' JAWAID NAWAZ KHAN GANDAPUR, J.--- Appellant Muhammad Farooq, Proprietor Farooq Sons Laboratory, P.O. Box No,477-II, Islamia Park Chibban Road, Faisalabad was put on trial in the Drug Court, (Mr. Khan Akbar,Chairman, Professor Dr. Arbab Abdul Ghaffar and Professor Dr. Nazar- ulIslam, Members), N.-W.F.P., Peshawar for having committed an offence punishable under section 27(2-a) and 27(4) of the Drug Act, 1976.
2. The allegations against the appellant accused, facing trial, were that on 29-6-1987 Mr. Ali Zahir Shah the then Drug Inspector, Bannu (P.W.2) was on petrol duty in Bannu City. He checked the medicine shop of one Ghulam Muhammad (P.W.1) of Messes Two Friends Medical Store, Lakki Gate, Bannu and on checking the stock of the medicine, lying in the store, found 74 bottles of Honey Super magma syrup. Since this product closely resembled, in its packing, with that of Streptomagma syrup which is being manufactured by Messes Wyeth Laboratories, Lahore, therefore, he was of the view that the product in question was spurious and thus seized the same vide; seizure memo. Exh.P.W.1/1, as, according to him, this was in violation of the provisions contained in section 23 (1)(a) of the Drug Act, 1976 Act (XXXI of 1976).
3. Thereafter the Drug Inspector (P.W.2) issued a notice (Exh.P.W.2/1) for the violation of the provisions of the Drug Act, 1976 to Ghulam Fareed (P.W.1), the owner of Messes Two Friends Medical Store. He (P.W.1), in his written reply (Exh.P.W.2/2), sent him Bill No, 1001, dated 14-3-1987 (Exh.P.W.2/3) along with a General warranty, allegedly issued by appellant Muhammad Farooq, Proprietor, Messrs Farooq Sons Laboratories, Faisalabad.
4. On the receipt of Exh.P.W.2/2, the complainants Drug Inspector, Bannu (P.W.2), then issued notice No,213/EII on 9-9-1987 (Exh.P.W.2/4) to the appellant-accused inviting his attention to his bail No,1001, dated 14-3-1987 (Exh.P.W.2/3) and alleged therein that the product so supplied by him was in violation of the provisions of section 23(1)(a)(ii) and 23(1)(b) of the Drug Act, 1976 and the rules framed therein. He further directed the appellant-accused to explain his position in this respect and to submit his written reply positively, within seven days, as to why suitable action, under the law, be not taken against him. The appellant-accused, it appears from the record, submitted his reply (Exh.P.W.2/5) wherein he controverted all the allegations leveled against him and stated that the same were baseless, unfounded, based on mere conjectures and surmises and that the same were against the actual position. He stated further that his product was a genuine product and had been prepared under the "Unani System of Medicine". He, therefore, prayed that since he is innocent, as such, the notice issued to him be withdrawn.
5. The Drug Inspector (P.W.2) not contented with the reply of the appellant-accused referred the complaint, for consideration, to the Chairman, Provincial Quality Control Board, N.-W.F.P., Peshawar vide his letter Exh.P.W.2/6. The Board, after scrutinizing the report, recommended prosecution of the appellant-accused' in the Drug Court and directed the Inspector Drug, Bann (P.W.2) to take legal action under the Drug Act against the appellant vide; its letter No,SO(D)Health/1-4/87 (31st), dated 4-11-1987. It may be mentioned here that this letter was issued by Mr. Mustafa Kamal Khattak, Secretary Provincial Quality Control Board, Health and Social Welfare Department, Government of N.-W.F.P.
6. The needful was done and a complaint was filed in the Drug Court. The appellant-accused was summoned and a charge against him was framed on 6-41993 which was read over and explained to him. He however, pleaded not guilty and claimed trial.
7. In order to prove its case the prosecution produced the following witnesses:-- ' P.W.1 Ghulam Fareed, Proprietor Two Friends Medical Store, Lakki Gate, Bann.
' P.W.2 Ali Zahir Shah, S.O. Drug Health Department, Civil Secretariat.
