FAKHRE ALAM, J.---Ejaz Hussain was proceeded against under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (herein--after referred to as the Order) and ultimately sentenced thereunder to three years' R.I., whipping numbering 10 stripes and fine of Rs.2,000 or in default to further undergo three months' S.I. By filing an appeal to this Court, the convict has assailed his conviction and sentence.
2. Facts material for the disposal of this case are that on 11-8-1984 as usual the excise staff was checking vehicles for narcotics when at about 6-30 a.m. a wagon coming from Peshawar arrived there. On suspicion the accused was brought down from the wagon and from his personal search, 70 grams Heroin wrapped in an envelope was recovered from the underwear which he was wearing. At the trial as many as six witnesses were examined by the prosecution in support of the charge. When questioned, the plea of the accused was that of innocence. He further stated that some powder was secured by the excise staff from the wagon and not from him.
3. Without going into the intricacies of the facts of the case, we find that the charge against the accused was framed by a Magistrate 1st Class and all the evidence was recorded by him where after the of the case was entrusted to Qazi Habibur Rehman's Anjum, Magistrate empowered under section 30, Cr.P.C. Who only examined the accused then passed the judgment. After the amendment brought in law the subject on 26-12-1983, only a Court of Sessions or in Punjab and N.- W.F.P. a Magistrate empowered under section 30, Cr.P.C. Could try an accused under Article 4 of the Order (ibid) wherein if the quantity of Heroin is more than 10 grams the sentence of imprisonment for life has been provided. All the proceedings in the case i.e. Charge and recording of evidence were conducted by a Magistrate Ist class a Court not competent to do so. Such being the case, we wanted remand the case for retrial but keeping in view that the quantity the Heroin allegedly recovered from the appellant is not large and that he had remained behind the bars for more than eight months, decline to order retrial and set aside his conviction and sentence. Ejaz Hussain, appellant shall be released forthwith if not required in of other case.
S.A. Acquittal ordered.