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Criminal Appeals Nos. 175-I to 179-I of 1986, decided on 5th October, 1986.

---S. 510--Chemical Examiner's report--Attested copy, admissibility of - Attested copy of Chemical Examiner's report, held, was not admissible in evidence.

Sanaullah v. The State 1984 P Cr. L J 3195 and Gul v. The State P L D 1977 Kar. 1019 ref.

---Arts. 2(J), 2(b) & 16--Criminal Procedure Code (V of 1898), S.155(2)- Motor, vehicle--Not a "public place" as defined by Art. 2(b) of Prohibition Order--Accused found drunk while going in a motor car-- Offence, held, not committed in "public place" within meaning of Art.2(b) of Prohibition Order and as such police was not competent to take cognizance in a non -cognizable offence--Trial, vitiated on account of violation of S.155(2), Cr.P.C., in circumstances--Conviction and sentence set aside.

Hussain Javeri v. The State 1983 P Cr. L J 102; 1968 P Cr. L J 97; 1978 P Cr. L J 812; 1969 P Cr. L J 598; P L D 1963 Lah. 46 and P L D 1964 Kar. 381 ref.

--S. 63--Secondary evidence, admissibility of--Secondary evidence produced to prove handwriting of Investigating Officer without issuing any coercive process against him to secure his attendance in Court - Secondary evidence, held, not admissible, in circumstances.

Fazal Muhammad and others v. The State 1970 S C M R 405 and Muhammad Sharif v. The State 1972 P Cr. L J 1295 ref.

---Art. 11--Prejudice--Prosecution witness not only complainant and eye-witness of occurrence but also Investigating Officer of case Non examination of such material witness without any cogent reason, held, caused prejudice to accused.--[Witness].

Sanaullah v. The State 1984 P Cr. L J 3195 ref.

Malik Rab Nawaz Noon for Appellants.

Muhammad Aslam Uns for the State.

Date of hearing: 5th October, 1986.

--The above five appellants were sent up for trial on charge under Article 11 of Prohibition (Enforcement of Hadd) Order. 1979 (hereinafter referred to as the said Order). They were tried separately by Syed Abdul Khaliq Shah, M.I.C., Rawalpindi and sentenced to suffer R.I. for three years each. They have challenged their convictions and sentences by separate appeals.

2. As all the five cases were instituted on the basis of one F.I.R. recorded by complainant Muhammad Saqlain (not examined) and the evidence was also of common witnesses, hence we have heard all the five appeals together, which will be decided by this judgment.

3. The case of the prosecution is that on 14-10-1982 at 5 a.m. all the five appellants were going in a car when they were held by Muhammad Saqlain, H.C. of Cantt. Police Station, Rawalpindi at Club Chowk. At that time Allah Rakha, F.C., and Rab Nawaz were also present. It is alleged that all the five inmates of the car i.e. the present appellants were found drunk and, therefore, they were dragged out of the car and sent to doctor for medical examination on the same day at about 6-40 a.m.

4. P.W.6 Dr. Abdul Aziz had examined them and found that they were too much talkative, their speech was stammering, their gaits were uneven and the pupils of their eyes were extended. He further found that their was smell of alcohol in their breath. He also took samples of blood and urine from each of the appellants and sent them to the Chemical Examiner for detecting alcohol.

5. In cross-examination the Medical Officer. who was examined as P.W. 6, has stated that some people are talkative by nature. Stammering in speech may also be the result of natural disability or due to some illness. He further stated that if a person is too much upset or worried then his gait might be uneven. This position of gait may also be due to illness or due to remain waking during night. He further stated that if a person takes certain drugs by way of tonic containing alcohol then it may also cause smell of alcohol in breath. Hence, so far as medical evidence is concerned, it is not proved beyond any shadow of doubt that any or all the appellants were drunk.

6. In support of the prosecution case no original chemical report has been produced. Only attested copy has been produced as Exh. P.H. It has been held by this Court in the case of Sanaullah v. The State 1984 P Cr. L J 3195 that attested copy of the chemical report is not admissible in evidence. We are in respectful agreement with the above preposition laid down by Ali Hussain Qazilbash, J., who had delivered the judgment in the above case. In support of the above preposition, the learned counsel for the appellants has also relied upon the case of Gul v. The State P L D 1977 Kar. 1019. in which it has been held that a chemical report not bearing signature of the Chemical Examiner but a copy attested by his successor only produced, cannot be treated as admissible in evidence. In this case if the evidence of the doctor coupled with the attested copy of the chemical report is kept out of consideration in view of the law laid down in the above decisions, with which we are in respectful agreement, then the prosecution case falls to the ground.

7. There are other features in this case which vitiate the trial. The offence is alleged to have been committed in a vehicle, which according to Article 2(j) of the said Order is a place' and not a public place' as defined by Article 2(1). Section 16 lays down that an offence inter alia under Article 11 of the said Order shall be cognizable only if committed in a public place. In the present case, the offence was committed in place' i.e. a vehicle and hence it was not cognizable. Reference has also been made to the case of Hussain Javeri v. The State 1983 P Cr. L J 102. This was a case under Article 4 of the said Order. Police had taken cognizance of the offence in violation of the above Article and sent up the case. The applicant in the above case was convicted by the trial Court but on the revision being filed it was held by Z.C. Valiani, J., in the above case that trial had vitiated on account of violation of section 155(2), Cr.P.C. inasmuch as the police was not competent to take cognizance of non-cognizance offence. In support of the above proposition the learned Judge has relied on 1968 P Cr. L J 97, 1978 P Cr. L J 812, 1969 P Cr. L J 598, P L D 1963 Lah. 46 and P L D 1964 Kar. 381. We are in respectful agreement with the law laid down in the above cases and held that the trial is vitiated on account of material defect in the investigation inasmuch as the police had taken cognizance of the offence which was non-cognizable.

8. Yet another defect in the trial is non-production of complainant Muhammad Saqlain, the Investigating Officer. Secondary evidence was produced to prove handwriting of Muhammad Saqlain by producing PK 5 Malik Ashraf. There is no evidence to show that Muhammad Saqlain was not available or that he had absconded or was a proclaim offender. Muhammad Ashraf has admitted in his evidence that he does not know the whereabouts of Muhammad Saqlain. No coercive process was issued to secure his attendance in the Court. This being the case, the evidence of Muhammad Ashraf was also not admissible as laid down by the Supreme Court in the case of Fazal Muhammad and others v. The State 1970 S C M R 405. In the case of Muhammad Sharif v. The State 1972 P Cr. L J 1295 Mushtaq Hussain Munir, J., held that non-production of the Investigating Officer will cause serious prejudice to the accused, who shall be entitled to acquittal on that account. In support of the above preposition, the learned Judge has also relied on the case of A.K.M. Reza and others v. The State PLD 1958 Dacca 111. Muhammad Saqlain was very important witness in this case as it was he who stopped the car and is alleged to have dragged out the culprits from the car and found them drunk. He, therefore, was not only an Investigating Officer, but was also an eye-witness of the incident Hence, his non-examination without any cogent reason has caused prejudice to the appellants.

9. In view of the above shortcomings and irregularities learned counsel for the State Mr. Muhammad Aslam Uns has also not supported the conviction. Consequently, we allow all the appeals and acquit all the appellants of the offence they have been charged with. They are on bail. Their bail bond stand discharged

S.G.D./323/F Appeals allowed.

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