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Criminal Appeal No. 230 of 1977, decided on 20th February, 1983.

---S.6(I)(a)(c) read with section 23--Adulterated food--Prosecution case against accused established beyond reasonable doubt by statements of prosecution witnesses and report of Chemical Examiner--No enmity suggested with prosecution witnesses whose statements straightforward and convincing--Defence witness unable to demolish prosecution case or even to create doubt--Conviction maintained.

---S.6--Adulteration--Conviction--Sentence--Case against accused very old and accused on bail since before five years--Sending accused back to custody held not justified after lapse of five years--Sentence of imprison ment reduced to one already undergone.--[Sentence].

P L D 1974 S C 46; P L D 1978 Lah. 962; 1976 S C M R 354 and 1973 P Cr. L J 797 ref.

Faizuddin for Appellant. Murtaza Hussain for the State. Date of hearing: 16th February, 1983.

Appellant abovenamed being aggrieved by judgment dated 29th September, 1977 of learned Ist Additional District a Sessions Judge, Karachi, in Sessions Case No.88/74, whereby appellant has been convicted under section 6(1)(a)(c) read with section 23 of West Pakistan Pure Food Ordinance, 1960, and sentenced to suffer R.I. for one year and fine of Rs. 1,000 or in default to suffer further R.I. for two months, has preferred the above appeal, on facts on the grounds mentioned in memo of appeal.

The prosecution had examined Amir Muhammad Khan (P.1) Exh.4 and Sajjad Ali (P.W.2), Exh. 15 to prove the case against the appellant. The statement under section 342, Cr. P.C. of the appellant had been ordered Exh. 16, wherein the appellant has not denied the occurrence. Furthermore, he has admitted to have signed on the labels and on the Declaration Form prepared by the K.M.C. Food Inspector during the investigation of the case. However, the appellant had examined Maqbool art (D.W.1) Exh. 17 in support of his defence case.

The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently appellant has preferred the above appeal, on the grounds mentioned in the memo of appeal.

Appellant's Advocate, who is practising Advocate of this Court was called absent and since this appeal is pending from 1977, I decided to hear the same, with assistance of the learned Advocate for the State.

The learned Advocate for the State took me through the R & P of the learned trial Court and impugned judgment and submitted that prose cution has established its case beyond reasonable doubt against the appellant by statements of P.Ws, against whom no enmity is alleged. However he submitted, that taking into consideration the fact, that appellant was released on bail on 8th October, 1977, interest of justice would be met, if the sentence of imprisonment awarded to him is reduced to one already undergone by him and sentence of fine is maintained. In support of this contention, the learned Advocate for the State relied upon cases reported in P L D 1974 S C 46; P L D 1978 Lah. 962; 1976 SCMR 354 and 1973 P Cr. L J 797.

I have carefully considered the above submissions made by the learned Advocate for the State and have gone through R 8 P of the learned trial Court very carefully and impugned judgment.

In my opinion prosecution has established its case beyond reasonable doubt against appellant by statements of P.Ws. Amir Muhammad Khan and P.W. Sajid Ali (Mashir), as well as by Chemical Examiner's reports. Appellant, while cross-examining these P.Ws. before the learned trial Court did not suggest any enmity with these P.Ws. I also find their statements straightforward and convincing. D.W. Maqbul Bari in my opinion a has not in any way demolished and/or created even doubt about prosecution case. P.W. Amir Muhammad Khan in his statement has clearly stated, that independent persons, who were available in canteen refused to act is Mashirs and as such he had no alternative but to make P.W. Sajid Ali, as Mashir. In view of this, I see no reason to disagree with the conclusions and findings of the learned trial Court.

However, I agree with the contention of the learned Advocate for the State, that ends of justice would be met, if sentence of imprisonment awarded to appellant is reduced from one year to the period already undergone by the appellant, as it is old case of 1973 and appellant was granted bail on 8th October, 1977 and had faced trial for really five ,ears and as such, to remand him back to custody will not be justified, after lapse of nearly 5 years.

Therefore while dismissing above appeal on merit, I maintain the conviction of the appellant, but reduce the sentence of imprisonment awarded to him by impugned judgment from one year to one already undergone by him and maintain the fine of Rs. 1,000 imposed on the appellant, by impugned judgment, and in default of payment of fine to suffer R.I. for two months. I grant time of three weeks to appellant from today to pay fine imposed on him and in case of his failure, I direct the learned trial Court to issue non-bailable warrants for arrest of the appellant and on his arrest to remand him back to judicial custody to serve out sentence awarded to him, in lieu of non-payment of fine only.

M.Y.H. Appeal dismissed.

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