P L D 1984 Federal Shariat Court 57 (PLP)

This is an appeal under Article 27 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order), against the judgment of Mr. Nasrullah Khan, Magistrate 1st Class, Islamabad convicting Muhammad Hafeez, appellant under Article 11 of the Order and sentencing him to undergo R. I., for a period of three years.

2. In support of its case the prosecution produced 4 witnesses. H. C. Walayat Hussain (P. W.1) recorded the formal first information report (Exh. PA/1). Doctor Khursheed Ahmad khan Afridi (P. W. 2) had medically examined Muhammad Hafeez, appellant on 20‑1‑1982. According to the doctor bad smell of alcohol was coming out of the mouth of the appellant, who was otherwise in his full senses. The doctor took sample of urine and stomach wash and sealed the same into separate parcels and handed them over to the Police. A. S.‑

1. Nazar Hussain Shah (P.W. 3) is the Investigating Officer in this case. According to him at 12 night on 21‑1‑1981, he was on gusht duty alongwith some Constables at Kak bridge. He found the present appellant in the state of intoxication. He found that smell of alcohol was coming from the mouth of the appellant. He prepared Nakshah Makhmoori (Exh. F. C.) and sent the appellant to hospital for his medical examination. On receipt of medical report (Exh. P.B.), he prepared the site plan and recorded the statements of the witnesses under section 161, Cr. P. C. After completion of the investigation he submitted the relevant papers to S. I., Muhammad Afzal (P. W. 4), who verified the investigation and submitted the challan before the Court. The appellant was tried by the Magistrate 1st Class, Islamabad, who convicted and sentenced the appellant as mentioned above.

3. Hence this appeal.

4. I have heard at length the counsel for the parties and have also perused the entire material available on the record.

5. It is contended by the learned defence counsel that the report of the Chemical Examiner (Exh. P. E.), cannot be used by the prosecution against the appellant. According to the report (Exh. P. E.) one sealed bottle containing urine was despatched by the Medical Officer, Central Government Poly Clinic, Islamabad on the 20th January, 1982, and the same was received in the office of the Chemical Examiner, Lahore on 2nd of February, 1982. There are two defects pointed out regarding this report. The record is completely silent as to where this sealed packet remained between 20th of January and 2nd of February, 1982. The prosecution has not produced any witness to show where and by whom this packet was kept in safe custody. The report of the Chemical Examiner shows that it was carried to the office of the Chemical Examiner by Constable Munir Ahmad No.

645. Even this Constable has not been produced by the prosecution. The delay of about 15 days in sending this packet has also not been explained by the prosecution. The other defect) pointed out about this report is that after a period of about 15 days the urine contained in a sealed bottle, bacteria can cause fermentation in a hot country like Pakistan which can give false high alcohol content. Reliance in this behalf is placed upon the following passage from Modi's Medical Jurispru dence and Toxicology, Twenty‑second Edition, page 657 :‑ "However, it is essential that the urine should be collected in a sterile, chemically clean screw capped bottle with a preservative as in warm weather bacteria can cause fermentation when kept at room temperature for some days and give false high alcohol content." According to Taylor's Principle and Practice of Medical Jurisprudence (page 196, Vol. 11) analysis of urine must be completed within 5 days. Confronted with this situation the learned State counsel argues that even if the report of the Chemical Examiner is kept out of the consideration, the conviction of the appellant can still be maintained on the basis of the medico legal report. According to him Doctor. Khursheed Ahmad Khan Afridi (P.W. 2) had medically examined the appellant on the same night and in his opinion bad smell of alcohol was coming from the mouth of the appellant. The doctor's report is contained on the application of the Investigating Officer which reads as under :‑ "Mr. Muhammad Hafeez has been medically examined. He has odour of alcohol (wine) from his mouth but he is completely in his senses. He seems to be taken the alcohol at the time of examination. (Sd.) Dr. Khursheed Ahmad 20‑1‑1982." A perusal of the above so‑called medico‑legal report shows that the doctor has referred only to bad smell which was coming from the mouth of the appellant. As an expert, Medical Officer, he was required to examine the accused more minutely in order to find out the symptoms of alcohol. For example, he should have seen his eyes, gait and staggering etc. Another serious infirmity pointed out in the prosecution case is that so‑called medico legal report has not been put to the accused in his statement recorded under section 342, Cr. P. C. It is well‑settled now that if prosecution relies upon any fact or circumstance against the accused person, the same should be put B to him so that he may explain the same. The learned State counsel, about this aspect of the case, has argued that the case should be remanded to the trial Court with the direction to proceed from the point of error. In this behalf he has referred to two Criminal Appeal No. 156/1 of 1981 and Criminal) Appeal No. 66/1 of 1982.

6. After taking into consideration the relevant facts and circumstances of the case I have reached the conclusion that the prosecution has not established the guilt of Muhammad Hafeez, appellant beyond reasonable doubt 1 feel that it is not a fit case for remand. Accordingly, giving benefit of doubt to the appellant, I accept this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if not required in connection with any other case. M. A. K. Appeal accepted.