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Criminal Revision Application No.27 of 1984, decided on 11th November, 1985.

‑‑‑S.23 read with S.5(a)‑‑Evidence, appreciation of‑‑Spoilt tea, found unfit for human consumption, purchased by applicant's father and stored in a godown, under his control‑‑Charge of keeping and storing for sale tea, unfit for human consumption, held, would lie against applicant's father and not against applicant‑‑Conviction and sentence of applicant set aside in circumstances.

Nemo for Applicant.

Akhlaque Ahmed Siddiqui for the State.

Date of hearing: 11th November, 1985.

The applicant Muhammad Arif has preferred this Revision Application against his conviction for an offence punishable under section 23 read with section 5(a) of the West Pakistan Pure Food Ordinance, 1960 and sentence therefor, of rigorous imprisonment for two years' with fine of Rs.5,000 or rigorous imprisonment for six months in default, awarded by the learned Additional City Magistrate, Karachi East, by his judgment, dated 26‑10‑1981, and dismissal of his appeal by the learned IIIrd Additional Sessions Judge, Karachi, by his judgment, dated 2‑4‑1984. Neither the applicant nor his counsel has appeared. The evidence on record and the judgments of the Courts below have been examined with the assistance of Mr. Akhlaque Ahmed Siddiqui, Advocate, who has appeared for the State.

2. The prosecution case against the applicant, briefly stated, is that Mr. S.A. Usman, Food Inspector, K.M.C. visited a godown at Parsi Colony, on 10‑4‑1974, at about 2‑03 p.m. The applicant was found available there. Some tea stock was found stored in the godown. The Food Inspector obtained samples of the tea stock in presence of Muhammad Ashraf, Lal Rahman and Israr Ahmed for chemical examination. The report of the public analyst indicated that the samples did not conform to the required standard of tea fit for human consumption. A complaint was, therefore, filed in the Court of Additional City Magistrate, Karachi, for proceeding against the applicant /accused Muhammad Arif, for having committed an offence punishable under section 5(a) read with section 23 of the West Pakistan Pure Food Ordinance, 1960.

The applicant was tried on the charge of the aforesaid offence. Prosecution examined. Food Inspector, Mr. S.A. Usman, and one Masheer Muhammad Ashraf. The applicant took the plea that the stock of the tea found in the godown was purchased by his father Abdul Aziz from Messrs M.M. Ispahani and it was stored there by his father and he was just available at the godown where the Food Inspector visited it and obtained samples. He was supported by his father Abdul Aziz who gave evidence in defence. Other three witnesses, namely Abdul Hafeez, Anwarul Haque and Saulat Zahid also were examined in defence to show that the tea stock was purchased from Messrs M.M. Isphani by the father of the applicant. The learned trial Magistrate held that the applicant was responsible for the storage of the spoilt tea and the learned Additional Sessions Judge upheld that finding.

It appears from the record that the godown was under the control of the father of the applicant. There is sufficient evidence on the record that tea stock found in the godown was purchased by the father of the applicant. Section 5(a) of the West Pakistan Pure Food Ordinance, 1960, for contravention of which the applicant has been convicted and sentenced, provides that no person shall, directly or indirectly, himself or by any other person, prepare, manufacture, keep or store for sale, sell or offer to sell any food which is unsound, unwholesome, injurious to health or unfit for human consumption. In the instant case, the accusation of keeping or storing for sale the spoilt tea, which was unfit for human consumption as stated above, did not lie against the applicant as the tea was purchased by the father of the applicant and it was stored in the godown which was under the control of the father of the applicant. Therefore, the charge of keeping or storing for sale the tea unfit for human consumption lay against the father of the applicant rather than against the applicant. Accordingly, the learned Courts below have seriously erred in holding the applicant guilty of keeping or storing the spoilt tea. There has been miscarriage of justice in convicting and sentencing the applicant.

Accordingly, the Revision Application is allowed and conviction and the sentence awarded on the applicant are set aside. However, the orders of the trial Court ordering confiscation of the tea stock stands intact.

S. G. D. Revision allowed.

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