ABHER GUL KHAN. Sheraz, Muhammad Abbas, Azhar Ahmad & Muhammad Ijaz alias Allah Rakha (appellants) involved in case FIR No.34 dated 25.01.2019 registered under Sections 22-A, 23, 28 & 32 of the Punjab Food Authority Act, 2011 as amended in 2016 at Police Station Ahmed Yar, Arifwala were tried by Mr. Hafiz Shahid Javed, Learned Judicial Magistrate Section-30/ Model Trial Magisterial Court (MTMC), Arifwala and vide judgment dated 29.11.2021 the appellants were handed down guilty verdict in the following terms:- i. Under Section 22-A of the Punjab Food Authority Act, 2011 as amended in 2016: to undergo rigorous imprisonment for five years along with fine of two million rupees i.e. Rs.20,00,000/- (twenty lac) and in case of default of payment of fine, rigorous imprisonment for further period of fifteen
(15) months. ii. Under Section 23 of the Punjab Food Authority Act, 2011 as amended in 2016: to undergo rigorous imprisonment for six months along with fine of one million rupees i.e. Rs.10,00,000/- (ten lac) and in case of default of payment of fine, rigorous imprisonment for further period of forty five (45) days. iii. Under Section 28 of the Punjab Food Authority Act, 2011 as amended in 2016: to undergo rigorous imprisonment for six months along with fine of one million rupees i.e. Rs.10,00,000/- (ten lac) and in case of default of payment of fine, rigorous imprisonment for further period of forty five
(45) days. iv. Under Section 32 of the Punjab Food Authority Act, 2011 as amended in 2016: to undergo rigorous imprisonment for (01) year along with fine five hundred thousand rupees i.e. Rs.5,00,000/- (five lac) and in case of default of payment of fine, rigorous imprisonment for further period of three (03) months.
All the sentences were ordered to run concurrently. Benefit of section 382-B Cr.P.C was also extended to the appellants.
Challenging their conviction and sentence, appellants filed instant appeal. During the pendency of instant appeal, Sheraz (appellant No.1) died on 27.12.2023, hence to his extent, the proceedings were abated vide order dated 28.03.2025 passed by this Court.
2. Precisely stated the case of prosecution, as unveiled by Munir Ahmad, Food Safety Officer (PW.1) in complaint (Exh.PA) is to the effect that he is working in Punjab Food Authority as Food Safety Officer (BPS-17). On 25.01.2019 at about 12.15 a.m. (midnight) a raid was conducted by the Punjab Food Authority Pakpatan Sharif on the synthetic Milk manufacturing unit of Muhammad Abbas, Ch. Azhar, Muhammad Farooq ur Rehman and Allah Rakha situated at the Haveli of Muhammad Abbas s/o Khan Muhammad at 30/KB near Government Primary School and during the raid, in presence of Muhammad Abbas, Farooq and Sheraz (employee), articles of manufacturing of synthetic milk, skimmed milk powder, vegetable cooking oil (Aghaz) CMC, Tri Sodium citrate, mixing drum and mixing machine were found lying at the place of occurrence which were used for adulteration of milk as well as manufacturing of synthetic milk which is an offence under the Punjab Pure Food Regulations 2018. The manufacturing unit of Muhammad Abbas was sealed in presence of police and accused Muhammad Farooq ur Rehman and Sheraz were handed over to the police while remaining accused fled away from the spot. Furthermore, the vehicle No. LES-1400, LRO-2423 and motorcycle No.PKK-4630 were also handed over to the police at the spot.
3. On conclusion of investigation, report under section 173 Cr.P.C was submitted in the court whereupon, the trial of the case was held. During trial, the prosecution, in order to prove its case against the appellants produced 04 PWs including Munir Ahmad, Food Safety Officer (PW-1), who is the complainant of the case, Ghulam Mohiuddin, Assistant Food Safety Officer (PW-2), the member of raiding party, Muhammad Manzoor, ASI (PW-3), the investigating officer of the case and Mushtaq Ahmed, ASI (PW-4), who chalked out formal F.I.R. Exh.PH as per law.
