' MUHAMMAD JEHANGIR ARSHAD, J.---As both these revisions arise out of the same judgment dated 11-11-2011 of the learned Additional Sessions Judge, Gujrat, therefore, are being disposed off through this single order.
2. Both the petitioners are aggrieved of the judgment dated 11-11-2011 passed by the learned Additional Sessions Judge, Gujrat whereby the appeal filed by the petitioners against their conviction under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 passed by Judicial Magistrate lst Class, Gujrat on 22-10-2011 was dismissed.
3. Briefly stated the facts are that both the petitioners were booked by Police Station, Lari Adda, Gujrat vide F.I.R. No,202 of 2010, dated 28-6-2010 for manufacturing, transporting as well as being in possession of intoxicants.
4. After investigation, the chalian was submitted before the learned trial Court and the learned trial Court after charging both the petitioners under the above noted articles recorded evidence and ultimately finding them guilty of charge and punished them as follows on 22-10-2011:-- (i)3 years' R.I. Each along with Fine of Rs,10,000 each under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 in case of non-payment of fine to further undergo S.I. For 3 months' each.
(ii) 2 years' R.I. Each along with Fine of Rs,5,000 each under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 and in case of non-payment of fine to further undergo 2 months' S.I. Each.
' Besides extending the benefit of section 382(b), Cr.P.C., the learned trial Court also directed that the sentences to run concurrently.
5. Against the above noted judgment of the learned trial Court, both the petitioners filed appeal but the same was also rejected by the learned Additional Sessions Judge, Gujrat on 11-11-2011, hence these revisions.
6. Vide order of this Court dated 19-4-2012 concerned Superintendent, District Jail, Gujrat was directed to submit the detailed report about the served or un served period of sentence of the petitioners including remissions, if any. Accordingly, Superintendent, District Jail, Gujrat has submitted his report dated 28-4-2012, according to which till 28-4-2012 the unserved period of sentence of Muhammad Jamshed, petitioner was 1 year, 10 months and 07 days whereas said period of Wajid Ali, petitioner remained 1 year 10 months and 14 days.
7. At the very out and rightly, so learned counsel for the petitioners submitted that the petitioners could neither convicted nor punished simultaneously under Articles 3 and 4 of Prohibition (Enforcement of Hadd) ' Order, 1979, the contention is that if some narcotics kept for sale that the element of possession by the holder is necessarily present under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, learned counsel support of his contention has placed reliance on 1992 SCM R 108 (Shariat Appellate Bench) and 2004 Shariat Decisions 625. On the other hand learned Deputy Prosecutor-General Punjab for State has not been able to satisfactorily repel the above noted contention of the learned counsel for the petitioners. The honourable Supreme Court of Pakistan in 1992 SCM R 108 (Shariat Appellate Bench) in express terms held :-- {{URDU TEXT}}
8. In the light of the above noted declaration of law by the apex Court, this Court has no option but to agree with the contention of the learned counsel for the petitioners. Resultantly, the conviction of both the petitioners under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 is set aside being without lawful authority and to this extent these revision petitions are accepted.
9. However, on the question of merits under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979, learned counsel for the petitioners submits that the vehicle carrying disputed narcotics was owned by one Muhammad Iqbal who was never arrested nor prosecuted whereas the appellant being the employees were made scapegoat and further the report of the medical examiner was never put to the petitioners while recording their statements under section 342, Cr.P.C., learned counsel further argued that even the learned Additional Sessions Judge in para 9 of the impugned judgment directed disciplinary proceedings against the Investigation Officer of the case namely Qaiser Abbas, A.S.-I. Who deliberately omitted to join owner of the vehicle namely, Muhammad Iqbal apparently due to extraneous consideration, learned counsel for the appellant after making the above mentioned submissions finally argued that as the petitioners never derived any financial benefits from the said narcotics and were acting as employees, therefore, it would be in the fitness of justice, if, in the light of the report of the Superintendent, District Jail, Gujrat the sentence of imprisonment as imposed by the learned trial Court is reduced to one already undergone specially when the petitioners are the first offender and there is no adverse previous record against them.
10. On the other hand, learned Deputy Prosecutor-General Punjab for State has strongly opposed these petitions by arguing that in view of the consist judgments of the to two Courts below holding them guilty of the charge and further the fact that both the petitioners were caught red-handed while A carrying the narcotics in the vehicle, therefore, both these revisions petitions to be dismissed being without force.
11. Criminal Miscellaneous Application No,92-1,- of 2011 filed by the petitioner Muhammad Jamshed in Criminal Revision No,7-L, of 2011 has no force, in view of the proposed judgment deciding this Revision Petitions on merits, no order is called for in this criminal miscellaneous, which is accordingly disposed of.
12. I have considered the above noted contention of the learned counsel for the petitioners and have also perused the original record. Admittedly, the vehicle carrying the narcotics was owned by one Muhammad Iqbal who was neither investigated nor joined with the investigations by ' the I.O.
During investigation compelling the learned Additional Sessions Judge to express his strong displeasure over the conduct of I.O. And also recommending action against him who allegedly omitted to join the owner due to extraneous consideration. However, this fact alone cannot be considered for holding the petitioners innocent or not guilty of the charge. In view of the cogent evidence produced by the prosecution both the Courts below while deciding the matter consciously applied there judicial mind and committed no illegality or irregularity, therefore, no exception can be taken to the impugned judgment and conviction of both the petitioners under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 is maintained and both the petitions are dismissed. However, the fact that both the petitioners have undergone 1 year and 3 months of sentence and they being first offender and further original owner of the vehicle was not prosecuted, the court feels that the end of justice would be sufficiently met, if these sentences of both the petitioners is reduced to one already undergone till date with the further direction that both the petitioners would deposit fine of Rs,2,000 each with the learned trial Court before their release and warrants of release .Would not be issued till they have deposited the amount of fine.
With the above modification in sentence, both these revision petitions are dismissed.