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Criminal Revision No. 185 of 1975, decided on 20th May 1975.

‑‑S.537‑‑‑Evidence transfer of‑Irregularity‑Accused prosecuted for distinct offences under Customs Law and Excise Law, originating from a single F. I. R. and conviction in excise case based on evidence recorded in customs case‑No objection. however, taken before trial Court‑‑Irregularity if any, held cured, in circumstance.‑[Evidence].

--S . 45-----Expert witness---Conviction based on statements of Customs & Excise official proving recovery of alleged charas from accused persons‑No expert witness examined to prove substance of recovered articles‑‑Conviction and sentence set aside, in circumstance‑Punjab Excise Act (I of 11914), S. 61(1).‑‑[Expert]

Muhammad Jaffar Tarrar for Petitioners.

Ijaz Masood for the State.

Date of hearing : 20th May 1975.

Petitioners Carlus Luch Caleagno and Corge Serret Febright were convicted by Magistrate First Class, Rawalpindi, under section 61(1) of the Punjab Excise Act, 1914 and sentenced to pay a fine of Rs. 1,000 each or in default to undergo one year s R.I. Their appeal before the learned Sessions .Judge having failed on 7-8-1974 they have invoked the revisional jurisdiction of this court against their Conviction and sentence.

2. The petitioners are foreigners and it is stated by their counsel that they deposited the fine and have left the country.

3. The case against the petitioners relates to the recovery from their possession of certain quantities of charas in course of their search on 13-7‑1973, at 12‑45 midnight, at Islamabad, Airport. The charas was concealed under the soles of their shoes and in the bags which they were carrying. The petitioners during the trial denied the recoveries and pleaded not guilty to the charge.

4. It is submitted by learned counsel for the petitioners that one F. I. R. had been lodged in respect of two offences, one under the custom, Act and the other under the Excise Act, but two challans had been submitted, and consequently two cases had been processed in the trial Court, that the petitioner had been discharged in the trial under the Custom Act but the evidence which had been recorded in that case was brought on the file of the Excise Act, case and that on the basis of that evidence the petitioners were convicted, it is therefore, contended that the procedure as adopted was illegal and completely vitiated trial. In support of this, reference has been made to the proceedings sheet of the trial Court dated 4‑12‑1973 which reads :

I, however, find no material to hold that the evidence upon which Conviction has been based had been recorded in the Customs Act case and not in the Excise Act case, Moreover, no objection had, admittedly, been taken before the trial Court, I also do not find that the irregularity, Mi any, had caused any prejudice to the petitioners. In the circumstances, the irregularity if any should be deemed cured.

5. The next contention is that there was no proper proof that' the article recovered from the petitioners was charas. Learned counsel for the state is unable to point out that any person had been examined whose opinion about the substance of the recovered article could be safely relied upon. The witnesses of recovery are Customs/Excise officials and it cannot be said that they have the expert knowledge what is chorus. In these circumstances, the prosecution case cannot be held to have been established beyond every reasonable doubt. The conviction of the petitioners and the consequential sentence awarded to them are therefore, set aside, and they are acquitted. The fines, if any already realized, shall be refunded to them.

Revision petition accepted.

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