P L D 1952 Lahore 60 (PLP)

SHABIR AHMAD, J.‑Ghulam Muhammad Laundkhore, an externed resident of N.‑W. F. P., was tried at Lahore under section 34 of the Police Act by Mr. M. G. Cheema, Magis trate 1st Class with powers under section 30 of the Code of Criminal Procedure, and having been found guilty of that offence, was sentenced to a fine of Rs. 50, in default of payment of which he was to suffer eight days' simple imprisonment. As the sentence imposed was not appealable because of section 413 of the Code of Criminal Procedure, the convicted person approached the Sessions Judge, Lahore, to have the case re ported to this Court, but that request having been refused, he has presented a revision petition to this Court against his con viction. Along with the petition for revision he presented an application for expunction of certain remarks from the judg ment of the trial Magistrate. This order will dispose of the above two matters. The prosecution case was that on the 22nd of February 1950 at about 10 p.m. a number of excise officers went to Hira Mandi, Lahore, where prostitutes and singing and danc ing girls mostly reside, with the object of arresting people who were found to have taken alcoholic drinks without being in possession of permits required under the law in force in the Punjab. The party, as was usual and required by law, went to Tibbi Police Station to take with them some police officers. 'The S. H. O. Tibbi Police Station deputed two A. S. Is., Ghulam Muhammad and Ghulam Mohy‑ud‑Din to accompany the excise officers. The excise officers accompanied by the two A. S. Is., mentioned above, had not gone very far when Ghulam Nabi, a private person, and another Ghulam Muhammad A. S. I. joined them. The latter Ghulam Muhammad is known as Ghulam Muhammad No. 1, and he will, therefore, be described like that in the sequel. The party consisting of the excise officers, three Assistant Sub‑Inspec tors of Police and Ghulam Nabi, went to the house of Hamidi, a dancing girl, where they found that a number of persons in cluding the petitioner had taken alcoholic drinks. All of these persons, however, were found in possession of valid permits and no action was, therefore, taken against them. After com ing out of the house of Hamidi, the party divided itself into two parts one of which went to Chet Ram Road and the other to Kucha Shahbaz. The former party discovered no one who had contravened the order of the Provincial Government re quiring a permit for taking alcoholic drinks, but the latter arrested six persons one of whom was Abdul Karim, a friend of the petitioner. The six arrested persons were being taken to the Police Station and when they and their captors reached Novelty Cinema, which is situated in Hira Mandi, the peti tioner met them. He said that Abdul Karim had been arrested illegally and should be left off. As Abdul Karim was not let off the petitioner got excited and started saying that the Central and the Provincial Ministers and other high officials took liquor without any action being taken against them but other people were arrested if they did that. A large number of persons gathered who according to the prosecution got annoyed because of what the petitioner said, and it was after that the petitioner was taken into custody under section' 34 of the Police Act for being drunk and riotous. The case being a summons case, the petitioner was question ed under section 242 of the Code of Criminal Procedure at the commencement of his trial. In the statement he made he denied the allegations of the prosecution read out to him and added that a false case had been started against him by Fazal Ahmad, Excise Sub‑Inspector, at the instance of certain public servants of the Frontier Government. He proceeded to say that Mr. Abdul Qayyum Khan, the Chief Minister of the North Frontier Province was at the bottom of the case because the object was to ruin the political career of the petitioner. It was alleged that a promise of promotion by his appointment under the Central Government had been given to Fazal Ahmad if he succeeded in having the petitioner involved in a criminal case at Lahore, A number of defence witnesses were produced but their evidence did not establish the case set up by the petitioner. The learned counsel for the petitioner urged that the case against the petitioner was the outcome of the machinations of the people mentioned in the statement of the petitioner under section 242, of the Code of Criminal Procedure and that, in fact, the petitioner was not found in the state alleged made by the prosecution. When asked to point to any evidence which might justify the conclusion that the fantastic statement by the petitioner was correct, the learned counsel had to admit that beyond some suggestions made to some of the prosecution witnesses which were not admitted, he could point to no other material on the record in support of his argument. I have considered the question very carefully and