RAJA AFRAS1AB KHAN, J.- Tahir Mahmood son of M.B. Javed Awan, was convicted by the learned Drug Court for Punjab, on 15,6.1994, under section 27(4) of the Drugs Act, 1976, for committing offences under sections 23(1) (c) and 23 (1)(i) of the Drugs Act, 1976 and sentenced to one year's R.I.
Plus a i.e of Rs.3,000\- or in default thereof to suffer further R.I. For one month, on each count. Both the sentences were, however, ordered to run concurrently. The convict has challenge his conviction and sentence by filing this appeal before this Court.
2. The facts, in brief, are that on 25.4.1987 Azhar Ali Khan Drug Inspector and Mian Abdul Wahab DDI along with Rustam Khan Naib Qasid raided the premises of the appellant in Chak No. 2, P.S. Change Manga, District Kasur. He was found selling the drugs and on demand was unable to show any licence, invoices and warranties of the drugs, namely,
1. Nickethamide Injection Ex.Pl (one ampul).
2. Neuronbion Injection Ex. P2 (3 injection of 3 ml.)
3. Diazepam Injection Ex. P3 1-2 (2 injections)
4. Toreean Injection Ex. P4 (one Injection)
5. Four ampules of glass containing colourless liquid Ex. P5\l-2 while the other two have been broken and one lying in the box in pieces.
6. Oxytetracycline Vial Ex. P6 (used vial.).
7. Dettol antisceptic Ex. P7.
8. Avil Vial Ex. P8 (open\used).
9. Abbutal Tab Ex. P9\l-10 (Ten Tab.)
10. Gripe Water Ex.P10.
11. Rektol Ex.PH (Used\open).
Accordingly, challan under section 23(l)(c) and 23(l)(i) of the Drugs Act, 1976, was sent for trial of the appellant before the learned Drugs Court, Punjab.
2. The appellant was duly summoned and the prosecution was able to produce Azhar AH Khan Drug Inspector PW1 and Rustam Khan PW2 in support of its case. Azhar Ali Khan (PW1) deposed before the court that he conducted a raid upon the premises of the appellant in the company of Mian Abdul Wahab DDI and Rustam Khan Naib Qasid, DHO Office Kasur, on 25.4.1987. He stated that as a result of the raid, the aforesaid medicine\drugs were recovered from the appellant and that he failed to produce any licence of sale. Rustam Khan PW2 stated that he went to Chak No. 2 Chhanga Manga, District Kasur on a Government vehicle and that the Drugs Ex.Pl to Ex.PH were recovered from the possession of the appellant. The allegations were denied by the appellant in his statement under section 342 Cr.P.C. He took the plea that he had falsely been implicated in the case at the instance of Bashir Saleem, who is an opponent of his father. He therefore, pleaded his innocence. In support of his defence plea, the appellant also produced Liaqat Ali DW1, Muhammad Aslam PW2 and Ghulam Abbas DW3. Tahir Mahmood appellant appeared as DW4 as his own witness. Liaqat Ali DW1 stated that the appellant was running a private school in village Chhanga Manga for the last 8 years and that he had no medical store in Chak No. 2. To the same effect are the statements made by Muhammad Aslam DW2, Ghulam Abbas DW3 and Tahir Mahmood DW4.
Tahir Mahmood DW4 also disclosed that he had passed his F.A. Examination and was running a private school in village Chhanga Manga in the name and style of Public Model School for the last about 8 years. He categorically stated that he did not own any medical store in Chak No. 2 and that he had got nothing to do with the drugs in question. He further deposed that his father was a Homeopathic Doctor and on the eventful day, he was present in the clinic of his father when Azhar Ali Khan PW1 came and offered to give him a licence to run a medical store. The Inspector stated that the appellant would have to spend a sum of Rs.3,000\- and accordingly his signatures were also obtained on a blank form on the promise to issue him the Drug Licence in due course of time.
The appellant further stated that on consultation with his father, he decided not to get a drug sale licence. In this background, the appellant claimed, that he was falsely implicated in the case.
3. The learned trial court convicted and sentenced the appellant, as already observed above, on the ground that he was found in possession of the drugs and was indulging in the sale thereof without obtaining any licence from the competent authority.
4. Learned counsel vehemently argues that there is not a shred of evidence to connect the appellant with the commission of the crime. He contends that none of the prosecution witnesses stated that the appellant had opened a medical store to sell the medicines. Learned counsel for the State, however, defended the conviction and sentence of the appellant by adopting reasons already given by the learned trial court in its judgment.
5. We have heard the learned counsel for the parties at considerable length and have read the entire record with their assistance. Azhar Ali PW1 and Rustam Khan PW2 stated that they visited the spot and took into possession the above-mentioned drugs for which the appellant did not show any licence to keep them in his shop for their sale. Neveretheless, not a word was stated by the said witnesses that the appellant was found selling the medicines without a licence. The nature of the drugs recovered from the shop of the appellant is such that these would be available almost in every house for their daily consumption. They are available everywhere. The drugs in question also include Dettol etc., which item is kept by every person in his house. It was the bounden duty of the prosecution to have produced evidence to show that the appellant was selling the drugs recovered from his possession while keeping them in his shop. No such evidence was produced by the prosecution. In such a situation, no conviction could be recorded against the appellant under the Drugs Act, 1976. On the other had, the defence witnesses stated that the appellant was not owning and running any medical store in the village and that he was running a private school in Chak No. 32. We feel no hesitation to believe the defence version in the given facts and circumstances. It is not denied by the prosecution witnesses that father of the appellant was a Homeopath Doctor and was running a clinic in the Chak. He was also Chairman of the Examining Body of National Council for Homeopathy, Government of Pakistan. In such a situation, the possibility of false implication of the appellant in this case cannot be ruled out as already stated by the appellant. This being so, we accept and set aside the conviction and sentence of the appellant.
He is acquitted of the charges and shall be released forthwith provided of course he is not needed in some other criminal case. The appeal succeeds and is allowed.