been defined in Article 6 as follows:- "Whoever, intentionally and without Ikrah or lztirar, takes an intoxicant by any means whatsoever, whether such taking causes intoxication or not, shall be guilty of drinking." (c) Furthermore, according to Article 7, there are two kinds of drinking i.e. drinking liable to Hadd or drinking liable to Tazir. Therefore, the petitioner/accused being a non-Muslim was charged under Article 11, as stated above, being liable to Tazir and not to Hadd. (d) However, under Article 16, the cognizance of the offence charged can only be taken if the offence was committed at a public place. The relevant subsection (b) of the said Article 16 is as follows: -- Article

16. Cognizance of certain offences: The following offences shall be cognizable, namely:-- (a) ............................................................... (b) An offence punishable under Article 4, Article 8 or Article 11, if committed at a public place. (c) That public place has been defined as follows in Article 2(1):-- public place means a street, road, thoroughfare, park, garden or other place to which the public have free access and includes a hotel, restaurant, motel, mess and club, but does not include the residential room of a hotel in the occupation of some person.

7. Therefore, the relevant provisions of the Prohibition (Enforcement of Hadd) Order, 1979, reproduced above, make it abundantly clear that the offence under Article 11 shall be cognizable only if it was committed at a public place, In the present case, according to the F.I.R., the petitioner was taken into custody by the police during the Gusht at 11 p.m. on the day of occurrence on the suspicion that he was intoxicated. Whereafter, he was sent to the Medical Officer, who after examining him, reported that he had taken `Alcohol'. It needs to be taken note of that neither in the F.I.R. nor in the prosecution evidence it has been stated that the petitioner was found drinking intoxicant at a public place. Therefore, it is not the case of the prosecution that the petitioner was taking intoxicant in any manner whatsoever at any public place. Therefore, even if it is accepted that the petitioner was found in an intoxicated state, it does not prove that he had been drinking at a public place. Another aspect of the case is that there is no evidence to the effect that the petitioner's stomach contents were examined to establish that he had been drinking. In this respect it needs to be pointed out that the C P.W.4, Dr. Ashfaq Hussain had admitted during the cross-examination that no sample of the vomit of the accused was taken, nor a chemical report was obtained in respect of the petitioner.

8. In view of what has been stated above, and as the offence charged was cognizable only if it had been committed at a public place and as neither the F.I.R. nor the evidence of the prosecution is to that effect, as stated earlier, therefore, the charge, the trial and the conviction of the petitioner was against the law and without lawful authority and without jurisdiction and hence illegal and manifestly unjust. Therefore, the petitioner's conviction is not sustainable in law, and a grave miscarriage of justice had taken place by the petitioner being charged, tried and convicted under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979. Therefore, this criminal revision petition is hereby allowed and the conviction of the petitioner is set aside and he is honourably acquitted of the offence charged.

9. The aforesaid are the detailed reasons for the short order of even date, whereby the acceptance of the present criminal revision petition was announced and the sentence awarded to the petitioner was set aside and he was acquitted of the offence charged and his forthwith release was ordered, if not required in any other case. N.H.Q./B-161/L Petition accepted.