2021 P Cr (PLP)

CH. MUSHTAQ AHMAD, J.

Javed Ashraf Khan, petitioner was tried on the charges under sections 18(1), 18(4) of the Punjab Fertilizer Control Order, 1973 amended 2004 by learned Judicial Magistrate Section-30 Gujranwala in case FIR No.163/2009 dated 10.07.2009 registered at Police Station Jinnah Road, District Gujranwala and on conclusion of trial petitioner was convicted and sentenced under Section 6 of the Punjab Essential Articles (Control) Act, 1973 and sentenced to six months simple imprisonment with further direction to pay of Rs.20,000/- or in default thereof to further undergo one month simple imprisonment. Appeal against conviction preferred by petitioner was dismissed by learned Additional Sessions Judge, Gujranwala vide judgment dated 09.06.2020.

2. First Information Report in this case was lodged on the complaint of Dr. Iqbal Ahmed Khan (P W-1) then posted as Deputy District Officer Agriculture Extension. According to FIR on 23.06.2009 at about 12:40 p.m. complainant along with PWs Muhammad Riaz and Muhammad Akram on inspection of Factory Javadan Agro Chemicals, Jinnah Raod Gujranwala, obtained sample of Zinc Sulphate 21%. Two samples were prepared, one sealed sample was sent to Director Soil Fertility Lahore and another sealed sample was handed over to owner. On demanding registration of Zinc Sulphate 21%, petitioner failed to show his registration. A letter was forwarded to Director Soil Fertility Lahore for verification of Javadan Agro Chemicals and it was found that petitioner had no registration. Further alleged that analysis report was received according to which the sample was found unfit.

3. Prosecution in order to prove its case produced four witnesses. Complainant as (PW.1), Muhammad Riaz Helper (PW.2), Muhammad Sabir A.S.I. (P.W.3) and Saif Ullah (PW.4). Statement of accused was recorded under section 342, Cr.P.C. on 07.12.2011. He pleaded not guilty and claimed trial and produced attested copy of (Ex.D.A) in his defence.

4. After hearing learned counsel for petitioner as well as learned Additional Prosecutor General and going through the record it has been noticed that complainant inspected factory along with his team. Complainant (PW-1) in his examination in chief stated that fertilizer analysis report (Ex.PE), reflected 18% zinc sulphate instead of 21%. Complainant (PW.1) further stated in his cross-examination, that he was informed by manager of factory that petitioner was not the owner of said factory. Further stated that although there were some private persons present in the factory but during recovery proceedings no private person was associated with recovery process. He further deposed that he did not know whether something was being purchased or sold in the factory when raid was conducted. Relevant to note here is that, (PW.1) admitted in his cross-examination that samples which were sent for analysis could be affected by wetness in air. During cross-examination, (PW.4), admitted that he had not checked the ownership of factory, whether it was in the name of petitioner or his father. He further stated that factory was closed since last one year. In the above circumstances, nominal difference in zinc sulphate ratio could not be made basis for recording conviction particularly when it was stated by complainant (PW.1) that sample could be affected due to wetness in air. Moreover the word unfit in fertilizer analysis report did not convey as to how and for what reasons the fertilizer was unfit for use. In the given scenario, prosecution evidence was not worthy of reliance.

5. For the reasons recorded above, I am of the view that prosecution had failed to prove charge against petitioner beyond reasonable doubt. Both the courts below have failed to appreciate evidence available on record correctly. In such circumstances, findings of conviction recorded by learned Judicial Magistrate Section-30 and upheld by learned Additional Sessions Judge are not sustainable. Resultantly, instant petition is allowed and petitioner is acquitted from the charge. He is presently on bail, his surety is discharged from the liability. SA/J-2/L Petition allowed.