MUHAMMAD KASHIF LATEEF Versus State
SADAQAT ALI KHAN, J.--- The instant Crl. Revision No.126 of 2009 has been filed by present petitioner Muhammad Kashif Latif against the judgment dated 24.07.2009 passed by Sessions Judge, Bahawalpur according to which his appeal was dismissed, filed by him against his conviction under section 21(2)(b) of the Agriculture Pesticides Ordinance, 1971 and sentence of 06 months S.I. with fine of Rs.1,00,000/ - and in default thereof further S.I. for one month awarded by Judicial Magistrate, Bahawalpur through judgment dated 12.06.2009 in case FIR No.224 dated 03.07.2008 under section 21(2)(b) of the Agriculture Pesticides Ordinance, 1971 Police Station Kotwali, District Bahawalpur.
2. The brief facts of the case are that Maqbool Shah Agriculture Officer/ Inspector Agricultural Pesticides, BWP (PW-1) /complainant moved an application Exh.PG upon which FIR Mark-A was registered alleging therein that on 09.06.2008 he raided the shop of present petitioner Muhammad Kashif Lateef and obtained samples of Pesticides namely Profenofos and sent the samples for the laboratory test and complainant also obtained the signatures of Muhammad Atif acquitted accused on Form No.5 Exh.PA and Form No.10 Exh.PB and also handed over one sealed sample to Muhammad Atif (acquitted accused) and other samples were sent to Federal laboratory situated at Karachi and Bahawalpur Laboratory. He further stated that on 30.06.2008 report from Faisalabad laboratory was received in which the sample was declared sub-standard through report Exh.PE and 21 carton of the Profenofos were taken into possession and were handed over to the Police.
3. After registration of the case investigation started and after completion of the investigation report under section 173, Cr.P.C. was submitted in the court and learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 19.01.2009 against the present petitioner and his co-accused Muhammad Atif and Muhammad Tauseef to which they pleaded not guilty and claimed for trial.
4. Prosecution evidence was summoned and prosecution produced Maqbool Shah complainant/PW-1, Akram Shahid Field Assistant Agriculture Department PW-2, Muhammad Azhar Khan SI/IO of this case PW-3 and in documentary evidence prosecution produced original From No.5 Exh.PA, Form No.10 Exh.PB, letter No.877 regarding the sending of the sample to Pesticide laboratory Exh.PC, letter 878 for sending the same to the Pesticide laboratory Karachi Exh.PD, result of the Pesticide laboratory Bahawalpur/Faisalabad Exh.PE, Form No.11 regarding the recovery of twenty one carton of sub-standard pesticide Profenofos Exh.PF and closed the prosecution evidence.
5. On the other hand statements of the present petitioner Kashif Lateef and his co-accused Atif and Tauseef have been recorded under section 342, Cr.P.C. Present petitioner Kashif Lateef and his co-accused Atif and Toseef also appeared under section 340(2), Cr.P.C. and made their statements and present petitioner Kashif Lateef also produced in defence evidence Muhammad Ramzan as DW-4 and Muhammad Jaffar as DW 5 and closed the defence evidence.
6. Learned trial court after conclusion of the trial heard the arguments from both sides and acquitted Atif and Tauseef co-accused of the present petitioner whereas convicted Kashif Lateef present petitioner under section 21(2)(b) of the Agriculture Pesticides Ordinance, 1971 with above stated sentences. Present petitioner feeling aggrieved preferred an appeal before Sessions Judge, Bahawalpur which too was dismissed by the learned Sessions Judge, Bahawalpur on 24.07.2009. Hence, this Crl. Revision before this court.
7. Learned counsel for the petitioner submitted that:- i. the judgment of the learned trial court is against law and facts on the file and is liable to be set aside; ii. prosecution has failed to prove the case against the present petitioner beyond shadow of doubt and the learned trial court has relied upon surmises and conjectures rather than facts and convicted the present petitioner illegally and appeal was also dismissed without appreciating the defence evidence; iii. both the courts have misread the evidence and committed illegality by convicting the present petitioner;
8. On the other hand learned DPG vehemently opposed the Crl. Revision and supported the judgments of courts below.
9. The detail of the prosecution as set forth in the FIR Mark-A has already been given in Paragraph No.2 of this judgment, therefore, there is no need to repeat the same.
10. Admittedly Kashif Lateef present petitioner is a registered dealer/vendor of Agriculture Pesticides and his license is Exh.DD duly issued by District Officer Agriculture (Extension) Bahawalpur and also authorized dealer of Agri. Professionals Corporation Multan and in this regard dealership certificate of present petitioner is Exh.DC issued by Director and Chief Executive of Agri. Professionals Multan. PW-1 is Maqbool Shah complainant/Inspector Agriculture Pesticides Bahawalpur stated in cross examination that Profenofos Pesticides was in a sealed condition and was not expired at the time of raid. Further PW-2 Akram Shah Field Assistant of Agriculture Department stated in cross examination that Profenofos Pesticides was packed and he cannot say who had manufactured the same and Pesticides was not expired.
