WASIM NIAZ Versus THE STATE

Wazir Ahmad petitioner was convicted and sentenced under section 61 of the Punjab Excise Act, 1914, to a fine of Rs. 500 or in default to undergo R.I. for six months by Magistrate 1st Class, Sheikhupura, on 2-1-1976, in a case registered vide F.I.R. No. 293/74, dated 25-7-1974 at Police Station City Sheikhupura, which was affirmed in appeal by a learned Additional Sessions Judge vide the impugned judgment dated 24-6-1976.

2. According to the prosecution, on 25-7-1974, at about 5.30 p.m., consequent upon receipt of a secret information, a raiding party, comprising Muhammad Afzal Khan, Excise Sub- Inspector, Muhammad Fazil Sub-Inspector Police Station City Sheikhupura, alongwith other subordinate personnel of Police and Excise Department, and two civilians namely Muhammad Faryad son of Rehm Ilahi and Khizar Hayat son of Ghulam Muhammad raided petitioner's `Kausar Medical Store', Sheikhupura, where he was present and upon search 30 bottles of rectified spirit were recovered from a cardboard box. Likewise, 16 bottles of rectified sprit were recovered from his residence and 72 bottles from his haveli, which were located nearby. These were taken into possession vide memo Exs. PC, PB and PA respectively. On the complaint of Excise Sub -Inspector, Ex. PD, formal F.I.R. Ex.PD/I was recorded at the City Police Station and one bottle out of each lot was sent to the Chemical Examiner.

3. At the trial, the complainant P.W.3 reproduced the prosecution story which was supported by P.W.5, the Investigating Officer, Muhammad Faryad P.W.2 deposed as to recoveries, Khizar Hayat P.W.4 was declared as having been won over, while Bahadar Khan F.C. P.W.1 testified for having delivered 3 bottles of samples to the Office of Chemical Examiner.

4. The learned trial Court on the basis of the fore-referred evidence, convicted and sentenced the petitioner as described supra, which was maintained in Appeal vide the impugned judgment.

5. A perusal of the record reveals that report of the Chemical Examiner' was not tendered in evidence nor the case property was produced at the trial, further, out of the two recovery witnesses from the public, one, viz. P.W.4, did not support the prosecution case, while the other seems to be a chance witness, the Investigating Officer has given a doubtful version as to the number' of samples prepared during the raid, further, Bahadar Khan P.W.1 has only testified that the parcels remained intact when the same were delivered by him to the Chemical Examiner but this sanctity has remained unvouched while these were in the custody of the Moharrir Malkhana. The cumulative effect of the foregoing short comings impels me to hold that the petitioner is entitled to the benefit of doubt, consequently, this criminal revision is allowed and the conviction and sentence is set aside.

SA/W-39/L

Revision accepted.