have no hesitation in holding that the assertions of the petitioner were not correct. It appears to me very unlikely that, assuming that he wanted to have the petitioner involved in criminal case, Mr. Abdul Qayyum Khan, the Chief Minister of the North West Frontier Province could wield so much influence with the public servants in the Punjab as to be able to induce them to involve any person falsely in a criminal case. In his statement the petitioner only mentioned Fazal Ahmad, Excise Sub‑Inspector, as being in League with some public servants of the North West Frontier Province who, under the instruc tions of Mr. Abdul Qayyum Khan, wanted to ruin the political career of the petitioner. But if there were any vestige of truth in that statement, I fail to see how a number of other persons who had appeared as prosecution witnesses, had consented to give false evidence against the petitioner. I might mention that after he had been arrested the petitioner was taken for medical examination to the Civil Hospital, Lahore, where he was examined by Dr. Capt. Muhammad Sharif, Sub -Assistant Surgeon, Civil Dispensary, Lahore, at about 12‑38 at night. The doctor found that there was smell of alcohol in the breath of the petitioner and that his eyes were slightly congested. It was the opinion of the doctor that at the time when he examined the petitioner the latter was slightly under the effect of alcohol. There is absolutely nothing on the record to make one doubt the statement of the doctor and in view of that statement coupled with those of Fazal Ahmad, Excise Sub‑Inspector (P. W. 2), Hakim Ghulam Nabi (P. W. 3), Chaudhri Ghulam Muhammad No. 1, A. S. I. (P. W. 4), Salah‑ud‑Din (P. W. 5) and Muhammad Amin (P. W. 6), I have no hesitation in holding that at the time when he was arrested by the police the petitioner had had some alcoholic drink. Some of the many defence witnesses produced by the petitioner tried to show that the assertions of the prosecution witnesses mentioned above against the petitioner were incorrect, but I agree with the finding given by the trial Magistrate that those defence witnesses were not reliable. The learned counsel for the petitioner contended that the fact that the prosecution considered it necessity to produce such a large number of witnesses which necessitated a protracted trial and consequent which tended to show that the case had some ulterior political motive behind it, but this contention is entirely without force. It was at the request of .the petitioner that the trial Magistrate did not try the case summarily as he would ordinarily have done, and if there has been any, publicity of the case against him, the petitioner must thank himself because I am of the view that by allowing the case to be tried summarily the petitioner could have avoided the case receiving any publicity. Having found that at the time the petitioner was arrested he had taken some alcoholic drink, I proceed to con sider whether or not. an offence under section 34 of the Police Act had been proved against the petitioner: The relevant apart of the section reads as follows:‑ "Any person who, on any road or in any open place or street or thoroughfare within the limits of any town to which this section shall be specially extended by the Provincial Government, commits any of the following offences, to the obstruction inconvenience, annoyance, risk, danger or damage of the residents or passengers, shall on conviction before a Magistrate be liable to a fine not exceeding fifty rupees or to imprisonment with or without hard labour not exceeding eight days; and it shall be lawful for any police officer to take into custody, without a warrant, any person who within his view commits any of such offences; namely, * * * * * * * Sixth.‑Any person who is found drunk or riotous or who is incapable of taking care of himself". "The trial Magistrate has found that clause Sixth of section 34 ‑of the Police Act applied to the case because the petitioner had been proved to be drunk and riotous and one of the ques tions for decision is whether or not this finding is correct. Clause (6) of section 34 of the Police Act, 1861 applies to three kinds of persons; firstly, to those who are drunk, secondly, to those who are riotous, and thirdly, to those who are incapable of taking care of themselves. The trial Magis trate appears to have been of the view that as the prosecution has succeeded in proving that the petitioner had taken liquor before he came to the, scene of his arrest, he was "drunk" within the ambit of section 34, but with this interpretation of law I do not agree. The Legislature has used the expression, "is drunk" and no "has drunk", and I have no hesitation in holding that even if the other ingredients of the section were established, the mere fact that a person can be proved to have taken liquor is not sufficient to bring his case within the four corners of section 34 of the Police Act. In my opinion the clause under