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Criminal Revision Application No. 150 of 1980, decided on 15th November, 1982.

---Ss. 6(1)(a) & (c) & 23--Criminal Procedure Code (V of 1.898), Ss439 & 342--Revision-'-Accused in his statement under section .342, criminal Procedure Code, 1898; 'before' trial' Court admitting case of prosecution and stating that KHOYA seized' was meant for preparing sweetmeat of customers--Finding of Courts below regarding conviction of accused based on -cogent reasons---Conviction maintained.

__ Ss. 6(1')(a) & (c) & 23--Criminal 'Procedure Code(V of 1898) S.439--Conviction--Sentence--Accused facing, trial for long time 'And also remaining in custody----Sentence of imprisonment reduced to one already undergone.--[Sentence].

I. I. Suleman for Appellant.

Raja Qureshi for the State.

Date of hearing: 11th November, 1982

The applicant abovenamed being aggrieved by judgment; dated 17th September, 1980 of the learned IInd Addl. Sessions Judge, Karachi, in Criminal Appeal No. 491-79 by which, while dismissing the said appeal the learned IInd Additional: Sessions. Judge,": Karachi confirmed the judgment, dated 30th April 1979 in the Criminal Cease No;. ;437/76 of the Learned, K.M.C.. Magistrate Karachi East, by whiter applicant has been convicted under section 6(1)(a) & (c) read with Section ,23 of the West Pakistan Pure Food Ordinance 1960 and sentenced to suffer R. I, for one year and to pay fine .of Rs:1,000 or in .default to suffer further R. I for three months, has preferred the, above petition on the following facts and ground.

2. Briefly the prosecution case as given in the impugned judgement dated 30-4-1979 is that on 26th July, 1976 at about 2.15 p.m P.W, Amir Muhammad Khan; Food Inspector K.M.C. visited the shop namely "Sikandar Sweetmeat Mart" ,and purchased 1 paws Khoya at Rs. 3.75 as sample from the appellant; who is the owner seller. After completion of all formalities of dividing the said Khoya "and labelling and sealing and preparing Mashirnama in the presence of mashirnama Muhammad Ashraf and Lala. Khan he sent, the sample of Khoya alongwith Form V to the public analyst who certified it to be non-genuine. As such complaint was filed by Doctor Jamil Ahmed Asstt Health: Officer, K.M.C. on 26-8-1976.

3. Formal charge of the above-mentioned offence was read over, ,and explained to the applicant; for which he pleaded not guilty.

4. At the trial prosecution had examined P.W. Amir Muhammad-Khan, Food Inspector, K.M.C Exh.2, who, produced complaint as Exh 2/A report of public analyst Exh.2/B- Declaration form, Exh 2/c Form V Exh.2/D and Mashirnama Exh 2/E P.W. Muhammad Ashraf the Manshir was examined Exh. 3.

5. Vide ''EXh.4' the Statement of applicant has been recorded under section 342, Cr.P.C., before lower Court, whereby he had admitted the case of prosecution as far as seizure of Khoya was concerned. He has further stated that Khoya in this, case was not meant for sale by him but it was meant for preparing of sweetmeat of the customer. In defence he has examined P.W. Abdul Wahid Exh.5.

6. Both the learned lower Courts taking, into Consideration the evidence adduced by the prosecution convicted and sentenced the applicant as hereinbefore mentioned and hence roe applicant has preferred the above petition on the grounds mentioned in the memo of petition.

7. The learned Advocate for the' applicant in support of the above application submitted as under:

(a) That the Mashirs were K.M.C. employees and no independent Mashir was examined by the prosecution.

(b) That rule 39 of the West Pakistan Pure Food Ordinance, 1960 has been violated.

(c) That the offence is dated 26^th July 1976 and the applicant had to face trial right Upto 30^th April 1979 when the learned K.M.C. Magistrate first class convicted the applicant.

8. Keeping in view all these admitted Position on record the learned Advocate for the applicant submitted, that the sentence awarded to the applicant is rather harsh as applicant is said to have committed a technical offence in support of the above contention the learned Advocate for the applicant relied upon cases 1980 PCr.L.J 985 and PLD 1967 Kar 277.

9. The learned Advocate appearing for the State on the other hand submitted that, he supports both the impugned judgments of the learned lower Courts as they are based on cogent reason, after due appraisal of the evidence adduced by the prosecution.

10. I have taken into consideration the above submission made by the learned Advocates, before me and have gone through R & P of the learned trial court as well as through both the judgments of the learned lower Courts First two Contentions urged by the learned Advocate for the applicant have no force in the, face of the statement of applicant under section 342, Cr.P.C., made before the learned trial Court and as such I see no reason to disagree with the conclusions and findings of both the learned trial Courts, as they are based on cogent reasons:

11. However, last contention of the learned Advocate for the applicant A requires consideration, as applicant was first time convicted on 30^th April, 1979, though the ,offence relates to 26th July,. 1976. The applicant filed the Above petition on 24th September, 1980,and was granted bail by this Court on 10th November; 1980 and consequently he remained in custody from 17th September; 1980after the' dismissal of his appeal upto 10th November; 1980 according, to the records of the above application. The learned Appellate; Court did not reduce the sentences awarded to the applicant as it was under the imprison that the applicant Was ,given minimum sentences as required by the sind Amendment 'Act 9 of 1979. I have Careful gone through the Pure' Food Ordinance 1960, and do not find such amendment in section 23. keeping view the length of time of the trial faced by the Applicant, in my opinion, ends, of justice will be met if the sentence of imprisonment awarded to the Applicant is reduced from one year to a period already undergone by him

14. Therefore while dismissing the above petition on merits reduce the Sentence of imprisonment awarded to 'the applicant from one year, to period already undergone by him and maintain the fine of Rs.1,000 imposed by judgment, dated 30th April, 1979 of the learned trial Court and confirmed by the learned Appellate Court and' in case applicant fails to pay the said fine, I direct he should Suffer further R'.1. for three months: The applicant is allowed two weeks time to pay the fine imposed on him failing Which the learned trial Court is directed to Issue non bailable warrant for his arrest on his arrest to remand him to judicial custody to serve out the 'sentence in lieu of fine. The above petition stands disposed, of in the terms of this case.

M.H.Y. Petition dismissed.

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