4. After the conclusion of prosecution evidence, the learned trial court examined the appellants under section 342 Cr.P.C.
The appellants refuted the allegation against them and pleaded their innocence. The appellants neither opted to appear under section 340 (2) Cr.P.C. nor produced any evidence in their defence.
After the completion of trial, the appellants were convicted and sentenced by the learned trial court as afore-stated. Hence, the instant appeal.
5. Arguments heard. Record perused.
6. Perusal of record reveals that it was specifically alleged in the complaint (Exh.PA) on the basis of which F.I.R. (Exh.PH) was registered is that a raid was conducted by the Punjab Food Authority Pakpatan Sharif, Food Safety Team of Sahiwal and Dairy Safety Team upon the manufacturing unit belonging to Muhammad Abbas, Azhar Ahmad and Allah Rakha, however, during the course of evidence, not a single document was produced to prove the fact that Muhammad Abbas (appellant No.2) was owner of the Haveli wherein the manufacturing unit was installed for the preparation of adulterated milk and this main allegation is not proved by the prosecution through any cogent and convincing evidence. Admittedly, as per F.I.R. (Exh.PH), skimmed milk powder, vegetable cooking oil (Aghaz), CMC, Tri Sodium citrate, mixing drum and mixing machine were taken into possession, however, neither these articles were produced during trial nor exhibited in evidence. It is important to mention here that Rule 14-F, Part-B, Chapter-24, Volume III of the Rules and Orders of the Lahore High Court, Lahore emphasizes the importance of presenting all relevant physical evidence in court and highlights the necessity of establishing their connection to the case and verifying their identity through witness testimony. Besides that, the rule also underscores the role of tendering tangible evidence in supporting legal arguments and ensuring a fair trial. For reference sake, the aforementioned rule is reproduced below;- 14-F. Every article to be produced.- Clothes, weapons, money, ornaments, food and every article which forms a part of the circumstances evidence should be produced in Court and their connection with the case and identity should be proved by witnesses.
The requirement outlined in the rule is clear and unambiguous, leaving no room for discussion regarding the significant consequences of failing to meet the criteria for producing and connecting evidence. Such failures can lead to the exclusion of that evidence and impact the overall fairness of the trial. Regrettably, in the present case, this critical aspect was egregiously overlooked by the trial court, making it impossible to uphold the conviction of the appellants. Even the learned trial court paid no heed to the aforementioned legal flaw by not exhibiting the recovered articles separately or even to bring on record their exact numbers, thus cannot be read in evidence. If any reference in this regard is needed that can be made to the case law reported as MUHAMMAD YOUNIS and others vs. ESSA JAN and others (2009 SCMR 1169). The relevant extract from the said order is reproduced below for ready reference;- "The most important aspect of the case is that this old document has not been placed on record and exhibited in evidence. A document which is not a part of the judicial record, its judicial notice cannot be taken."