consideration applies to those persons whose senses are completely under the effect of the intoxicant they' had taken, be the. intoxicant liquid or not. If, for instance, a person had eaten opium or had smoked chandu or charas, his case could fall under section 34 of the Police Act, if it could be proved not only that he had taken the intoxicant but also that he was under its effect to the extent indicated above.) If the intoxication has gone so far that the person under its influence cannot even walk properly, he would be not only drunk but also incapable of taking care of himself, and his case will satisfy two of the three alternative ingredients of who, as is well‑known, had not the antipathy to intoxicants which Islam inculcates, and it is inconceivable that they brought on the statute book a provision of law which would allow a police officer to arrest in certain circumstances any one who could be proved to have taken some liquor, which had not affected him in any manner beyond making his breath smell of alcohol. The learned Assistant Advocate‑General urged that as the petitioner is proved to, have made uncalled for remarks against highly placed public servants including the Ministers, it must be presumed that the petitioner was drunk at the time, but this contention is without force. No doubt it is established that in his efforts to have his fried released, the petitioner indulged in remarks which had absolutely no bearing, but that conduct can hardly be held to be sufficient proof of the petitioner being "drunk" at that time. It cannot be over looked that the petitioner was interested in Abdul Karim, one of the six persons arrested by the police for having drunk liquor when they were not in possession of permits, and the uncalled for, irrelevant and the objectionable remarks were evidently made to show that what the petitioner considered to be an injustice, was being perpetrated. If the petitioner had interfered gratuitously, I would have been more inclined to accept the argument of the Assistant Advocate‑General, but in the circumstances of the case, some of which have been detailed above, it is difficult to hold that the petitioner's uncalled for attacks tin highly placed public servants were, coupled with the fact that he had, shortly before making them, drunk liquor of unascertained quantity, sufficient proof of his being "drunk" within the ambit of clause (6) of section 34 of the Police Act. The trial Magistrate has held that as the petitioner was using untenable arguments for the release of his friend, lie was riotous, but this view, in my opinion, is entirely unjustifi ed. The term "riotous" like the word "drunk" has not been defined in the Police Act or the General Clauses Act, and‑it was contended by the learned counsel for the petitioner that guidance should be' sought for the interpretation of the term from the definition of an almost similar expression occurring in the Pakistan Penal Code. The learned counsel argued that the expression "riotous" connoted use of force, and cited a decision of this Court in 34 I. C. 993, in which the conviction of some persons under section 34 clause (6) of the Police Act was upheld on the finding that they had fought with each other in a public street. No doubt the case cited by the learned counsel related to persons who had used force, but it was not laid down by the learned judge, who decided the case, that it was only if he used force that a person could be deemed to be riotous within the meaning of clause (6) of section 34 of the Police Act. The Penal Code became law on the 6th October 1860 and the Police Act about five months later on the 22nd of March 1861, but I see no ground for holding that the expression "riotous" in. the Police Act vas intended to have a meaning similar to the not dissimilar word "rioting" defined in section 146 of the Penal Code, an it appears to me that it was intended to have no other but‑ its ordinary meaning. The ordinary dictionary meaning of the word riotous conveys the sense of a person who is guilty of wanton or disorderly behaviour, disorder, uproar or tumult, and what is to be seen is whether or not the conduct of the petitioner at the relevant time falls within the above defini tion. The learned Assistant Advocate‑General contended that as there was evidence that the petitioner indulged in uncalled for remarks in a loud voice, he was guilty of wanton and disorderly behaviour and also of causing disorder, uproar and tumult, but this argument overlooks a very relevant point, namely, the position, of the petitioner. It cannot be doubted that because of his externment from his native land, the petitioner is sore against the people in power, and as a disgruntled political opponent of the people in power, he would, in an attempt to create the impression that things were in a bad state, indulge in derogatory remarks against those in authority, whenever he got a chance to do so, be the chance opportune or otherwise. In