HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.449 of 2019
Appellant : Sheikh Junaid Iqbal son of Shaikh Iqbal
Hussain, through Mr. Abdul Shakoor, Advocate.
Respondent : The State through Ms. Seema Zaidi,
Deputy Prosecutor General, Sindh along with SIP Muhammad Tariq, P.S. KIA, Karachi.
Date of hearing : 29.08.2019
Date of Judgment : 29.08.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Appellant Sheikh Junaid Iqbal son of Shaikh Iqbal Hussain has filed this appeal challenging the order dated 06.08.2019 passed by the learned Consumer Protection Court, Karachi (East), in Complaint No.03 of 2019, filed by the Complainant namely, Aurangzeb son of Muhammad Saleh under Section 26 of Sindh Consumer Protection Act, 2014, whereby the appellant has been convicted under Section 33(2) of Sindh Consumer Protection Act, 2014 and sentenced him for one (1) year S.I. with fine of Rs.100,000/- on account of non-compliance of order dated 31.05.2019; in default in payment of fine, it was further ordered that appellant shall suffer further S.I. for three months.
2. The brief facts of the prosecution case leading to the filing of this appeal are that on 03.02.2019 at about 05:35 p.m., he went to Bin Qasim Store and purchased some items (plain Brady’s bread and Dawn bread both small size), so also other items and thereafter, made payment at counter, where he was attended by one namely Noor Ghulam, who after receiving payment issued computerized original receipt. Thereafter, at night hours, he eat such breads and thereafter, slept, but suddenly at midnight, he wakeup and was not feeling well. Resultantly, vomiting started and did not sleep comfortably whole night and in the morning, when he saw remaining slices of bread had become moldy and he checked wrappers of such breads, he shocked to see that no manufacturing date, expiry date or even price was mentioned on both breads, which is mandatory duty of manufacturer. It is also alleged by the complainant that Bin Hashim Store had not exhibited price of breads at the place, where said breads were lying and even the receipt issued by them is not proper, as such, the same does not show batch number, manufacturing date or expiry date, meaning thereby that Bin Hashim Store has not fulfilled obligations as required by Sindh Consumer Protection Act, 2014. It is further alleged by the complainant in his complaint that due to poisoning moldy breads, he sustained physical trouble and could not sleep at night and sustained mental torture and agony. Thereafter, complainant issued legal notice to the appellant, which has not been replied by the appellant. Hence, this complaint.
3. That after filing of complaint, trial Court issued summons to the parties, including appellant, who filed his written statement by denying all the allegations as leveled by the complainant against him and stated that they used to supply the bread to various stores and on the second day, unsold stock is taken back, as such, complainant has filed the said complaint solely on the malafide basis, which may be dismissed.
4. That on 06.04.2019, trial Court recorded the evidence of complainant namely, Aurangzeb, who produced purchasing receipt of Bin Hashim Store, shoppers/wrappers of Dawn bread and Brady’s bread, legal notice along with original TCS receipts, confirmation reports, original returned envelope by Bin Hashim Store, reply of legal notice by Dawn bread and original invoice regarding professional fee of advocate at Ex.C/1 to Ex.C/13 respectively. Thereafter, Counsel for the appellant closed the side vide statement.
5. That on 20.04.2019, trial Court recorded the evidence of appellant before the trial Court, at Ex.D to Ex.D-3 respectively, and representative of Bin Hashim Store produced copies of payment receipts of Brady’s bread and Dawn bread at Ex.D/1 & Ex.D/2 respectively.
