1986 P Cr (PLP)

AJMAL MIAN, J.‑‑This is an appeal against the judgment dated 26th October, 1982 passed by the Drug Court for Sind and Baluchistan at Karachi in Case No. 7 of 1981 convicting the appellant under section 27(4) of the Drug Act, 1976 and sentencing him to undergo imprisonment till rising of the Court and to pay a sum of Rs.5,000 as fine or in default to further undergo S.I. for six months. The learned Drug Court has also ordered the prosecution of the appellant under section 471, P.P.C. read with section 476, Cr.P.C. for the alleged use of two forged documents Exhs. 16 and 17 in the above judicial proceedings. The appellant being aggrieved by the above judgment has filed the present appeal.

2. The brief facts leading to the filing of the above appeal are that one Altaf Hussain Hakro, Inspector of drug posted at Hyderabad upon receipt of a letter from the Ministry of Health, through the District Health Officer visited the appellant's hospital and asked him to produce the proper sanction for causing the publication of an advertise ment in the daily Sindhi newspaper Aftab, dated 14th April, 1980 for the treatment of diseases mentioned therein and also for causing the distribution of pamphlet contained in the souvenir of a Drama society containing similar advertisement. It is the case of the prosecution that the appellant failed to produce the requisite sanction and, therefore, after obtaining the requisite sanction a ease was lodged against the appellant in the Drug Court. It may be observed that the appellant was charged on 13‑8‑1981 and the charge is contained in Exh.1which reads as follows:‑ "You accused S. M. A.A. Kharal are charged as under that you are running a hospital in the name of Sind Hospital in Gari Khata, Hyderabad and have advertised your hospital and treatment of disease in the daily Aftab dated 14th April, 1980 and have distributed a pamphlet without having any approval from the competent authority thereby you have contravened the provisions of section 24(iii) of the Drugs Act, 1976 which is an offence punishable under section 27(4) of the said Act within cognizance of this Court and we hereby direct that you be tried by this Court on the said charges." 3(a). The prosecution in support of its case examined aforesaid Inspector Altaf Hussain Hakro Exh.3 and Sabihuddin Ahmed, Deputy Drug Controller Health, Islamabad Exh.23 and also produced certain documents including above pamphlet and a copy of the above newspaper Exhs.5 and 6, respectively. 3(b). On the other hand the appellant in his 342, Cr.P.C. statement denied the factum of having caused the publication of the above advertisement in daily Aftab or causing the publication of above pamphlet. In defence the appellant examined Mahmood Ayaz Exh.34.

4. It may be observed that Mahmood Ayaz in his deposition has stated that at the relevant time he was one of the office‑bearer of the Drama Society. The above Society issued a souvenir which contain the alleged advertisement given by the appellant i.e. the pamphlet Exh.6. He has deposed that factually the above, advertisement was given by one Dr. Zafar and not by the appellant in order to establish, the factum that he was one of the office‑bearer, tie produced certain pages of the souvenir which inter alia contained the photograph aforesaid witness Mahmood Ayaz. The learned Drug Court on the evidence, of the above witness observed that but even if we accept his statement as true for the sake of argument, still there is no explanation for the advertisement in the daily Aftab which is Exh.5." The prosecution did not examine any witness from the office of daily Aftab nor the appellant examined. In this regard the Drug Court has observed as follows:‑ "No doubt in the cross‑examination the complainant admits that he did not examine any person from the newspaper to find as to who had got the advertisement published and that he could not say it anybody could give any advertisement. However, the presumption under section 114(F) would arise against the accused, that the common course of the business has been followed in this particular case. The presumption would be, unless otherwise proved, that this advertisement was got published by the beneficiary of the advertisement. The presumption is further strengthened by admission of accused that he had got advertisement published in Exhs. 18, 19 and

20. All the three exhibits are copies of newspaper "Ibrat" which is a Sindhi paper." 5(a). In support of the above appeal, it has been urged by Mr. Muhammad Ibrahim Soomro, learned counsel for the appellant that the learned Drug Court could not have relied upon Exhs. 5 and 6 for recording conviction without proof. 5(b). On the other hand it has been urged by Mr. Rashid Tariq Khan, learned counsel for the State that the learned Drug Court has correctly applied the presumption provided for under section 114(F) of the Evidence Act. He has further submitted that since the appellant admitted the factum of having published advertisement in some of the newspapers namely in Exhs. 18, 19 and 20, this presumption was reinforced. Mr. Soomro in furtherence of his above submission has referred to the case of Haji Ghulam Shabbir and another v. The State reported in P L D 1978 Kar. 1, the case of Alim‑ud‑Din v The State reported in P L D 1982 Leh.. 141 and the case of Khorshed A.S.P.I. Jamula v. A.S.P.I. Dossabhoy Mamula reported in P L D 1960 (W.P.) Kar.