11. In view of the above it was the duty of the prosecution to interrogate the responsible person of the company of Profenofos Pesticides who manufactured the same as sub-standard and there is no evidence with the prosecution to show that the alleged Profenofos (Pesticides) has been manufactured by the present petitioner Kashif Lateef rather it is the case of the prosecution that the Profenofos Pesticides was present at the shop of the Kashif Lateef present petitioner in a sealed condition and present petitioner is the authorized dealer of the company of Profenofos Pesticides and he sells the Pesticides of the said company simply and there is no allegation against the present petitioner that he had tempered the same and admittedly Profenofos was found in a sealed condition at the shop of the petitioner and was not tampered. Prosecution produced letter No.877 Exh.PC which shows that sample was sent to Pesticide laboratory Bahawalpur for analysis whereas letter No.878 Exh.PD shows that another sample was sent to Pesticide laboratory Karachi for analysis but I have perused the result of the pesticides laboratory Exh.PE which shows that the result was prepared by the concerned officer of Pesticides laboratory Faisalabad and was not prepared by Pesticides laboratory Karachi and Bahawalpur where both samples were sent through letters stated above Exh.PC and Exh.PD and simply endorsement of one Waseem Hussain Assistant Agriculture Chemist Pesticides Quality Control Laboratory Bahawalpur is present on Ex.PE (result). So the result of the laboratory Exh.PE is not believable. Further same report Exh.PE has not been put to the present petitioner in his statement under section 342, Cr.P.C. and thus same cannot be read against the present petitioner. Reliance is placed on case titled "Muhammad Shah v. The State" (2010 SCMR 1009) in which august Supreme Court of Pakistan has observed at page 1015 as under:-
"The perusal of statement of the appellant, under section 342, Cr.P.C., reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same was abandoned by him. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained."
12. There is an order dated 01.12.2008 Mark-A passed by District Officer, Agriculture (Extension) Bahawalpur according to which on the recommendation of the District Registration Committee simple warning was issued to present petitioner Muhammad Kashif Lateef to remain careful in future and his registration was not cancelled. This also creates doubt in the prosecution story otherwise registration of the present petitioner would have been cancelled and according to the prosecution story present petitioner had complied with rule 12-A(3) of Agriculture Pesticides Rules 1973 which is reproduced as under:-
"The distributor or retailer shall not accept any pesticide, herbiside, weedicide, medicines or essential drug for use in agriculture, if it is not properly packed or sealed or does not bear label containing the prescribed information."
13. As PW-1 Maqbool Shah complainant and PW-2 Akram Shahid both stated that at the time of raid Profenofos Pesticides was in a sealed condition and same was taken into possession by them. Further before registration of the case no copy of the report of laboratory had been handed over to the present petitioner by Maqbool Shah complainant/PW-1 as required under section 18(2) of The Agricultural Pesticide Ordinance 1971 and same is hereby reproduced:-
"The Inspector shall deliver one copy of the report received by him to the person from whose possession the sample was taken and shall send one copy to the [Federal Government]."
14. Admittedly, the allegedly recovery of 21 cartons of Profenofos through recovery memo Exh.PK was not produced in the court and was not marked with exhibit number and same cannot be used against the present petitioner and further Atif and Tauseef both co-accused of the present petitioner have been acquitted by the trial court by disbelieving the prosecution evidence to their extent and same evidence cannot be believed against the present petitioner and complainant has not filed any appeal against their acquittal.
15. It is a settled law that when eye witnesses found to have falsely implicated two persons then conviction of the remaining accused on the basis of same evidence cannot be relied upon without independent corroboration which is missing in the instant case.
16. In the instant case, prosecution has failed to prove that the Profenofos has been adulterated by the present petitioner because petitioner has received the same in a sealed condition from the company being authorized dealer of the company and same was found by the complainant Maqbool PW-1 in a sealed condition in the shop of the present petitioner at the time of the raid.
17. It is a settled principle of law that in case of doubt the benefit of doubt must go in favour of the accused as matter of right and not as a matter of grace and it is not necessary that there should be many circumstances for giving the benefit of doubt if there is a circumstance which created reasonable doubt in a prudent mind about the guilt of the accused then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. Reliance is placed on case titled "Muhammad Akram v. The State" (2009 SCMR 230) in which august Supreme Court of Pakistan at page 236 has observed as under:- "the nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to be benefit of doubt not as a matter of grace and concession but as a matter of right."
18. From the facts and circumstances narrated above I am persuaded to hold that prosecution has badly failed to bring home the guilt of the petitioner to the hilt and the learned trial court was not justified in convicting him while basing upon untrustworthy/un-corroborated evidence deposed by the interested witnesses which even otherwise is full of material contradiction especially un-reliable story deposed by PWs. Resultantly, salutary principle of benefit of doubt is extended in favour of the petitioner. The Crl. Revision No.126 of 2009 filed by petitioner Muhammad Kashif Latif is accepted and his conviction and sentence awarded by the learned trial court through impugned judgment dated 24.07.2009 is set aside along with judgment dated 24.7.2009 passed by Sessions Judge, Bahawalpur in appeal filed by the present petitioner against his conviction and the petitioner is ordered to be acquitted of the charge in case FIR No.224 dated 03.07.2008 under section 21(2)(b) of the Agriculture Pesticides Ordinance, 1971 Police Station Kotwali, District Bahawalpur by giving him benefit of doubt. He is present on bail. His surety stands discharged.
HBT/M-183/L Petition accepted.