6. Mr. Abdul Shakoor, learned Counsel for the appellant contended that appellant is innocent and has been falsely implicated in this case due to malafide intention and ulterior motives; that if there was no manufacturing and expiry date mentioned on the bread, then complainant should not purchased the same; that merely on oral assertion, the damages/fine cannot be granted/imposed; that appellant is doing food business for the last nine (9) years, but during this intervening period, no specific complaint has been filed against the appellant from any corner; that if the appellant has not possessed the required documents, then why any Food Authority has not taken any action against the appellant; that the appellant is doing business since last nine (9) years and fulfilling all the requirement with the satisfaction of the higher authorities; that complainant has made complaint against the appellant without any proof that he was fallen ill after eating the bread manufactured by the industry of the appellant and no doctor report is on record that the complainant was fallen ill because of eating the bread; that as per Show Cause Notice for compliance, vide order dated 06.08.2019, it is clearly mentioned that appellant was given time for only one hour, which is quite unjust, improper and against the principle of natural justice, hence, the impugned order passed by the trial Court is liable to be set-aside; that appellant himself appeared before the trial Court and requested for seeking time to furnish legal requirement, but the said request has not been considered lawfully by the trial Court and passed the impugned order in a haste manner.
7. Learned Deputy Prosecutor General, Sindh has supported the impugned order by stating that the impugned order is perfect in law and on facts and further submits that the appellant has been convicted and sentenced in this case for non-compliance of Court’s order dated 31.05.2019, which the appellant has admitted himself.
8. I have given my anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before me.
9. After going through the record, I have come to the conclusion that the complainant has failed to prove its’ case against the appellant for the reasons that as per the version of complainant that he purchased two breads namely, Dawn Bread and Brady’s Bread from Bin Hashim Store, and thereafter, he eaten the same on dinner and at midnight, he felt some pain in his stomach and resultantly, started vomiting and whole night he could not sleep comfortably. In order to prove this fact, no doctor report in this regard is available on record to ascertain whether actually the complainant was fallen ill on the said date because of eating of such breads. Nothing on record that when the appellant was fallen ill, then why he did not approach to any doctor for his treatment. No supporting evidence of the claim of the complainant is on record. Merely oral assertion of the complainant in this behalf is not enough to blame the appellant. It is an admitted fact that appellant is running his business for the last nine (9) years, but during this intervening period, no any purchaser has made any complaint against the appellant regarding selling of substandard quality breads, or any other items made in his food industry. It also appears from the record that case and claim of the complainant has been denied by the appellant in his written statement and evidence. The appellant has been cross examined by the complainant side, but no favorable answer in favour of the complainant comes on the record. Despite all these facts, learned trial Court in his order dated 31.05.2019, issued certain directions to the appellant for compliance within thirty (30) days. It is noted that according to the case papers, on 06.08.2019, case was fixed for compliance of aforesaid order, it appears that on the said date, appellant was appeared before the trial Court, but the trial Court has issued Show Cause Notice to the appellant for non-compliance and its reply was ordered to submit within one hour, which is apparently quite unjust and improper as well as against the principle of natural justice and in violation of Article 10A of the Constitution of Islamic Republic of Pakistan, 1973, which provides fair trial, but from the perusal of record, no opportunity of fair trial has been given by the trial Court to the appellant.
10. As per contentions of learned Counsel for the appellant that the trial Court while putting the appellant in fear and then convicted and sentenced him as stated above. It also appears from the record that during compliance period, the appellant was out of country and according to the Counsel for appellant, though appellant has made partially compliance of the order of the trial Court, but learned Judge inspite of this fact and without giving him an opportunity of fair trial, convicted and sentenced him. Apart from the above, record also reflects that appellant has already remained in jail for three (3) days for no fault to him. Nothing on record that the present appellant is a habitual offender or he remained indulged in any wrong activities or previously convict in past.
11. Admittedly, in this case, there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1993 SCMR 1345, wherein the Hon’ble Supreme Court has held as under:-
“The concept of benefit of doubt to an accused person are deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”
12. For the above stated reasons, while respectfully relying upon the above cited case law, I have no hesitation to hold that complainant has failed to prove its’ case against the appellant beyond any shadow of reasonable doubt. Consequently, Appeal is allowed, conviction and sentence awarded by the trial Court vide order dated 06.08.2019 are set-aside. Appellant is acquitted from the charge. Appellant is present on bail, his bail bond is cancelled and surety stands discharged.
13. Before parting with this judgment, I direct the appellant to remain careful in future and shall also abide the law and regulations to run his business applicable thereto.
JUDGE
Faizan A. Rathore/PA*