1986 P Cr (PLP)

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. (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 S C M R 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. S. A. Petition accepted.