SHAHNAWAZ TARIQ, J.---This common order will dispose of three Criminal Misc. Applications bearing Nos.129 of 2015, 130 of 2015 and 131 of 2015 filed by the applicants, who have agitated the orders dated 17.3.2015 passed by the Court of learned II-Additional Sessions Judge, Sukkur, whereby applications filed by the applicants/accused for obtaining second opinion were dismissed and orders dated 27.01.2015, passed by the learned I-Judicial Magistrate, Rohri were maintained.
2. Learned counsel for applicants contended that Excise Police has lodged FIRs with mala-fide intention while the applicants and owner of the factories were transporting Ethyl Acetate which is chemical industrial insolvent and being used in manufacturing of different items as such the Complainant has wrongly registered the cases treating the subject Chemical as katcha wine; that complainant has obtained Chemical report from Chemical Laboratory, Rohri, where the required equipments are not available to testify the recovered Chemicals and said reports are neither proper nor correct, therefore, in the prime interest of justice, second opinion may be called from Pakistan Council of Scientific and Industrial Research (P.C.S.I.R.), Karachi or Islamabad on the expenses of applicants as latest equipments are available in said laboratories; that Government of Punjab has appointed an Excise Inspector at the factory who testifies the invoices/relevant documents at the time of delivery of products; that Collector/Director, Excise & Taxation, Lahore has issued permits in favour of M/S Bin Arif Industries(PVT.) Limited and M/S Globle Inks and Chemicals (PVT.) Limited.
3. While controverting the contention raised by learned counsel for applicants, learned APG vehemently contended that applicants have moved application for obtaining second opinion only to damage the case of prosecution while the recovered Chemical were examined by Sindh Chemico Laboratory at Rohri and as per Chemical Examiner's report the recovered substance is containing Ethyl Alcohol; that a huge quantity of liquor has been recovered from the possession of applicants which they were transporting to Karachi.
4. Mr. Mohammad Urs Sial, Incharge Chemical Examiner, Sindh Chemico Laboratory, Rohri, on the query regarding the availability of equipments to examine the recovered Chemical/substance, submitted that Rohri Laboratory has been examining the recovered Chemicals since 20 years.
However, the latest equipments are not available in laboratory and they are examining received substances manually.
5. I have heard learned counsel for the parties and perused the material available on record which emanate that Excise Inspector Najeeb ur Rehman intercepted Truck Trailor No.TLL-097, Truck Trailor No.P-7146 and Mazda Truck No. JX-1197 on different dates, which were allegedly loaded with katcha wine/Chemicals and registered FIRs No.18, 19 and 21 of 2015, under sections 3 and 4 of PEHO, 1979, against applicants for alleged transportation of katcha wine in huge quantity from Lahore to Karachi. Complainant separated 1/1 liters from each drum and transmitted the samples for examination and reports to Sindh Chemico Laboratory Sukkur at Rohri and Chemical Examiner issued reports regarding recovered Chemical as Ethyl Alcohol.
6. It is significant to mention that Collector/Director, Excise and Taxation, (Region-A), Lahore issued permits in favour of M/S Bin Arif Industries (PVT) Limited and M/S Globle Inks & Chemicals (PVT)
Limited and such copies are available in files. Perusal of permits reflects that Collector/Director, Excise & Taxation, (Region-A), Lahore vide letter dated 06.12.2014, issued re-grant permit in Form L- 42-B, bearing No.9, dated 04.09.2014, for purchase and possession of 80,000/- gallons of rectified spirit per month, for the year 2014-2015 ending on 30.06.2015, in favour of M/S Bin Arif Industries
(PVT) Limited. Moreover, Excise & Taxation Officer. (Excise), Lahore, issued a certificate on 06.12.2014 that M/S Bin Arif Industries (PVT) Limited, an approved permit holder, dispatched 80 drums of Ethyl Acetate for Zafar Best Karachi. Similarly, Collector/Director, Excise and Taxation, (Region-A), Lahore vide letter dated 12.07.2014 granted permit in Form L-42-A in favour, of M/S Globle Inks and Chemicals (PVT) Limited for the purchase and possession of 210,000 gallons denatured spirit with 5% methanol for use in manufacturing of printing ink subject to payment of Government Excise duty ending on 30.06.2014. Likewise, Government of Pakistan, Federal Board of Revenue, Islamabad, vide letter 18.06.2009, addressed to the Assistant Collector, Local Registration Office, Collectorate of Sales Tax and Federal Excise, Lahore, for approval of necessary change in particulars of registration on application moved by M/S Globle Inks and Chemicals (PVT) Limited. Moreover, Deputy Director (HQ), for Director General, Excise and Narcotics Sindh, Karachi, vide 21.01.2015, forwarded application of M/S Globle Inks and Chemical (PVT) Limited for grant of permission for transfer of material (Printing Ink and Industrial Solvents) from Lahore Punjab to Karachi Sindh, to The Director, Excise, Taxation and Narcotics (Excise), Karachi, and The Director, Excise, Taxation and Narcotics (Excise), Sukkur, Larkana, Hyderabad and Shaheed Benazirabad and such copy was endorsed to M/s Global Inks & Chemicals (PVT) Limited.
