2004 PLP 2306 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

Through this appeal Faisal Abbas-appellant has challenged his conviction and sentence recorded by the Chairman and Member of the Drug Court, Bahawalpur Division, Bahawalpur, vide judgment dated 15-9-2003, whereby the appellant was convicted for offences under sections 23(1)(c) and 23(1)(i) of the Drugs Act, 1976, and sentenced to six months rigorous imprisonment. Fine of Rs.50,000 was also imposed upon the appellant. In default thereof the appellant was to undergo further simple imprisonment for one month.

2. On 18-7-2000, the Provincial Drug Inspector, Bahawalpur, raided 'Allah Shafi Clinic', situated in the Main Bazzar, Samma Satta, Tehsil. and District Bahawalpur, and collected various injections, tablets and capsules, which were taken into possession vide Mark-A in the presence of Faisal Abbas-appellant. The Inspector referred the matter to the Chairman, Provincial Quality Control Board, Government of Punjab, seeking permission for prosecution and the custody of the drugs. The allegations leveled against the appellant were that the drugs were being sold (i) without drug sale license,. (ii) without warranties, (iii) the drugs were misbranded, and (iv) veterinary drugs used on human beings. After grant of permission the matter was sent to the Drug Court. On 25-9-2002 the learned Drug Court framed the charges under the following heads:- (1) Sale of drugs without drug sale license. (2) Misbranded drugs. (3) Veterinary medicine for human use. On the same day i.e. 25-9-2002, the appellant denied the charge and pleaded not guilty, therefore, the trial commenced. On 9-6-2003 the learned Drug Court recorded the confessional statement of the appellant on Oath, which is being reproduced for ready reference: On the basis of the afore-referred confessional statement of the appellant", the learned Drug Court convicted and sentenced the appellant.

3. The learned counsel for the appellant has argued that the confession of the appellant having been recorded on Oath was inadmissible in evidence; and that even if every word of the confession is believed yet the offences described in the charge are not proved against the appellant.

4. The learned counsel appealing on behalf of the State tried to justify the judgment.

5. We have heard the learned counsel for the parties at length and also gone through the entire record of the case. We have noticed that according to order dated 9-6-2003 the accused had submitted his statement and it is nowhere recorded in the order that the confessional statement of the accused was recorded on the said date. Perusal of the afore-mentioned order further reveals that the case was adjourned and was fixed for prosecution evidence for 7-7-2003 and the P. Ws. were summoned for the said date. Thereafter, the case was adjourned for some dates and the judgment was recorded on 15-9-2003. The learned Drug Court has mentioned in the judgment that the appellant had confessed that "he used to sell medicines to the patients". Perusal of the confessional statement, which has been reproduced above, clearly shows that the appellant had never confessed that he used to sell any drug to the patients. He simply stated that he used to open the shop in the absence of Dr. Humayon Shahzad (proprietor of the, Clinic). The charges against the appellant, as mentioned above, i.e. selling of drugs without drug license, misbranded drugs and use of veterinary drugs on human beings, were never admitted by the appellant in his statement. Nothing could be presumed against the appellant, which he had not confessed. It has also been noticed by us that Mark-A dated 18-7-2000, whereby the drugs were seized by the Inspector also) contains the statement of the appellant, which is also reproduced for ready reference:

6. We have further noticed that the learned Drug Court has dealt wall the case in a cursory manner, as is evident not only from the facts mentioned above but also from the fact that the appellant has been convicted for offences under sec tions 23(1)(c) and 23(1)(i). The mere look at the provisions of Drugs Act would reveal that section 23 dealt with the definition and conviction could be recorded only under the provisions of section 27 of the Drugs Act.

7. During the hearing of the case, we felt it necessary to call Syed Kazim Raza Shamsi, Chairman, Drug Court, Bahawalpur, to explain his position, who appeared on Court's call and when confronted with the above mentioned facts, he assured the Court that he would be very careful in future.

8. For what has been discussed above, we are of the firm opinion that the prosecution has miserably failed to prove its case against the appellant. Resultantly we allow this appeal, set aside the impugned judgment dated 15-9-2003 and acquit the appellant of the charges. He would be released from Jail forthwith, if not required in any other case. H.B.T./F-40/L Appeal allowed.