P L D 1988 Peshawar 44 (PLP)

Abdullah Jan Mirza for Petitioner. Rashid-ul-Haq Qazi for the State. Date of hearing: 28thNovember, 1987. Karim Haider (petitioner) was convicted under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979 by the trial Court on 18-1-1987 and sentenced to 6 months R.I. On appeal the learned Additional Sessions Judge-I, Haripur maintained his conviction but reduced the sentence to 3 months' R.I. 2, According to the prosecution on 9-5-1985 at 11-45 p. m. the police found the accused-petitioner rashly driving his Car No.RIJ-111 on the road towards Hassanabdal. The car was chased by the police and made to stop near tube-well check-post. The accused-petitioner was found intoxicated. He was asked to accompany the police constable to Civil Hospital, Haripur for medical examination. The doctor opined that the accused-petitioner had taken intoxicating liquor. The present case was, therefore, registered against him. The samples of urine, blood and stomach-wash of the petitioner were forwarded for opinion to the Chemical Analyst whose report was also in the positive. In the light of the evidence the trial Court held the prosecution case fully established against the accused-petitioner. He was, therefore, convicted and sentenced as stated above.

3. In support of the revision it is contended that the trial of the accused-stood vitiated on account of illegality committed by the Investigating Agency since cognizance had been taken by the police of a non-cognizable offence. It is also contended that another illegality was committed by the trial Court in not certifying the statement of the accused under section 364(2) of Criminal Procedure Code, which was not curable under section 537, thereof. The contentions raised on behalf of the petitioner are not without force. The offence in question is stated to have been commuted by the accused-petitioner in a vehicle, which according to Article 2 (j) of the Prohibition Order is a 'place' but not a 'public place' as defined by Article 2(1) of the Order. The offence under Article 11 of the Order is cognizable only if committed in a 'public place' as provided by section 16 of the Order. The offence having been committed in a vehicle was, therefore, not committed in a 'public place' and thus, was not cognizable by the police. Reliance in this regard is placed on Hussain Javeri v. The State 1983 P Cr, L J 102 wherein cognizance was taken by the police of a non-cognizable offence and the High Court held that the trial stood vitiated on account of violation of section 155(2) of Criminal Procedure Code. Reference can also be made to the case Muhammad Yamin and others v. The State 1987 P Cr. L J 1576 wherein the accused was acquitted on the ground that the trial stood vitiated on account of material defect in the investigation inasmuch as the police had taken cognizance of an offence which was non-cognizable. About the next contention reliance is placed on 1986 P Cr. L J 1730 wherein it was held that the illegality committed by the trial Court in not certifying the statement of the accused as required by section 364(2) of Criminal Procedure Code was not curable under section 537 thereof. In the instant case it is not disputed that the statement of the accused-petitioner was not, certified by the trial Court as required) by section 364(2) of the Criminal Procedure Code. Reference in this regard can also be made to 1985 P C r. L J 469.

4. For the aforesaid reasons this revision is accepted and by setting aside his conviction and sentence, the accused-petitioner is acquitted of the charge. He also stands discharged of the bail bond submitted in this Court. M.Y.H./593/P Petition allowed.