8. After the close of the prosecution case, the statement of the appellant-accused was recorded under section 342, Cr.P.C. Wherein he refuted all the allegations levelled against him. Although the appellant did not wish to produce any evidence in his defense but he opted to be examined, on oath, as his own witness, under section 340(2), Cr.P.C. His statement was recorded by the Drug Court on 26-7-1994 as D.W.1.
9. After hearing the learned counsel for the parties the Drug Court vide; its order, dated 13-1-1995 found the appellant-accused guilty for having committed the offence with which he was charged and thus convicted and sentenced him to undergo R.I. For a period of one year and to pay a fine of Rs,20,000 and in default thereof to undergo further S.I. For nine months.
10. Since the appellant-accused was present on bail in the Court therefore, he was taken into custody and sent to jail to serve his sentence.
11. The convict-accused has challenged the legality/vires of the conviction and sentence imposed/awarded to him by filing this appeal for the redress of his grievance.
12. Mr. Muhammad Jamil, Advocate learned counsel for the appellant and Mr. Saadat Hussain Deputy Attorney-General for State present and heard. Record perused.
13. It may be stated at the very outset that in criminal cases the burden of proving its case lies on the prosecution. The prosecution is, therefore, duty bound to prove the case against the accused beyond doubt and this duty does not change or vary even in the case in which no defense plea is taken by the accused. The defense plea is always to be considered in juxtaposition with prosecution case and, in the final analysis, if defense plea is proved or accepted then prosecution case would stand shattered and discredited. However, if the defense plea is substantiated to the extent of creating doubt in the credibility of the prosecution case then in that case it could be enough but in case it is not established at all, no benefit would accrue to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defense plea is not proved or is found to be palpably false. Ashiq Hussain v. The State reported in 1993 SCM R 417.
14. Similarly it was held in case Hakim Ali and 4 others v. The State reported in 1971 SCM R 432 that in criminal trials the onus always lies on the prosecution to prove its case and the prosecution has to succeed on the strength of its own case and not on the weakness of the defense.
15. The latest view taken in this respect, by the Honorable Supreme Court of Pakistan in case Ashiq Hussain alias Muhammad Ashraf v. The State reported in PLD 1994 SC 879 is reproduced for the sake of convenience:-- "Onus would be on the prosecution to prove its case through' reliable evidence, direct or circumstantial and that too beyond reasonable doubt."
16. Keeping in view the above dictum, as laid down by the Honorable Supreme Court of Pakistan, in different cases referred to above, we would now discuss the evidence produced by the prosecution in support of its case.
17. The complainant, Ali Zahir Shah, the then, Drug Inspector, Bannu (P.W.2) while in the witness-box supported his own version in his examination in chief. However, when he was cross-examined by the learned counsel for the defense, he admitted that he had not obtained the sample (s) of the drug in question and that therefore, he had not sent any sample to the concerned Laboratory for analysis. In view of this clear cut admission on the part of the complainant we fail to understand as to how the complainant, in the absence of any report by any expert, came to the conclusion that the drug in question was in fact a spurious drug or that the same looked like a drug.
18. Last but not the least, the complainant (P.W.2) in the last few lines of his cross-examination alleged that the drug in question resembled "Streptomagma" which is being manufactured by Messes Wyeth Laboratories, Lahore. However, he admitted that he had, not contacted Messes Wyeth Laboratories, Lahore, in this connection/respect and had failed to obtain the views of the said company in respect of the drug in question.
19. In the presence of these lacunas in prosecution evidence, from whichever angle or point of view the matter is looked into, it leads to the only conclusion that in this case the investigation was not conducted properly/ efficiently and it is for this reason that the prosecution, at the trial, failed to prove the guilt of the appellant-accused beyond reasonable doubt. The impugned judgment of the Drug Court, in our opinion, is a result of erroneous and unreasonable. Lines of reasoning and therefore, merits interference by this Court to erase the effect of miscarriage of justice.
20. As a result the appeal is accepted, the impugned judgment of the Drug Court is set aside and the appellant is acquitted. The appellant is on bail and his bail bonds shall stand be discharged.