7. From plain reading of the documents issued by Excise and Taxation Officer (Excise), Lahore, placed on the record by the applicants, emanate that Chemical seized by the Excise Police Rohri is Ethyl Acetate, while as per reports of Sindh Chemico Laboratory, Sukkur at Rohri the recovered Chemical is Ethyl Alcohol, which was examined manually. Thus to resolve the prime controversy about the nature of the seized Chemicals, it would be essential to send the samples for re- examination to another Laboratory equipped with the required advanced equipments for an adequate and accurate report of Chemical Examiner. Opinion is an inference drawn from particular facts or anestimation formed from credible evidence or decision based on relevant existing material. The meaning of word opinion according to Webster's Dictionary is as follows:- "Opinion: a view, judgment, or appraisal formed in the mind about a particular matter, a belief stronger than impression and less stronger than positive knowledge; a generally held view."
8. Harmonize Commodity Description and Coding System, Explanatory Notes, Fourth Edition 2007, Volume-1, General Rules for the interpretation of harmonize system is reproduced as follows:- "22.07 - Undenatured ethyl alcohol of an alcoholic strength by volume of 80% vol or higher; ethyl alcohol and other spirits, denatured, of any strength.
"Ethyl alcohol and other spirits, denatured, are spirits mixed with substances to render them unfit for drinking but not to prevent their use for industrial purposes. The denaturants used vary in different countries according to national legislation. They include wood naphtha, methanol, acetone, pyridine, aromatic hydrocarbons (benzene, etc.), colouring matter.
Ethyl alcohol is used for many industrial purposes, e.g., as a solvent in the manufacture of chemicals, varnishes, etc., for heating or lighting, for the preparation of spirituous beverages.
B. Liqueurs and cordials, being spirituous beverages to which sugar, honey or other natural sweeteners and extracts or essences have been added (e.g., spirituous beverages produced by distilling, or by mixing, ethyl alcohol or distilled spirits, with one or more of the following: fruits, flowers or other parts of plants, extracts, essences, essential oils or juices, whether or not concentrated). These products also include liqueurs and cordials containing sugar crystals, fruit juice liqueurs, egg liqueurs, herb liqueurs, berry liqueurs, spice liqueurs, tea liqueurs, chocolate liqueurs, milk liqueurs and honey liqueurs".
9. Keeping in the view, all the circumstances highlighted hereinabove, I am inclined to exercise the discretion in favour of applicants particularly when there is no legal embargo for calling second opinion from another Chemical Examiner of the Laboratory equipped with the latest equipments and advanced technology purely on the expenses of the applicants, while earlier report of Chemical Examiner was furnished by examining the recovered substance manually. Even otherwise, in case the second Chemical Examiner's report of recovered substance is resulted in positive, it will not cause any prejudice to the case of prosecution but on the contrary second opinion will strengthen the allegations leveled by the prosecution against accused. Moreover, when applicants are ready to bear all the required expenses and there would be no burden on Government exchequer, the Court has to consider such application judiciously and should not be influenced by the apprehensions agitated by the prosecution, therefore, it is incumbent upon the Court to adjudge all the aspects of the controversy judiciously to remove the clouds of doubt and consider the objection raised by accused appropriately while disbursing the justice.
10. As the sequel of the above discussion, I am of the considered view that to maintain the transparency and to meet the ends of justice, criminal misc. Applications No.129 of 2015, 130 of 2015 and 131 of 2015 stand allowed and Investigating Officer is directed to take samples from the recovered substance in presence of applicants and obtain the second opinions from P.C.S.I.R.
Islamabad, at the expenses of the applicants and submit such reports before the learned Trial Court during the course of trial.