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Criminal Appeal No. 15‑P of 1978, decided on 27th October, 1985.
(On appeal from judgment and order of the Peshawar High Court, dated 27th April, 1978 in Criminal Petition No. 4 of 1978).
‑‑‑Art. 185(3)‑‑West Pakistan Foodstuffs (Control) Act (XX of 1958), S.3/6‑‑Leave to appeal granted to consider as to whether conviction could be maintained in absence of documentary evidence which was crucial in determining shortages of sugar and Atta for which accused depot‑holder was charged.
‑‑‑S. 3/6‑‑Shortage‑‑Accused depot‑holder charged for shortage of Sugar and Atta‑‑Neither stock register nor other documentary evidence produced to establish actual shortage‑‑Ambiguity existing as to exact weight of stock found on physical verification by Food Inspector‑‑Accused not questioned about shortage while being examined under S. 342, Criminal Procedure Code‑‑Only oral and unsubstantiated evidence available in case and no credible documentary evidence existing to establish actual shortage‑‑Conviction and sentence of accused set aside.
Nur Ahmad Khan, Advocate‑on‑Record (absent) for Appellant. S. Ibne Ali, Additional Advocate‑General, N.‑W.F.P. with M, Qasim Imam, Advocate‑on‑Record (absent) for the State.
Date of hearing: 27th October, 1985.
‑‑The appellant who was a Depot‑holder was charged for shortages of sugar and Atta upon a verification of these items with the balances in the stock register, and convicted under sections 3/6 of the West Pakistan Food Stuffs (Control) Act, 1958, and sentenced to pay a fine of Rs.1,000 or in default to undergo rigorous imprisonment for three months. His appeal against the conviction was dismissed by the Additional Sessions Judge, Nowshera, on 12th of September, 1977, and the revision in the High Court also failed as that too was dismissed on 26th of April, 1978.
Leave to appeal was, accordingly, granted to consider as to whether the conviction could be maintained in the absence of documentary evidence which was crucial in determining the shortages.
As the counsel for the appellant was absent, the learned Additional Advocate‑General, N.‑W.F.P., took us through the record. Our examination revealed that neither the stock register nor other documentary evidence was produced to establish the actual shortages. Additionally, as the stock was physically removed by the Food Inspector there was another ambiguity as to the exact weight of the stock as found on physical verification. This is not all, the appellant was not also questioned about the shortages of Atta while being examined under section 342, Cr.P.C. hence the appellant was not allowed an opportunity to explain this piece of evidence against him. There was only oral evidence which was unsubstantiated. In such a case it is not possible to rely on the ipsi dixit of the Food Inspector without there being credible documentary evidence to establish the actual shortages. The learned Additional Advocate‑General was unable to satisfy us that this was a case where conviction could be maintained.
Accordingly, we would allow the appeal, set aside the conviction and sentence and order that the fine, if realised, shall be remitted to the appellant.
M. Y. H. Appeal accepted.
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