P L D 1980 Lahore 299 (PLP)

The petitioner was convicted by Summary Military Court No. 15, Bahawalpur for an offence under M. L. R. No. 30 for selling adulterated petrol and was sentenced to a period of 6 , months' R. 1. and a fine of Rs. 15,

000. Hence this petition.

2. F. I. R. No. 110 was registered in Police Station, Civil Lines, Bahawalpur on 19-4-1979 on the basis of a complaint made by Major Ehsanur Rehman Khan of D. M. L. A's Headquarter, Bahawalpur that on laboratory test of the super gasoline, sample of which was obtained from the Petitioner's petrol pump it was found that 15 % kerosene eras mixed with the gasoline. The petitioner was arrested and tried under M. L. R. No. 30.

3. At the trial the prosecution examined Mr. Mansoor Ahmad Bajwa Magistrate 1st Class, Bahawalpur who had raided the petrol pump of the petitioner and obtained a sample from there, Mr. Shamasul Hassan who had delivered one of the two samples to the testing laboratory and Mr. Muhammad Ashraf, an officer of Hydrocarbon Development Institute of Pakistan, Islamabad who conducted the laboratory test. The petitioner on the other hand examined one defence witness Mr. Taj Muhammad Paracha. According to him there had never been any complaint of adulteration against the petitioner.

4. The learned counsel for the petitioner submitted arguments about misappreciation or improper appreciation of the evidence by the Military Court, but none of those argument can be taken into consideration in a petition under Article 199 of the Constitution since it is not the function of this Court to reappraise the evidence produced and acted upon by that Court. While exercising the extraordinary jurisdiction this Court can neither act as an appellate Court nor can substitute itself for the Court which passed the order.

5. Two arguments, however, may be noticed. One of these two is that the Court has failed to record in the statement of Mr. Taj Muhammad Paracha that "some drivers of the oil tankers who supply gasoline to the Service Stations some times mix a powder in the tank which makes it impossible to conduct a check".

6. This argument is without force since a presumption of correctness attaches to the record: There is no reason why the Military Court should suppress the statement made by the witness. The case of the petitioner is that the petrol was not adulterated. Alternatively he has suggested that the drivers bringing the petrol in their oil tankers might have made the, adulteration. The above statement which is attributed to the defence witness is relied upon to prove the involvement of the drivers of the petrol tankers in the adulteration of the petrol. But this could not have been stated by the witness who had said that the petitioner had the necessary gadget for testing the petrol brought by the oil tankers. This would negative the possibility of the adulteration, if any, made by drivers to go undiscovered. It is for this reason that this incorrect allegation has been made so as to reduce the damage which that statement might cause to the petitioner's case.

7. The second argument is based on allegations of mala fides against Major Ghulam Murtaza but it is clear that the complaint in this case was made by Major Ehsanur Rahman Khan and the sample was taken in a usual raid on at least two Service Stations by Mr. Mansoor Ahmad Bajwa, Magistrate 1st Class, Bahawalpur. In his evidence Mr. Mansoor Ahmad Bajwa denied that the sample was taken at the instance of Major Ghulam Murtaza. In these circumstances it is not believable that anything was omitted from the record or that the prosecution was mala fide. ?

8. The last argument is based upon rule 153 of the Petroleum Rules, 1937, which deals with the manner in which samples are to be taken, inter alia for detection of adulteration. According to this Rule the container should be closed with a cork and should be sealed with melted wax. Admittedly in this case neither the cork was applied nor the container was sealed with melted wax. , It was, therefore, argued that this being a mandatory provision of the Rules, the omission of it would vitiate the trial. Various cases were referred to in this connection.

9. It was held in Alif Gul v. The State (1), that the provision of section 20 regarding dividing of food seized into 3 parts and about marking each part was mandatory and not directory. In the absence of any `mark' or 'label' the judicial conscience of the Court would be left unsatisfied in the absence of sufficient certainty to regard it as 'proved' that any particular specimen taken from a particular individual sent to the analyst and found by him to be deficient in some respect was in fact the very specimen alleged to have been taken or seized from that individual. It was, therefore, held that the conviction could not be sustained for non-observance of the mandatory provisions of section 20. (1) P L D 1964 Pesh. 45

10. In Additional Advocate-General, West Pakistan . v. Rajab and others (1), it was observed that rule 39 of the West Pakistan Pure. Food Rules, no doubt lays down the procedure for seizure of unsound food and not when sample of food or ghee is obtained by a Food Inspector. Nevertheless the principle of this rule could apply when sample of food or ghee is obtained by a Food Inspector. It was stressed that the samples should be obtained in presence of mashirs and should be sealed in presence of the parties concerned.

11. Another case is Ghulam Muhammad v. The State (2), in which it was held that sample for finding out adulteration in milk should be of the same weight as provided by the West Pakistan Pure Food Rules, 1965. Reliance was placed for this purpose on Ghulam Muhammad v. State (3).

12. Another case in the same report is Sakandar v. The State (4), in which the conviction was set aside. since the. sample of milk was not taken in the presence of two respectable persons as required by rule

39. Another case in the same volume is ,Ejaz Ahmad v. The State (5), in which the conviction was set aside on the ground that the recovery memo. showing seizure of unsound foodstuff was neither brought on record of the case nor attested by any witness. .

13. The only case that has some bearing on this matter is Alif Gul v. The State which is based upon the ground that the judicial conscience of the Court would be left unsatisfied in the absence of sufficient certainty to regard it as proved that any particular specimen taken from a particular, individual sent to the analyst and found by him to be deficient in some respect was in fact the very specimen alleged to have been taken or seized from that individual. The other cases are those in which either the evidence was disbelieved on account of their being no mashirs or reliable witnesses or on the ground that sufficient quantity of the food required to be tested was not taken as specimen for the purpose of test.

14. There is one other case which requires reference. It is Muhammad Hussain v. The Crown (6), in which the Public Analyst failed to carry out a particular test known as Phytosteryl Acetate test. It was held that it was .merely an irregularity not affecting conviction although in the relevant provision it was said that the Analyst must conduct this test to come to a decision about the purity of the sample..

15. It is not the case of the petitioner that the sample taken from his petrol pump was tampered with. A feeble attempt was made to argue that if the sample container had been duly corked and sealed with wax the petrol contents would not have evaporated. But this argument is without force since it is not the case of the petitioner that kerosene is a part of petrol and after evaporation only the kerosene is likely to be left in the container. (1).P L D 1967 Kar. 277 ?????????? (2) 1977 P Cr. L J 53 (3) P L D 1976 Lah. 720 ?????????? .(4) 1977 P Cr. L J 81

16. According to the Peshawar case also the emphasis on adoption of a particular method of sealing the sample is only to ensure that the same sample reaches the analyst. If in a given case it is found that the sample taken was received by the analyst without being tampered with, I do not see how the irregularity in the corking or sealing can affect the result of the test. In Muhammad Hussain v. The Crown the absence of a particular test which was directed to be carried out in a mandatory language was held to be only an irregularity. In the circumstances when the sealing and cork kind of the container is only to ensure that the sample really taken reaches they Testing Authorities, omission to do so will be reduced to a mere irregularity if once it is held that the same container reached the said authorities and was never tampered with.

17. I, therefore, do not find any ground to interfere with the order of the Military Court and dismiss this petition. s. Q. Petition dismissed.