' FAKHRUDDIN H. SHAIKH, J.-The appellant was convicted by First Class Magistrate Wah Cantt. By his judgment dated 16-4-195 of offence under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to three years' R.
1. And whipping numbering 15 stripes and to pay a fine of Rs, 2,000 or in default to undergo R. I. For one year. He has challenged his conviction and sentence by this appeal.
2. The prosecution case is that Excise Inspector Mr. Abdul Rashid received spy information that a person travelling in a bus coming from Peshawar is in possession of Charas. He took with him Munammad Anwar Excise Constable, Ch. Aftab Ahmad, S. H.
0. Of Taxiia and other Excise and Police officials and waited at Margala Check. Post. Meanwhile a G.
T. S. Bus arrived from Peshawar side which was stopped by Mr. Abdul Rashid for checking. On the pointing of the spy, the appellant was asked to get down from the bus. 'His person was searched and it is alleged that 7,703 gm of Charas was found concealed in his garments. The Cnaras was wrapped in polythene. Mr. Abdul Rashid then recorded F. I. R., sealed the Charas in a packet after separating some portion for being sent to Chemical Examiner. The separate portion was also made into sealed parcel. This had happened on 8-7-1984 at 3-45 p.m. After. Usual investigation the case was sent up for trial. The plea of the appellant is that he has been involved due to enmity.
3. In support of the prosecution case there is evidence of Abdul Rashid (P. W. 1), Muhammad Anwar (P. W. 2) and Ch. Aftab Ahmad (P. W. 6j S. H. O. Taxila. Other witnesses namely Muhammad Ameer, A. S. I. (P. W. 3), Faiz Ahmad (P. W. 4) and Ahmad Hussain, (P. W. 5) F. C. Are in respect of preservation and delivery of parcel to the Chemical Examiner.
4. We have gone through the record and find that all the three eyewitnesses namely Abdul Rashid (P. W. 1), Muhammad Anwar (P. W. 2) and Ch. Aftab Ahmad (P. W. 6) have fully supported the prosecution case and stated that the person of the appellant was searched and 7,700 gm of Charas was recovered from his possession. The report of the Chemical Examiner is also on record which shows that the samples which was sent to him was Charas.
5. The learned counsel for the appellant Syeda Yasmin Salari has argued that no public man was associated with the search and, therefore, the Investigating Officer has violated section 103 of Cr. P.
C. The argument has no force, because section 103, Cr. P. C. Applies to search of places and not to personal search. It has further been urged that since the appellant was sitting in a vehicle and 'vehicle' fails within the definition of 'place', therefore, compliance with section 103 was mandatory.
The argument is not sound. The Excise Inspector had not taken search of the bus in which the appellant was travelling. The appellant was asked to get down from the bus and then his person was searched, therefore, provisions of section 103 were not strictly applicable. Reference in this connection has been made to the case Muhammad Afzal v. The State (1). In this case the police had searched Haveli in which appellant Muhammad Afzal was reported to be living. During the search a gun was recovered by the police without associating any person of the locality with the search, (1)1983 SCMRI ' It was held by the Supreme Court under the circumstances that the recovery was not proved due to non-compliance of section 103, Cr. P. C.
6. The present case is distinguishable from the case of Muhammad Afzal referred to above. In the case of Muhammad Afzal the Haveli was searched and, therefore, it was held that independent person from the locality should have been associated by the police with the search. In the present case no place or vehicle was searched. It was appellant, who was travelling in the bus and who was asked to get down and thereafter his person was searched. Therefore, the case cited above is not of any help to the defence.
7. The learned counsel has also referred to the case of Ali Gul v. The State (1), in which a learned Single Judge of Karachi High Court held that even personal search under section 103, Cr. P. C. By a police, if held without associating respectable inhabitants of the locality with the investigation, shall be deemed to be in contravene of section 103, Cr. P. C. With due respect to the learned Judge, we are not in clind to accept the view taken in the above case, because it runs counter to the principle laid down by the Supreme Court in 1983 SCMR 1 and also to the language in which section 103, Cr.
P. C. Is couched. Subsection (1) of section 103 reads as under :- "Search to be made in presence of witnesses (1) Before making a search under this Chapter, the officer or other person about to make it, shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do."
' It would appear from the clear reading of section 103, Cr. P. C. That it applies to search of places.
8. Much emphasis has been laid by the learned counsel for the appellant on non-compliance of section 340, Cr. P. C. As amended by Ordinance XII of 1985 enforced on 21-2-1985. Subsection (2) of section 340 which has been relied upon reads as under :- "Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial : ' Provided that he shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or for which he is being tried, or is of bad character, unless :- (i)the proof that he has committed or been convicted or such offence is admissible in evidence to show that he is guilty of the offence with which he is charged or for which he is being tried ; or
(ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character ; or
(1) 1980 P Cr. L J 407
(iii) he has given evidence against any other person charged with or tried for the same offence."
From the very language of the above section it would appear that right has been given to an accused person to give evidence on oath in disproof of the charges or allegations made against him. It was thus the duty of the D accused to exercise this right by pleading before the Court that he intends to give evidence on oath. The appellant was represented by a counsel before the trial Court. Therefore, it is expected that the appellant was fully aware of this right. In spite of this he did not make any statement before the Court that he intends to give evidence on oath. Neither the appellant nor his counsel made any application to the Court for exercising the right under subsection (2) of section 340. The appellant was given full opportunity to produce the defence.
While recording his statement under, section 342, Cr. P. C. a specific question was put to him whether he would give evidence to which he replied in the affirmative and did examine one witness in defence namely Muhammad Ashraf (D. W. 1). Thereafter, he gave statement that he closed his evidence. It may be stated that by the time his evidence was closed, amendment in section 340, Cr. P. C. Had not come into force. The trial had concluded on 19-2-1985 whereas the amending Ordinance came into force on 21-2-1985. Hence for this g reason also non-compliance with the amended section 340, Cr. P. C. Cannot be urged in support of the plea that the trial was vitiated on account of any irregularity. In any case under section 340(2), Cr. P. C. It is the right of the accused to apply to the Court that he intends to give evidence on oath. The duty of the Court ends as soon as the Court puts a question to the accused whether he intends to produce evidence in defence.
The Court was not bound to remind the appellant that he has a right to give evidence on oath. The duty of Court ends as soon as the accused is asked to produce evidence in defence if any. In spite of this opportunity having been given, if the accused does not choose to exercise his right under section 340 (2) as amended by Ordinance XII of 1985, no irregularity shall be deemed to have been committed by the Court.
9. The learned counsel for the appellant has next urged that the trial Court has wrongly convicted the appellant under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979, because he was simply found in possession of Charas. It is not proved that he was transporting the Charas. The fact that he was travelling in a bus would not be sufficient to hold that he was guilty of transporting the Charas. It is not known as to where F from he had started and what was his destination. In the absence of antecedents of the appellant that he was a smuggler or a dealer in Charas or a transporter of Charas on hire or otherwise, it cannot be held definitely that the appellant was guilty of transporting the Charas. Simply he was found travelling in a bus. The learned counsel for the State also concedes that the offence proved against the appellant shall amount to possession of Charas punishable under Article 4.
10. We agree with the contention that the conviction in this case should have been under Article 4 and not under Article 3 of the said Order. We, therefore, convert the conviction from Article 3 to Article 4 of the said Order. So far as the sentence is concerned the Article 4 provides maximum sentence of 2 years or whipping and fine. The appellant has already suffered detention for a period of 11 months during the trial. We, therefore, reduce the period of imprisonment to the period already suffered, but maintain the sentence of whipping and fine as awarded by the trial Court.