this view of the matter I do not consider the fact that the tongue of the petitioner was, to some extent, unbridled sufficient proof of his having been riotous within clause (6) of section 34 of the Police Act, especially as there is no evidence that the petitioner was raising so much noise as to be reasonably held to be uproarious or tumultuous. There is another aspect of the matter which may be men tioned. It is essential for the applicability of section 34 of the Police Act that the act of the accused person, in addition to falling within one of the eight clauses of the section, must` have caused obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers. The trial Magistrate held that the petitioner had caused annoyance to the persons who assembled, but did not state on what evidence he arrived at this conclusion. The learned Assistant Advo cate‑General pointed to the depositions of Salah‑ud‑Din (P. W. 5) and Muhammad Amin (P. W. 6) to show that the people collected there were annoyed. P. W. 5 stated that the persons collected there shouted while P. W. 6 said that they were shouting "down with Laundkhore". The two wit nesses were not originally cited in the calendar of witnesses submitted by the. police and therefore, the learned counsel for the petitioner urged that they were unreliable witnesses, but as the former is an Assistant Station Master and the latter a student of the Dyal Singh College, I do not see any justification for holding that they had made these statements at the bidding of the police. It appears to me, however, that shouting of slogans by people collected at a spot can hardly, be conclusive proof of their annoyance. The place where the petitioner was arrested is, as deposed to by P. W. 5, by no means a respectable locality of the town, and it would, in my view, as a rule require a lot more than the behaviour ascribed to the petitioner to annoy residents of the locality or those who used it as passers‑by at the time of the night at which the present incident took place. It appears to me, therefore, that the prosecution had not succeeded in proving that the act of the petitioner in arguing with the police in a loud voice and making uncalled for remarks about highly placed public servants of Pakistan had resulted in annoyance to the residents of the locality or the passengers. My findings being that though he had drunk some alcoholic drink, the petitioner was not drunk that though he argued with the police in a loud vice, he was not riotous, and that the rewas no proof of any annoyance having been caused to the residents or passengers of the locality where the incident took place, I would hold that the petitioner had not been proved guilty of the offence of which he has been convicted. This leaves the petition for expunction of passages from the judgment of the trial Magistrate to be dealt with. Of the eight passages objected to by the petitioner, seven showed his connection with singing girls and the eighth was in the following terms :‑ `The accused may be a big land‑holder and a rich or a wealthy man too, but so far as his respectability is concerned, it is open to question. He is living in a locality where no respectable person can afford to live. He' is residing and messing with a prostitute. He holds the permit to consume liquor. All these circumstances go to show that he has got no respect for respectability. I doubt very much if a person of the above qualification could be a popular leader with the masses of a province with that overwhelming majority of Mussalmans. Anyhow we are not concerned with that aspect of the case much". The learned counsel for the petitioner urged that the name of Mst. Hamidi and that of her sister Mst. Pukhraj alias Kaji, who is stated to be either married to or the keep of the peti tioner, had purposely been mentioned in the judgment of the trial Magistrate with a view to degrading the petitioner in the public eye. After going through the judgment of the Magistrate and the evidence on the record I have arrived at the conclusion that mention of the names of Mst. Hamidi and Mst. Kaji in the judgment of the trial Magistrate was by no means unjustified, though the number of times the name of Mst. Hamidi was mentioned could possibly have been reduced. It appears to me, however, that merely to repel an argument, which need not have been considered at all, the eighth objected passage, which I have quoted above, need not have been written, as there is no evidence on the record to substantiate at least some of the remarks made in the passage. As, however, I am acquitting the petitioner and the judgment of the trial Magistrate is automatically superseded, I need pass no order on the petition for the expunction of the remarks. The result, therefore, is that the judgment of the trial Magistrate convicting the petitioner is set aside and the petitioner being acquitted, it is ordered that the fine, if paid, shall be refunded. A. H. Petition accepted.