NAZIR AHMAD Versus THE STATE
It is alleged by the prosecution that on 20th February, 1981 at about 10 or 11 p.m. Nazir Ahmad, petitioner, was found drunk near Aik bridge by Ghost party of the police including A.S.I. Abdul Majeed (P.W.1), A.S.1. Muhammad Anwar, (P.W.2) and some foot constables. The petitioner was immediately taken to the Civil Hospital where he was medically examined by doctor Muhammad Younas Sheikh (P.W.3) at 10‑50 p.m. In the opinion of the doctor the petitioner was under alcoholic action. He was challaned under Article 11 of the Prohibition (Enforcement of Hadd) Order 1979 and was tried by Mr. Muhammad Aurangzeb. Assistant Commissioner/ S.D.M. Sialkot, who vide impugned judgment, dated 26th April, 1982 found him guilty under the said Article and sentenced him to undergo R.I. for one year. On appeal the learned Additional Sessions Judge, Sialkot, maintained the conviction and sentence of the petitioner.
2. Hence this revision petition.
3. In support of its case, the prosecution produced 3 witnesses. A.S.I. Abdul Majid (P.W.1) was member of police party which was patrolling on 20th February, 1981 at about 10/11 p.m. He has stated that the police party found a person drunk, whose name subsequently was revealed as Nazir Ahmad. He was sent to the Civil Hospital for medical examination. The doctor gave the opinion that Nazir Ahmad petitioner was under alcoholic action. This police officer sent a complaint, Exh . P.A. to the Police Station City for registration of the case where formal F.I.R. Exh.P.A./1 was registered. He prepared the site plan Exh.P.B. and recorded the statements of the witnesses under section 161, Cr.P.C. He arrested the accused and submitted the challan after completion of investigation. In cross‑examination he has admitted that near Pull Aik, there were several persons present when the accused was making noise. He has further admitted that the doctor did not send any parcel of vomitting of the accused. A.S.I. Muhammad Anwar (P.W.2) was also accompanying the Ghost party. He has supported A.S.I. Abdul Majid (P.W.1), how the accused was making noise near Pull Aik, and was sent to the Civil Hospital for medical examination. In cross‑examination he has admitted that he did not go to the hospital with the accused and‑no witness from the public was taken in this case. Doctor Muhammad Younas Sheikh, (P.W.3) who medically examined Nazir Ahmad, petitioner, and made the following observation:‑--
Bad smell was coming from his mouth. Pupils were dilated and eyes were congested. Speech was sluggish and gait was abnormal. He was not well‑oriented in the surroundings."
In the opinion of the doctor the petitioner was under alcoholic action. In cross‑examination however he admitted that all these symptoms could occur with the over dozage of syrup Recresal‑A (alcoholic) and this medicine is easily available in the market and the doctors prescribe it very frankly, because it is a tonic.
4. Nazir Ahmad, accused in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations. When asked whether he was produced before the doctor for medical examination and whether the doctor gave the opinion that he had taken alcoholic at that time, he stated as under:‑
When asked whether he wanted to say anything else and why this case was made against him, he stated as under:‑
The accused produced two witnesses in defence. Noor Muhammad. (D.W.1) has stated that the accused bears a good moral character and he does not take liquor. He had a quarrel with the police at Pull Aik and, therefore, was involved in the present case. Sher Muhammad, (D.W.2) has made a similar statement like that of Noor Muhammad (D.W.1). The defence produced prescription, Exh.D.1 in defence and closed its evidence.
