' Ijaz Ahmed was convicted and sentenced under section 6 read with section 23 of the West Pakistan Pure Food Ordinance of 1960 to undergo simple imprisonment for one month and was directed to pay analysis fee of Rs, 30 of the Ordinance in favour of the Government. Aggrieved against his conviction and sentence he filed an appeal before the learned Additional Sessions Judge, Jhelum who dismissed the same and upheld both his conviction as well as his sentence.
Hence this revision petition.
2. The brief facts of the case are that Ijaz Ahmed who was 19 years of age at the time of occurrence and was running a grocery shop in Ghalla Mandi, Jhelum. On 4-7-1964, Pure Food Inspector went to the shop of the petitioner and conducted its inspection. In the back room of the shop he found one tin containing five seers of Haldi. This Inspector purchased four chhatanks Haldi out of it, from the accused/petitioner and then prepared four sealed packets thereof. While handing over one of the packets to the petitioner he sent another packet to the Public Analyst, Rawalpindi. The report Exh. P.
A. Received from the Public Analyst revealed that the sample was not of Haldi but it was a powdered husk which had been dyed. The case of the petitioner was that in fact the stuff so recovered was not Haldi as he never sold Haldi in his shop. He further asserted that this stuff was lying with some other things in the back room of his shop and nothing out of these articles was meant for sale. According to the petitioner the Food Inspector despite his protestation, put up a false case against him in order to show his performance.
3. I have heard the learned counsel for the petitioner as well as counsel for the State. It has been submitted on behalf of the petitioner that prosecution has failed to show that the sample of this stuff which was taken into possession, was from the stuff which was for sale. This aspect of the case is fully made out from the statement of Muhammad Yousuf D. W. 1 and statement of the petitioner himself. It was further submitted that the recovery memo which was prepared in this case has not been brought on the record and the same was not attested by any witness as it is evident from the statement of the Inspector himself. The learned counsel has relied on Additional Advocate-General, West Pakistan and another v. .Rajah and others (1) in support of his second contention. On the other hand the learned counsel for the State has contended that the case of the prosecution stands fully proved by the evidence of the Inspector who is an independent person and had no motive to falsely implicate the petitioner. As regard the second contention regarding the recovery memo, raised by the learned counsel for the petitioner, it has been submitted that the authority cited is not attracted to this case as in that case the learned Judges, have taken into consideration the violation of rule 39 of the West Pakistan Pure Food Rules, which does not apply to the present case.
4. I have given my anxious thought to the contentions raised by both the parties and find that the recovery memo prepared in this case has not {{FOOT NOTE}}
(1) PLD 1967 Kar. 277 {{FOOT NOTE}} ' been brought on the record as contended by the learned counsel for the petitioner. In the absence of the recovery memo. One is apt to infer that the prosecution has not produced the most important document in support of its version. The very reading of the statement made by the Food Inspector leads to an irresistible conclusion that none besides himself attested this recovery memo. Otherwise he would have categorically stated the names of the witnesses before whom the recovery was made. Their Lordships in the authority quoted above, held that rule 39 of the West Pakistan Pure Food Rules, no doubt, lays down the procedure for seizure of unsound food and not when samples of food and ghee are obtained by a Food Inspector. Nevertheless, the principle of this rule could apply when a sample of food and ghee is obtained by a Food Inspector and such samples should be sealed in presence of the parties concerned.
5. The learned counsel for the State has submitted that when no such procedure was laid down in the Act itself, any such procedure so formulated by a rule would be negation of the Act itself.
However if this principle is accepted that a Food Inspector can make a recovery by himself without joining any respectable person of the locality, then that procedure, will be fraught with dangers, as this will give wide powers to this officer which in the interest of justice and fairplay would be hardly desirable. The law conceives that every person is innocent till he is found guilty and in this matter jealousy safeguards the rights of the citizen. Respectfully following the rule laid down by the Division Bench of the Karachi High Court, as relied upon by the learned counsel for the petitioner. I feel that no concession should be allowed to the Health Department in observing this rule strictly.
6. After going through the record and taking into consideration this aspect of the case which has been brought so my notice by the learned counsel for the petitioner, I am of the confirmed opinion that the prosecution has failed to prove its case as required under the law against the petitioner vis-a-vis the recovery of this foodstuff. The petitioner also protested at the very outset when he appeared before the trial Magistrate that he was made a party to this recovery against his will and was made victim of Food Inspector arbitrary will. He has also produced D. W. 1 Muhammad Yusuf who has supported his contention. This witness was not cross-examined by the prosecution; therefore his testimony will remain unaffected.
7. The result is that I accept the petition, set aside the conviction and sentences of the petitioner and acquit him. The petitioner who is on bail, is discharged of his bail bonds.