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Criminal Revision No. 372 of 1966, decided on 29th June 1976.

--- S. 61----Conviction, propriety of----Contention that conviction could not be lawfully based on oral evidence of witnesses without getting stuff allegedly lahan examined chemically nor drums con taining lahan could be exhibited without producing before trial Court-Contention, held, not devoid of force-Infirmities, held further, not curable under law-Conviction and sentence, set aside, in circumstances.

Muhammad Sharif for Petitioner.

Mehr Ghulam Ali Mubashir for the State.

Date of hearing: 29th June 1976.

Muhammad Ashraf was convicted and sentenced to one year's R. I. under section 61/1/14 of the Excise Act, vide Judgment of the learned Magistrate First Class Lahore, dated 31-3-1966. His appeal before the learned Additional Sessions Judge, Lahore, was dismissed on 30-2-66 and his conviction and sentence was maintained.

2. Hence this revision petition, which was admitted by the order of this Court dated 12th May, 1966 and the petitioner was released on bail by a subsequent order dated 25-7-66.

3. Learned counsel for the petitioner has assailed the judgments of both the Courts below on the following grounds: -

(i) That the learned Additional Sessions Judge has accepted in paragraph No. 8 of his judgment that lahan was not got chemically examined. He has shown his apprehension as to why it was not done so;

(ii) that the drums contained lahan were exhibited without being produced before the learned trial Magistrate, therefore, this non-production of these incriminating articles before the trial Court, has prejudiced the case of the petitioner.

Learned counsel after raising these contention has submitted that these two infirmities in the prosecution case entitle the petitioner to acquittal.

4. I have given my anxious thought to these contentions and find that they are not fully devoid of force. Unless and until it was found that the incriminating material (Lahan) was actually a lahan or not, the case of the prosecution would not succeed. Under the law the petitioner was forbidden to keep lahan and that could only be proved by chemical examination of the stuff and not by oral evidence of the witnesses. This lapse on the part of the prosecution goes to the very root of the case. Similarly the learned trial Court was not permitted to exhibit an article, which was not before it. In the instant case this fact stands proved from the record, therefore, this point also goes in favour of the defence. As these two infirmities are not curable under the law, the judgment of the learned Additional Sessions Judge, cannot be maintained.

5. The result is that I accept the revision petition, set aside the convic tion and sentence, of the petitioner and acquit him. The petitioner is on bail, he will stand discharged of his bail bonds

Revision allowed.

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