5. I have given my anxious consideration to the defence plea buts find myself unable to accept it. The defence has not indicated the nature of quarrel of the petitioner with the police party at Pull Aik at the relevant time. The defence has not brought any material on the record to show any enmity or motive on the part of the police to falsely implicate in this case. Even if there was some sort of quarrel between him and the police, the doctor Muhammad Younas Sheikh, who is Medical Officer in Allama Iqbal Memorial Hospital, Sialkot could not play in the hands of the petty police officer to issue a false certificate against the petitioner. Moreover, no such question was put to the doctor in cross‑examination that he issued a false certificate at the instance of the police. The two witnesses produced by the defence belong to the village which is at a distance of about 11 miles away from the place of occurrence. They have not deposed anything about the present occurrence because they could not be expected to be there at such late hours of the night. The defence has also not indicated the nature of party faction in the Mohallah for which he was involved in the present case. As regards the plea that the petitioner had taken some medicine, he has placed on record, prescription Exh.D.1, issued by doctor Captain Muhammad Aslam Butt, who is M.O. in Allama Iqbal Memorial Hospital, Sialkot. It is a printed form and the particulars of the petitioner are filled in it. The date given on this prescription is 26‑8‑1982 and the petitioner was advised rest for a period of 4 days w.e.f 26‑8‑1982 to 29‑8‑1982 which was absolutely necessary for the restoration of the health and treatment. The disease shown in this prescription is 'left reval cibi.' A mere perusal of this prescription shows that this relates to a period which is not at all relevant for the present case. As mentioned above, the occurrence took place on 20th February, 1981 at 10/11 p.m. while the date shown on the prescription is 26th August, 1982 and the petitioner has been advised rest for 4 days w.e.f. 26th August, 1982 to 29th August, 1982. Moreover, no medicine has been prescribed in the said prescription. In the absence of the exact nature of the medicine, it is difficult to ascertain whether such medicine could create the alcoholic action as opined by the doctor. In the circumstances of the case, I find that the defence plea is absurd on the face of it and I feel no hesitation to reject the same.
6. I have heard at length the learned counsel for the parties and have also perused the entire material available on the record.
7. It is vehemently contended by Mr. Arif Iqbal Hussain Bhatti, the learned counsel for the petitioner that medical examination of the petitioner could not be earlier than his actual arrest by the police. This contention is based upon the time of the medical examination of the petitioner and the lodging of the report with the police. In F.I.R. date and time of occurrence is shown as under:‑--
A.S.I., Abdul Majid (P.W.1) in his statement before the trial Court has stated as under:‑
Similarly A.S.I. Muhammad Anwar (P.W.2) in his statement has described the time in. the following words:‑
According to the learned defence counsel the above time should be read as 10 minutes past 11 p.m. and the medical examination of the petitioner admittedly having conducted at 10‑50 p.m. could not be earlier than the arrest of the petitioner: On the other hand, the stand taken up by Mr. Najumuzzaman, the learned counsel for the State is that the time of occurrence is 10 or 11 p.m. According to him the indication of oblique (/) clearly shows that it could not be 10 minutes past 11 p.m. He further points out that the word used by both the police officers A.S.I. Abdul Majeed and A.S.I. Muhammad Anwar, (P.W.2) has made this fact absolutely clear. If the time had been 10 minutes past 11 as suggested by the defence then the word could not be used by the witnesses. After perusal of the relevant material I agree with the learned State counsel that the time of occurrence mentioned in the F.I.R. as given by the two police officers clearly indicates as 10 or 11 p.m. and not 10 minutes past 11 p.m.
8. On merits it is contended by the defence counsel that the prosecution produced no witness who saw the petitioner actually taking or drinking liquor and, therefore, his conviction is not maintainable. He has tried to rely upon certain observations made by the learned Chief Justice in State v. Muhammad Tariq's case reported in P L D 1982 F S C 169. The learned counsel has not properly appreciated the observations made by the Chief Justice in the above noted case similarly the petitioner cannot get any benefit from the judgment of the Supreme Court in Muhammad Ilyas's case P L D 1983 S C 66. The Supreme Court has only granted leave in that case and it cannot be anticipated, what view the Supreme Court would ultimately take on this issue. According to the learned counsel for the petitioner the opinion of the doctor Muhammad Younas Sheikh, (P.W.3) does not establish the offence of drinking. The doctor on medical examination of the petitioner found as under:‑
"Bad smell was coming from his month. Pupils were dilated and eyes were congested. Speech was sluggish and gait was abnormal. He was not well‑orientated in the surroundings."
On the basis of above symptoms the doctor gave the opinion that the petitioner was under alcoholic action. According to the learned State counsel the symptoms mentioned above, by the doctor establish beyond any doubt that the petitioner was drunk at the relevant time. He relies upon the following passage from Medical Jurisprudence and Toxicology by Modi (10th Edition):‑-- "in order to ascertain whether a particular individual is drunk or not a medical practitioner should bear the following points in mind:‑
(1) The quantity taken is no guide.
