1. This revision petition is directed against the judgment of two Courts below whereby K.M.C.
2. Magistrate convicted the petitioner under section 6(1) (a) and (c) read with section 23 of the West Pakistan Pure Food Ordinance and sentenced him to suffer R.I. For one year and fine of Rs.1,000. The appeal was filed in the Court of Sessions which was disposed of by the learned Sessions Judge by means of order, dated 21-8-1984. The appeal was dismissed and the conviction was maintained but the sentence was reduced to 3 months and the fine was maintained.
3. The petitioner being aggrieved has filed the present petition. The learned counsel for the petitioner has stated that the prosecution examined the Food Inspector and two Mashirs and produced report of the Public Analyst in support of their case and the two Courts below erred in law in not considering that both the Mashirs were highly interested witnesses and no independent witnesses from the locality have been cited. This objection was taken before the lower Court. The learned Sessions Judge has disposed of this objection in para. 9 of his order wherein it is stated that the Food Inspector has deposed that 2/3 customers were present at the store of the appellant (petitioner) and they were requested to act as Mashirs but they refused to do so. In these circumstances Food Inspector Jaffer had no alternative but to seize the articles in presence of Israr and Ramzan. The Food Inspector has admitted in cross-examination that Ramzan and Israr Ahmad have acted as Mashirs with him in other cases also. The area is a commercial area and is very thickly populated area. He did not make any effort to obtain any independent witnesses from the locality and could not leave the store in question. He has further admitted that the Mashirs had accompanied him from the very beginning. The learned counsel has stated that Mashirs are employees of K.M.C. The Food Inspector has admitted that he did not make any effort to obtain any independent witnesses from the locality. These two witnesses who acted as Mashirs in this case had appeared in a number of cases and this is also not denied by the other side that these witnesses are the employees of the K.M.C. It was the duty of the Food Inspector to have procured independent witnesses as he has not done and there was no reason as to why he could not procure independent witnesses.
4. The order impugned in this revision petition cannot be sustained. The learned counsel has referred to a case reported in 1980 P Cr. L J 985 in support of his contention. The position would have been different if no independent witnesses had come forward to act as Mashirs as stated by the Food Inspector Jaffer in his examination-in-chief but in cross-examination he contradicted his earlier statement and stated that he did not make any attempt to procure independent witnesses from the locality. The conviction is to be based on the solitary statement of the Food Inspector. It was the duty of the prosecution to have acted in accordance with the provisions of the Ordinance to show that all possible attempts were made to procure the independent witnesses. If failed to comply with the provisions of Code of Criminal Procedure. In these circumstances the petition is accepted.
5. The judgments of two Courts below are set aside. The sentence recorded against the appellant is also set aside. He is already on bail.