7. Besides that schedule provided under section 22A of the Punjab Food Authority Act, 2011, as amended in 2016, clearly states that the offence applies only when the quantities of adulterated food meet or exceed the specified levels outlined herein below;- "SCHEDULE"
(Section 22A)
Sr #Article of Food Quantity
1. Milk 500 litre 2 Desi Ghee, Butter 1000 kg 3 Khoya 1000 kg 4 Edible oils & fats 1000 litre 5 Tea 250 kg 6 Atta, Maida, Suji, Basin 1000 kg 7 Sugar, Honey, Gur, Shakar or other sweeteners 1000 kg 8 Prepared food 100 kg 9 Ketchup, Sauces & Pickles 250 kg 10 Aerated Carbonated water 1000 litre 11 Spices 250 kg 12 Cereal & Cereal Product(other than Atta) 500 kg 13 Snack Products 500 kg 14 Confectionary 250 kg 15 Ice Cream, Kulfi, cream, condensed milk, cheese, Yogurt 250 kg 16 Baby Foods 100 kg 17 Milk Powders 500 kg 18 Syrup, sherbets, Fruit and Vegetable concentrates 500 litre 19 Water 500 litre 20 Vegetables & Fruits 200 kg 21 Meat & Poultry 200 kg 22 Meat & Poultry (If section 2(a)(i) is attracted) 20 kg 23 Foods not specified 250 kg"
8. Likewise, section 13 (2) of the Punjab Food Authority Act, 2011 envisages that a Food Safety Officer shall create a statement detailing the food, equipment, utensils, or vehicle that has been seized and shall provide a copy of this statement to the individual from whom the items were taken. If that individual is not present, a copy shall be sent to him by mail. For reference sake, Section 13 (2) of the Punjab Food Authority Act, 2011 is reproduced below:- "13 (2) A Food Safety Officer shall prepare a statement describing the food, apparatus, utensils or vehicle seized and shall deliver a copy of the statement to the person from whom it is seized or, if such person is not present, send sucy copy to him by mail."
Perusal of instant case file reveals that no such statement was prepared or handed over to the accused which deprived them from due process of law and their fundamental right. In this regard, recovery memo Exh.PD is very much relevant in which only form No.13 (1) & 13 (2) and photocopies have been mentioned but neither they were produced in proof of the fact that mandatory requirements of law were fulfilled by the Food Safety Officer nor they were exhibited at the time of evidence in shape of documentary evidence. In the given circumstances, the solitary legitimate inference, which can be drawn from withholding such a material piece of evidence is to the effect that had these documents would have produced before the court, same would not have supported the case of prosecution. Such inference is in line with provisions of Article 129, Illustration
(g) of Qanun-e-Shahadat Order, 1984. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Rafique, etc. v. State & others (PLJ 2011 SC 191) held as under:- "that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e-Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution."
9. I have also meticulously perused the evidence of the prosecution and especially of Munir Ahmad, Food Safety Officer as (PW.1) who during his examination in chief deposed that;- On 27.01.2019, I in the presence of Muhammad Shahbaz and Ghulam Mohuddin handed over documents comprising of form No.18, sealing form, form regarding possession of material called seizing form, attested photo copy regarding possession of material.
Nowhere in the entire statement of Munir Ahmad (PW.1) it is specifically mentioned that any adulterated or sub-standard milk was found or that the appellants were caught in the act of producing adulterated milk at the location. In this regard the admission made by Munir Ahmad (PW.1) during cross-examination is of vital importance who deposed in following terms as under:- "It is correct that no synthetic milk was found on the spot. Volunteered that material found which was being used for manufacturing of synthetic milk."
From the above portion of the cross-examination, it is crystal clear that although the presence of materials used for manufacturing synthetic milk was found, however, the prosecution was obliged to prove that the accused had the intent to produce synthetic milk and that they were actively engaged in its production. Even if the volunteered portion of the statement of PW1 is considered as correct, then the question of pivotal importance arises that whether said material was forwarded to any laboratory for chemical analysis or nor to verify if they contained adulterated or substandard substances but not a single piece of evidence has been produced by the prosecution to show that the aforementioned material was forwarded to any laboratory suggests that the prosecution has failed to provide any proof or documentary indicating that the material in question was sent to a laboratory for analysis or testing.
10. After considering the material available on record, I am of the considered view that the case of prosecution is highly doubtful, therefore, the appellants are entitled for the benefit of doubt which is accordingly given to them. Resultantly, while allowing Criminal Appeal No.77776 of 2021 I extend benefit of doubt in favour of Muhammad Abbas, Azhar Ahmad & Muhammad Ijaz alias Allah Rakha Ali (appellants). Their conviction and sentence is set-aside and they are acquitted of the charge.
They are on bail. Their sureties stand discharged.