(2) An aggressive odour of alcohol in the breath, unsteady gait, vacant look, dry and sticky lips, congested eyes, sluggish and dilated pupils, unsteady and thick voice, talks at random and want of perception of the passage of time are the usual signs of drunkenness."
It is further mentioned in Modi as under:‑
"III. That in the absence of any pathological conditions a person is definitely under the influence of alcohol if there is a smell of alcoholic liquor in the breath and/or in the vomitted matter (if any) provided there is a combination of all or most of the following groups of signs or symptoms: ‑
(i) A dry and furred tongue, or conversely excessive salivation.
(ii) Irregularities in behaviour, such as insolence, abusive language, loquacity, excitement or sullenness, and disorder of dress.
(iii) Suffusion of the conjunctivae and reaction of the pupils. The pupils may vary from a state of extreme dilatation to extreme contraction and may be equal or unequal.
(iv) Loss or confusion of memory, particularly as regards recent events and appreciation of time.
(v) Hesitancy and thickness in speech and impaired articulation.
(vi) Tremors and errors of co‑ordination and orientation."
Applying the above test the symptoms found by Dr. Muhammad Youns Sheikh in the instant case, it can reasonably be inferred that Nazir Ahmad, petitioner at the relevant time was under the influence of alcohol and the opinion given by the doctor after medical examination, is correct.
9. The learned defence counsel has also contended that it was necessary for doctor Muhammad Younas Sheikh, (P.W.) to take urination and stomach wash of the petitioner for analysis by the Chemical Examiner. This Court has already held in State v. Muhammad Tariq's case reported in P L D 1982 F S C 169 that rule 5 of Prohibition (Enforcement of Hadd) Liquor Rules 1980 allows a medical practitioner several alternative modes of proof of presence of alcohol in an accused. This rule was held to be binding on the Courts and any examination conducted by the Medical Expert according to it must be given effect to by the Courts. The relevant observations of this Court are reproduced below:‑--
"According to Modi such examination can be conducted in respect of Vomit, Blood or Urine. But rule 5 of N.‑W.F.P. Prohibition (Enforcement of Hadd) Liquor Rules, 1980, allows a medical practitioner several alternative modes of proof of presence of alcohol in an accused. Thus he may simply examine the breath of the accused. He may also examine him in respect of presence of alcohol in his blood stream or stomach. But if he can presume about the taking or influence of the intoxicant from any other symptom such as hangover effects, nausea headache, gastritis thirst, generalized residual malaise, physical or mental incompetence or overdrowsiness, Euphoria, Dyaphoria or other after effects of taking an intoxicant he may dispense with the aforesaid examination. The relevant portion is reproduced below:‑-
'The Medical Practitioner for the purpose of Article 12 of the Order shall be the nearest authorised Medical Officer easily accessible according to the circumstances of the case. He may examine the person referred to him under Article 12(1) of the Order with respect to the presence of an intoxicant in his breath or blood stream or stomach. If the authorised medical officer can presume the taking or influence of the intoxicant from any other symptom such as hangover effects, nausea, headache, gastritis, thirst generalised residual malaise, physical or mental incompetence or overdrowsiness, Euphoria, Dyaphoria or other after effects of taking an intoxicant he may dispense with the aforesaid examination'."
This rule is binding on the Courts and any examination conducted by the Medical Expert according to it must be given effect to by the Courts.".
10. The last contention raised on behalf of the petitioner is that the sentence awarded to the petitioner is excessive. Reliance in this behalf is placed upon Shah Muhammad's case reported in P L D 1982 F S C 239. According to the learned defence counsel this was a case decided by Full Bench of three Judges including the present Chief Justice and, therefore, is binding upon me sitting as a single Bench. In that case in similar circumstances the sentence was reduced to the period already undergone which was estimated as about three months. The learned State counsel after seeing the above mentioned earlier decision of this Court, does not oppose the contention of the defence counsel. According to the defence counsel the petitioner is a first offender and not habitual drunker and is the only bread‑winner in the family. He also produced two witnesses in defence about his good conduct and character.
11. For the foregoing reasons while maintaining the conviction of Nazir Ahmad, petitioner, following the above mentioned decision of the Full Bench, I reduce the sentence of imprisonment to the period already undergone by him. He is already on bail and his bail bond shall stand discharged.
H. A. K. Revision dismissed, sentence reduced.