The petitioner was convicted for an offence under section 61 of the Excise Act No. 1 of 1914 and sentenced to R. I. For one and a half years and to a fine of Rs. 1,000 or in default to undergo R. I. For six months by a Magistrate 1 Class, Daska on 16th December, 1978. In appeal the conviction was maintained by the learned Additional Sessions Judge, Sialkot but the sentence was reduced to six months R. I. And a fine of Rs. 500 or in default to undergo further imprisonment for one month.
2. The conviction and sentence of the petitioner has been challenged on the ground that the articles of the distillery were taken into possession from the house of one Mistri Muhammad Aslam and that instead of Mistri Muhammad Aslam who could have been responsible for the arti--cles the petitioner has illegally been proceeded against. It has also been pointed out that none of the articles recovered from the petitioner have been produced before the trial Court, and, therefore, a conviction passed in absence of such articles was illegal.
2-A. Muhammad Fazal P. W. 1 Muhammad Aslam P. W. 5 and Hasan Akhtar, A. S. I. P. W. 3 have all admitted that a raid was conducted in the house of Mistri Muhammad Aslam where liquor was being distilled. Relying on the case of Emperor v. Binjha (AIR 1930 Lah. 884). It has been contended that it was the master of the house who was responsible for the possession and control of the articles recovered. Mistri Muhammad Aslam has not been prosecuted. The prosecution may have had a case if the petitioner had been prosecuted along with Mistri Muhammad Aslam as an abettor but not in the absence of Mistri Muhammad Aslam as it is the master of the house who is responsible for the articles recovered from it and not tire petitioner. As to the non-production of the incriminating articles at the trial, the learned counsel has referred to the case of Wazir Bat Khan v.
The State (1980 PCrLJ 292).st
3. In view of the above considerations the conviction and sentence of the petitioner is set aside and he is acquitted of the charges against him. He is on bail and is discharged of the bonds.