1994 P Cr (PLP)

State v. Muhammad Tariq P L D 1982 FSC 169 rel. S. Aijaz Ali Shah for Appellant. Abdul Sattar Chohan for AA.-G. for the State. Date of hearing: 19th August, 1993. Appellant Moula Bux son of Allahdino Mirbahar, was tried by the learned Additional Sessions Judge (Hudood) Sukkur, who by his judgment, dated 13-3-1984 convicted the appellant under section 4 of the Prohibition (Enforcement of Hudood) Order, 1979 and sentenced him to undergo R.I. for one year with five stripes and fine of Rs.500 and in default of payment of fine to undergo R.I. for one month more. The appellant was also convicted under section 11 of the Prohibition Order, 1979 and sentenced to R.I. for two years with five stripes. The appellant has challenged his said conviction and sentence under this appeal. The case of the prosecution is tha4on 12-9-1979 at about 8 p.m. A.S.I. Anwar Hussain Shah lodged report at-the Police Station Sakrand wherein he stated that on the said date he was standing alongwith Constables Mir Muhammad, Muhammad Nawaz and Azizullah, near the gate of police station when they saw one person coming from Lahori Hotel, he appeared to be intoxicated. They followed the said person and apprehended him near the shop of Rasool Bux. The smell of liquor was noticed and said person also had two bottles, which were wrapped in a cloth. The said accused disclosed his name as Moula Bux (present applicant). The said articles were seized by the police and the case was registered against him. The accused was taken to the medical officer for examination and report, the medical officer opined that the accused was under the influence of alcohol. Subsequently, he completed the investigation and challaned the accused. At the trial the appellant denied the charges and claimed to be tried. At the trial the prosecution examined P.W.1 Anwar Hussain who produced the Mashirnama Exh.8 and F.I.R. Exh.9. P.W.2 Azizullah who acted as Mashir and P.W3 Medical Officer Dr. Islam, who produced the. medical certificate Exh.13. P.W.4 Excise Inspector Bashir Ahmed was examined as an expert, he produced a certificate Exh.16. Thereafter, the prosecution side was closed and the statement the appellant was recorded. The appellant denied the prosecution allegations and claimed that the witnesses have deposed against him due to enmity. He wanted to examine defence witness, and D.W.1 Khuda Bux was examined in his defence. Finally after conclusion of the trial, the appellant was convicted and sentenced by the trial Court as already mentioned hereinabove. I have heard the learned counsel for the appellant and so the learned counsel for the State. It was submitted by the learned counsel that the appellant has been wrongly convicted under section 4 as well as 11 of the Prohibition Order, 1979. In this regard, he has referred to the evidence of P.W.4 Excise Inspector Bashir Ahmed to show that he is an expert. This witness has admitted in his cross?examination that he did not examine the sample in the laboratory nor any laboratory is available at Nawab Shah. In this regard the learned counsel for the State agrees that the conviction and sentence of the appellant under section 4 of the Prohibition Order was not sustainable as there was no evidence that the articles recovered from the appellant was liquor. I am in agreement with both the learned counsel . on this issue and accordingly I hold that the conviction and sentence of the appellant under section 4 of the Prohibition Order, 1979 is not sustainable and is accordingly set aside. However, the appellant has also been convicted under section 11 i.e. to say that he was found under the influence of alcohol. In this regard the prosecution has relied on the evidence of P.W3 Medical Officer Dr. Islam. He has mentioned in his evidence that he found smell of alcohol coming from the mouth of the appellant, speech was irrelevant and his gait was staggering. On the basis of finding, he was of the view that the appellant was under the influence of alcohol. However, in his cross-examination, he has admitted that he did not conduct any chemical analysis. It appears that the blood sample of the appellant was also not taken. The two police witnesses namely P.W.1 A.S.I. Anwar Hussain and Constable Azizullah, who have been examined in this case, had only seen the accused person and it was their opinion only that the appellant was under the influence of alcohol. In order to establish the charge, there must be positive evidence of either those witnesses who had actually seen the accused consuming alcohol through mouth. Moreover, the evidence of the Doctor is also not conclusive as it is based on visual observations. It would become conclusive only if it was followed by chemical examination. In the present case no chemical examination has taken place and therefore, while placing reliance on the' case of State v. Muhammad Tariq, reported in P L D 1982 FSC 169, their. Lordships referred to Hedaya by Hamilton page 196 in which it was observed that a smell alone does not suffice for conviction without evidence. Their Lordships further went on to observe that under the Prohibition Order any examination conducted by the medical expert must be given effect to by the Courts, as the medical officer examines the suspect and has an option to either examine the blood or stomach contents, or he may dispense with it if he presumed that the consumption and influence of intoxicant is established from several other circumstances as mentioned in Rule 5 under the Sindh Prohibition Rufes, 1979. It will thus appear that the medical officer in this case has presumed from the general examination of the appellant that he was under the influence of alcohol. This opinion of the medical officer has to be given effect to and, therefore, the fact that the appellant was under the influence of alcohol is established. In the circumstances, the conNnct ion of appellant recorded under section 11 of the Prohibition Order, 1979 is well?founded. Accordingly this appeal is partially accepted to the extent that the conviction and sentence of the appellant under section 4 of the Prohibition Order is hereby set aside while his conviction under section 11 of the Prohibition Order is maintained. However, the appellant shall be given the benefit of section 382-B, Cr.P.C. N.H.Q./M-1870/K????????????????????????????????????????????????????????????????????????????? Order accordingly.