' Extra-Assistant Director (Extension) Agriculture, Toba Tek Singh, raided business premises of Messrs Usman Traders, Grain Market, Toba Tek Singh, and took into possession sample of pesticides --- Alpha Cypher Methrine in presence of its owner Rana Muhammad Saleem. One sample of the pesticide was sent to Agricultural Chemist Laboratory, Faisalabad, and another to Advisor, Director, Ministry of Food and Agricultural Department of Plant Protection, Jinnah Avenue, Karachi for analysis. The results revealed that pesticides recovered from the business house of Rana Muhammad Saleem were of substandard quality and were found to be adulterated. As a consequence F.I.R. No,170, dated 6-5-1998 under sections 21(a) and 22 Pesticides Act, 1997, was registered against Rana Muhammad Saleem.
' The accused was tried in the Court of Sub-Divisional Magistrate, Toba Tek Singh, where prosecution examined six witnesses. The refevant reports were also tendered in evidence. The accused under section 342, Cr.P.C. Denied prosecution case against him and stated that the Assistant Director had demanded a sum of Rs,10,000 from him and on his refusal to pay the money, this case was made against him. The accused also produced copy of another report Exh.D.A. Of National Project Director, Ecotoxicology Research Institute, NARC, Islamabad, which showed that the sample analyzed by the Institute was specified quality. The trial Court took into consideration report Exh.D.A., of National Director Ecotoxicology Research Institute (NARC) and acquitted the accused vide judgment, dated 26-3-2000.
2. The State submitted appeal which was admitted to hearing on 13-12-2000. Learned Assistant Advocate-General as well as the learned counsel for the respondent have been heard in the matter.
3. Learned Assistant Advocate-General submitted that the prosecution proved its case beyond any reasonable doubt when the reports of the Government Analyst tendered in evidence, showed the samples of pesticides recovered from the possession of the respondent-acquitted accused to be adulterated and of substandard quality. It was submitted that Exh.D.A. Relied upon by the trial Court had no evidentiary value and it was not proved in accordance with law and that the trial Magistrate also adopted a noval procedure inasmuch as he himself wrote to NARC and obtained verification therefrom in respect of report Exh.D.A. And then proceeded to acquit the accused which showed that the jurisdiction was exercised in a coloured manner by the trial Magistrate. It was submitted that the adulterated pesticides had wrong havoc to the poor agriculturists and acquittal of respondent has resulted into miscarriage of justice.
4. Learned counsel for the respondent contended that the appeal was filed incompetently as Assistant Advocate-General was not a Public Prosecutor in terms of provision of 492, Cr.P.C. And the appeal being incompetent merited outright rejection. It was further contended that the sample recovered from the business premises of the respondent was duly got analyzed by him and the report Exh.D.A. Manifested that the pesticide was of specified standard and the accused was rightly acquitted by the lower Court.
5. Under section 417, Cr.P.C. The Provincial Government is empowered to direct Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by Court other than High Court. The objection raised by the learned counsel for the respondent is that the Assistant Advocate-General is not a public prosecutor and could not have filed appeal on behalf of the State. The provisions of Chapter 3 of Punjab Law Department Manual, 1938 read as under:-- "3.1 Advocate-General responsible for Crown criminal business in the High Court.--- The Advocate- General will be directly responsible for the conduct of the criminal business of the Crown in the High Court and is ex officio Public Prosecutor and standing counsel for the Crown in that Court."
(Punjab Government Notification Home-Judl.No,1224-J-37/13344, dated 3rd April, 1937)
' Sub-paragraph (2) of Paragraph 3.6 of the aforesaid Manual reads as under:-- ' "The two Assistant Legal Remembrancers and the Assistant to the Advocate-General are Public Prosecutors generally for the Punjab."
(Punjab Government Notification No,37274.39/21757, dated 23rd June, 1938).
' The nomenclature of Assistant to the Advocate-General underwent a change subsequently and now Assistant to Advocate-General is called Assistant Advocate-General and is duly appointed under Article 140 of the Constitution of Islamic Republic of Pakistan, 1973. The Notifications of the Government of the Punjab, referred to above, are unambiguous in this regard and the Advocate- General and the Assistant Advocate-Generals, in the Punjab, are duly notified Public Prosecutors in terms of provisions of section 492, Cr.P.C. And are authorized to conduct the criminal business on behalf of Government of Punjab. The Assistant Advocate-General being a Public Prosecutor is competent to file an appeal against acquittal under section 417, Cr.P.C. The objection raised by the respondent has been found to be untenable and is rejected.
6. In this case a raid was conducted at the business premises of the respondent and three samples as required under the relevant rules were prepared by Extra Assistant Director, Agriculture. One sample was handed over to the accused. The samples of pesticides recovered by the Assistant Director on analysis were found to be adulterated. The accused himself tendered in defence copy of report Exh.D.A. Claimed to have been issued by NARC. None from that office had come forward to verify the report. The trial Magistrate himself wrote a letter to NARC and on receipt of letter therefrom accepted report Exh.D.A. As being gospel truth and proceeded to give benefit of that to the accused. This was an unwarranted and uncalled for exercise. The report Exh.D.A. Tendered by the accused in defence has to be proved by a competent person from NARC, who could have proved the contents of the report only after having appeared in the witness-box in defence of the accused. The relevant issue in this regard was whether sample recovered by Extra Assistant Director, Agriculture and which was handed over to the accused was actually sent to NARC or not or whether it was duly sealed or not, and these questions could have been answered by a competent functionary of the NARC. In the absence of that evidence or material benefit of report Exh.D.A. Could not have been given to the accused as was done by the trial Court.
7. As a consequence, the appeal is allowed and the matter is remitted to trial Magistrate for holding de novo proceedings in the case. The accused should be provided an opportunity to prove Exh.D.A.
In accordance with law, and thereafter, the trial Magistrate can pass any appropriate order in the matter. The accused to appear before the trial Court on 23-4-2001.