178. Whereas Mr. Tariq has referred to the case of Muhammad Luqman v. The State reported in P L D 1969 Leh.

257. In the first case relied upon by Mr. Soomro a learned Single Judge of this Court while considering the question of evidentiary value of a newspaper report observed that the contention that the story of an incident as printed in a newspaper had no evidentiary value is a proposition, which can hardly be disputed as a proposition of law. In the second case a Division Bench of the Lahore High Court while considering the provisions of sections 3 and 9 of the Evidence Act held that newspaper reports may be admissible in evidence When testimony of an eye‑witness is not readily available. It was further held that if eye‑witnesses are available, no reliance can be placed in news items published in the newspaper, particularly when source of information forming basis of news not known or disclosed. In the third case a learned Single Judge of the erstwhile High Court of West Pakistan at Karachi Bench, while dealing with a divorce case under the Parsi Marriages and Divorce Act, 1936 and while considering section 65 of the Evidence Act held that a newspaper is not a secondary evidence of fact contained therein. In the case referred to by Mr. Rashid Tariq, the facts were that the accused after committing a murder was surrounded by people and was questioned by them about the occurrence but he remained mum. It was held by a Division Bench of the Lahore High Court that from the accused's above conduct, an adverse inference under section 114 illustration (b) of the Evidence Act can be drawn against the accused.

6. From the above‑quoted portion of the judgment of the learned. Drug Court, it is evident that the learned Drug Court was of the view that a presumption under section 114(F) could be raised against the appellant as inter alia he has not examined anybody from the newspaper and that this presumption was reinforced by the factum that the appellant had given some advertisement in some other newspapers reflected in Exhs. 18, 19 and

20. In our view in a criminal case the burden of proof squarely lies on the prosecution. From the above cited three cases, it is evident that any report in the newspaper has no evidentiary value unless somebody is examined to prove the contents thereof. In A the present case the factum that appellant gave the advertisement in daily Aftab or in the souvenir was disputed by the appellant. The appellant was able to bring some evidence on record to cast serious doubt on Exh.6. Admittedly Mahmood Ayaz was an office‑bearer of the Society which caused publication of the souvenir containing advertisement Exh.6. He has deposed as observed herein above that factually Dr. Zafar had given that advertisement. There is no evidence in rebuttal to the above piece of evidence on record. In our view, the learned Drug Court committed error in presuming that the appellant must have been the person who had given the above advertisement in Exh.6 Similarly, they else committed error in holding that a presumption attaches under section 114(F) of the Evidence Act that since the appellant was the beneficiary under the advertisement he must have given the same for publication. We are inclined to hold that it was incumbent upon the prosecution to have examined someone from the above daily newspaper Aftab to prove the factum that the appellant was the person who had given the advertisement. It was not for the defence to have examined someone from the above newspaper in order to prove in the negative that he was not the person who caused the publication. The burden is always to prove an affirmative fact, once an affirmative fact is proved than the burden is shifted to prove in the negative. In the present case the prosecution failed to discharge the initial burden and, therefore, the burden was not shifted on the appellant to prove the fact in the negative.

7. As regards the case relied upon by Mr. Tariq, it will suffice to observe that the same has no application. In the above case the accused was surrounded after the commission of the murder. He was questioned by the people as to the occurrence instead of denying or explaining anything he kept mum. In these circumstances it was held that an adverse presumption under section 114 illustration (b) of the Evidence Act can be raised because of the above conduct of the accused. However, it may be pointed out that the above conduct was not the only piece of evidence for the purpose of recording conviction or sustaining conviction against the accused. There were other pieces of evidence, to which the above presumption provided corroboration. In the present case there is no evidence from the side of the prosecution to prove the factum that the appellant was the person who had caused the publication of the advertisement in the souvenir Exh.6 or in the above daily Sindhi newspaper Aftab Exh.5. We are also of the view that merely the fact B that the advertisement might have benefited the appellant would not justify raising of presumption against the appellant under section 114(F) of the Evidence Act. The possibility of someone inimically disposed towards the appellant might have caused the publication, cannot be ruled out. For the aforesaid reasons, the appeal is allowed and the conviction and sentences are set aside. Since we have not maintained the conviction and sentence, we are also not inclined to maintain the order of the learned Drug Court for the prosecution of the appellant under section 471, P.P.C. for the alleged production of the forged documents Exhs. 16 and

17. S.A. Appeal accepted.