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Criminal Acquittal Appeals Nos. 384,385 and 387 of 1961, decided on 24th August 1966.

, S. 417-Appeal against acquittal-Does not lie on question of fact only-Factors to be taken into consideration in deciding an appeal against acquittal-Views of trial Court in regard to credibility of pro secution witnesses and slowness of appellate Court in disturbing finding of fact-Must always be kept in mind.

Sheo Swaraf and others v. King Emperor A 1 R 1934 P C 227 and Criminal Appeal No. 27 of 1967 ref.

S. Murtaza Hussain for A. A: G. for the State.

Abdullah Shah for Respondents.

Date of hearing : 19th August 1966.

-The se three appeals have been filed under section 417, Cr. P. C. by the State and are directed against the orders dated 26-3-64, passed in three cases by Mukhtiarkar and 1st Class Magistrate Sehwan (Mr. Muhammad Anwar Kazi) acquitting the three respondents of the offences punishable under sections 4 and 6/23 of the West Pakistan Pure Food Ordinance, 1960 (Ordinance No. VII of 1960). We shall deal with these three appeals together and dispose of the same under this judgment as both question of fact and law are similar.

On 25-7-63 Muhammad Akram, Food Inspector Dadu, purchased three bottles of aerated water under a receipt from the respondent Fakir Muhammad, sealed the same in his presence and obtained the declaration from him. The report dated 21-9-63 of the Public Analyst shows that in his opinion the sample i.e. the aerated water purchased from the respondent was of "non-genuine aerated water" as it contained sacchrine. Usual complaint was filed by the Food-Inspector and he had supported all these facts on oath before the trial Court. The respondent had admitted that the Food Inspector had purchased the three bottles of aerated water from him but he had denied that these bottles were sealed in his presence. Three witnesses were examined by him in defence and two of them, namely, Muhammad Urs and Abdul Khaliq have fully supported this version. The learned Magistrate came to the conclusion that the prosecution had failed to establish the identity of the sample of aerated water taken by the Food Inspector from the respondent and consequently acquitted the respondent. , He had advised that in such cases mashirnama should be prepared by the Food Inspector in the presence of the mashirs and secondly, these samples should be sealed in their presence. Acquittal Appeal No. 387 of 1964 is directed against this decision.

3. On the same day the Food Inspector had purchased Ghee from two respondents, namely, Rajab and Raza Muhammad, and followed the same procedure. The public analyst in his report had opined that the sample of Ghee is "non -genuine Ghee" as it did not conform to the standard of Ghee prescribed in the rules under the West Pakistan Pure Food Ordinance, 1950 as it contained 20 % of foreign fat. These two respondents had raised similar pleas before the trial Court which had held that prosecution had failed to prove the identity of the sample sent to the Public Analyst. The two Appeals Nos. 384/64 and 385/64 are directed against these two decisions.

4. The learned counsel for the State had urged before us that there is no provision under this Ordinance or the Rules framed under it for obtaining sample in presence of the mashirs or that the sample taken by the Food Inspector must be sealed in the presence of the party concerned. He referred us to Rule 39 of West Pakistan Pure Food Rules which lays down the procedure for seizure of unsound food. When such kind of food is to be seized this rule provides that the Food Inspector must do it in the presence of two respectable persons and if practicable of the owners of such articles or his agents or of the occupants of the pre mises. On this analogy i.e. if the principle of this rule is followed in obtaining samples, this difficulty would not have arisen. The State counsel was of view that provisions of Rule 39 do not apply when sample is taken of the food' as defined under section 2 (9) or that of Ghee' as defined under section 2(10). We have agreed with him in this respect. Rule 39 clearly lays down the procedure for seizure of unsound food and not when samples of food and Ghee are obtained by any Food-Inspector. But what we want to make it clear is that the principle of this rule could apply when sample of food or Ghee is obtained by a Food Inspector. In these particular cases Muhammad Akram (Food Inspector Dadu) had stated on oath that he had sealed all the bottles and Ghee and labelled the same in the presence of these three respondents. When they were questioned under section 342, Cr. P. C. they had denied these facts. They are supported by their witnesses examined by them in defence. Complainant Muhammad Akram has admitted (vide Criminal Acquittal Appeal No. 387/64) that the bottle did not bear the signature on the label. Exh. I-B is the declaration obtained by him from respondent Fakir Muhammad. The column with heading "description of seal applied" is blank. It does not show what kind of seal was applied by the Food-Inspector. If he had really sealed these three water bottles in the presence of the respondent Fakir Muhammad, this column would not have been left blank by the Food-Inspector. We were then referred to the report Exh. l-C of the Public Analyst which shows that the packet which he had received was sealed "with two seals bearing the impression on the invoice attached". It is quite likely that the Food Inspector had put those seals not at the shop of the respondent Fakir Muhammad. Similar is the case in the two other matters of respondents Rajab and kaza Muhammad. This column appears blank in the declarations obtained by the Food Inspector from them. We are therefore satisfied that the samples obtained by the Food Inspector were not sealed in the presence of these three respondents. The trial Court had therefore rightly come to the conclusion that the prosecution had failed to establish the identity of the samples. of aerated water and Ghee sent by the Food Inspector to the Public Analyst. This is a question of fact and no acquittal appeal can lie on the question of fact only. In the case reported in A I R 1934 P C 227 certain basic principles were laid down while deciding appeal against acquittal and it was held that Court must take into consideration following factors: -

(1) The view of the trial Judge as to the credibility of the witnesses.

(2) The presumption of innocence in favour of the accused, the presumption certainly not weakened by the fact that he has been acquitted at his trial.

(3) The right of an accused to the-benefit of any doubt.

(4) The slowness of an appellate Court in disturbing the finding of fact arrived at by a Judge who had the advantage o seeing the witnesses.

These principles have been invariably followed by the Supreme Court and the High Courts of this country. While applying the principles laid down in this case I.e. in dealing with appeal against the acquittal the views of the trial Court in regard to the credibility of the prosecution witnesses and the slowness of the appellate Court in disturbing the finding of fact must always be kept in mind because the trial Judge has disbelieved the entire evidence brought against the accused person. We have therefore to be extra cautious in accepting the evidence Stets led on behalf' of the prosecution. In an unreported case (Criminal Appeal No. 27 of 1961) our Supreme Court has observed as follows: -

"It is true that an acquittal order passed by a trial Judge who has seen the demeanour in the witness box should not be lightly set aside, as has been said by the Privy Council the presumption of innocence is by no means weakened by the acquittal."

In the light of the above discussion we found no merit in these appeals which were dismissed on the date of hearing viz., 19-8-66 and the reasons for the same are being recorded today.

Appeals dismissed.

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