1982 P Cr (PLP)

2. It is alleged by the prosecution that the petitioner who was holding an authorisation of a depot indulged in overcharging and black-marketing of ration wheat (Atta) on 20th February, 1978 at 2. 30 p. m. at Mujahidabad, Lahore. He was found to be overcharging .06 paisas per killo of Atta when he was checked by Abdul Basit Suhail, Magistrate. The said Magistrate was a Member of Martial Law Inspection Team. Formal F. I. R. No. 94 of 1978 Exh. L/I was registered against the petitioner on 20th February, 1978 at Police Station. Mughalpura, on the basis of a complaint Exh. L filed by Abdul Basit Suhail Magistrate, P. W. 4.

3. Prosecution produced Basbir Ahmad Sub-Inspector, P. W. 1, Abdul Hamid, P. W. 2, Haroon Khan, P. W. 3, Abdul Basit Suhail Magistrate, P. W. 4 and Major Muhammad Arif Hamid, P. W. 5.

4. The accused denied the allegations against him. He vehemently denied that he ever overcharged from the customers or that he indulged in black-marketing. He produced two witnesses in his defence. Muhammad Waheed, D. W. 1, stated that the people of Mohallah had no complaint whatever against the petitioner for not issuing Atta to them in time or for overcharging from them. Muhammad Arshad, D. W. 2, stated that he had been getting ration in time from the depot of the petitioner and that he had no complaint against him.

5. Bashir Ahmad Sub-Inspector, P. W. 1, had registered the formal F. I. R. Exh. L/I on the basis of the report Exh. L received by him from Abdul Basit Suhail Magistrate, P. W. He investigated the case. He stated that the petitioner was selling Atta at Re. I per killo instead of .94 paisas per killo. He however, admitted in answer to a Court question that he did not check the entries in the Ration Cards. He further admitted that he did not check any record of the accused/petitioner. Abdul Hamid, P. W. 2, stated that 4/5 days before the occurrence his mother had gone to depot of the petitioner and asked him to give Atta to her on her Ration Card. He stated that the accused had Atta in stock but he did not give the same to his mother. He stated that the Magistrate and an Army Officer raided the depot on 12 Rabi-ul- Awwal and registered the present case against him. In the cross examination he admitted that he had not gone himself to get the Atta. He further admitted that there was no shortage of Atta in those days. He expressed his ignorance about the working hours of the depot. The testimony of this witness is of no value to the prosecution because on the one hand he accuses the petitioner of not delivering the Atta to the customers and Ration Card holders yet at the same he admits that he himself never goes to the depot to get the Atta. He does not know the working hours of the said depot. In answer to a Court question he admitted that he did not know the rate on which Atta was being sold. His entire testimony is hearsay and consequently not worthy of any credence. Haroon Khan, P. W. 3, lives in the same Mohallah. He stated that one day he himself went to the depot of the petitioner to get Atta on his Ration Card but the petitioner refused to give him the same. He further added that he heard that the petitioner used to dispose of Atta in black market. However, in answer to a Court question he demolished the entire case of the prosecution and stated that the petitioner used to charge .94 paisas per killo from him as the price of Atta. This was the price fixed by the Food Department. Thus the petitioner was not overcharging. Abdul Basit Suhail Magistrate, P. W. 4, stated that he raided the said depot of the petitioner on 20th February, 1978 at 12 noon. He was accompanied by Major Muhammad Arif Hashmi, P. W.

5. He checked six Ration Cards and it transpired that the petitioner had not issued the quota of Atta for the week commencing from 12th of February, 1978 to 18th February, 1978. . The complainants/people gathered near the depot also told him that the petitioner was selling Atta at Re. 1 per killo as against the control price of .94 paisas per killo. The accused was arrested at the spot and the present case was registered against him. During cross-examination he admitted that he checked the record of the depot-holder petitioner but he could not produce the complete record as the same was not available with him. Thus the contentions of the statement of this witness cannot be verified from the record which was seized by him from the depot of the petitioner. He had not mentioned about the non-availability of the Sale Register in his complaint. He also did not record in his complaint that the petitioner failed to produce the Inspection Book. He admitted that he did not know about the details of Sugar and Atta of the Ration Card holders. He had not produced any document to show that the petitioner was overcharging or was indulging in the black-marketing of Atta (flour). Major Muhammad Arif Hashmi, P. W. 5, was accompanying the Magistrate at the time the depot was raided. He stated that he had taken six Ration Cards from the complainants of the said depot and the entries in these Ration Cards showed that the Atta (flour) was not issued to the Ration Card holders. According to him these Ration Cards were handed over to the police. These six Ration Cards, however, bad trot beers proved on the record. They had not been placed on the file of this case nor exhibited. This witness also admitted during cross examination that he did not remember that he wrote the complaints of the people in the Inspection Book which was kept with the depot-holder. He also admitted that at the time of the raid the petitioner/depot-holder had not finalized his account.

6. Record of the case had been produced by Mr. Khalil- ur-Rahman Ramdey, learned Assistant Advocate-General, and the same was perused with the help of the learned counsel for the parties and arguments heard.

7. The petitioner was charged for overcharging and black-marketing of wheat-flour (Atta). It was alleged that he was selling Atta at the rat of Re. 1 per killo as against the fixed price of .94 paisas per killo. The prosecution has failed to establish its case of overcharging or black-marketing against the petitioner. Bashir Ahmad Sub-Inspector, P. W. 1. the Investigation Officer stated that the petitioner was selling Atta at Re. 1 per killo as against -94 paisas per killo. He, however, admitted in cross-examination that he did not check the entries in the Ration Card. and that he did not check any record of the petitioner. Abdul Hamid has levelled vague allegations of overcharging against the petitioner. He however, admitted during crossexamination that he never went himself to get the Atta. His information was based on mere hearsay. Haroon Khan, P. W. 3, in the first instance stated that the petitioner used to sell Atta in black-marketing but in answer to a Court question, he demolished the entire case of the prosecution by saying that the petitioner used to charge '94 paisas per killo from him as price of Atta. Abdul Basit Magistrate, P. W. 4, and Major Muhammad Arif Hashmi, P. W. 5, stated A that they verified six Ration Cards of complainants who had not been issued any quota of Atta for the period from 12th February, 1978 to 18tb February, 1978 and that these complainants also told them that the petitioner was overcharging at the rate of -06 paisas per killo. The record of the petitioner's depot which was checked by these witnesses is not forthcoming. Even the six Ration Cards allegedly recovered from the complainant are not on the record of this case although according to the statement of Major Muhammad Arif, P. W. 5, these Ration Cards were given to the Police. Thus there is nothing on the record to connect the petitioner with the crime. Black-marketing is not a term of art. It means selling of goods in the market at a price other than that which have been fixed by the authorities. As narrated above prosecution has failed to bring home this charge to the petitioner.

8. In view of the above discussion I hold that this is a case of n evidence and that the prosecution has failed to establish its case against the petitioner. His conviction and sentence is set aside. This writ petition is accepted. There would be no order as to costs. Petition accpted.